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Cite as: [2015] IEHC 76
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Judgment
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Neutral Citation: [2015] IEHC 76 THE HIGH COURT JUDICIAL REVIEW [2011 No. 317 J.R.] BETWEEN B.A. (NIGERIA) APPLICANT AND
THE REFUGEE APPEALS TRIBUNAL, THE MINISTER FOR JUSTICE EQUALITY AND LAW REFORM, THE ATTORNEY GENERAL AND IRELAND RESPONDENTS JUDGMENT of Mr. Justice Eagar delivered on the 11th day of February 2015 1. This is a telescoped application for an order of certiorari quashing the decision of the first named Respondent and seeking an order remitting the appeal of the Applicant for determination de novo by a separate member of the Refugee Appeals Tribunal. 2. The Applicant is a citizen of Nigeria. She was born on the 24th June 1979 in Nigeria. The Applicant arrived in Ireland on the 16th September 2009 and applied for refugee status. She was interviewed in relation to her asylum application by the Refugee Applications Commissioner who then recommended that her application be refused. An appeal was submitted to the Refugee Appeals Tribunal but she was never notified of her hearing date and the Minister for Justice and Law Reform refused her application. 3. She engaged the services of Messrs Trayers Solicitors and pursuant to s. 16 of the Refugee Act 1996 (as amended) her application to re-enter the asylum process was successful. On the 20th October 2010 she completed an ASY1 form and a questionnaire and was interviewed by the Refugee Applications Commissioner on the 20th January 2011. She was notified by letter dated 3rd February 2011 that the Commissioner had refused her refugee status. A notice of appeal and supportive submissions were submitted to the Refugee Appeals Tribunal to the first named Respondent by letter dated the 9th February 2011 and her oral hearing was heard on the 28th March 2011. By letter dated the 31st March 2011 she was notified that her appeal was unsuccessful and her solicitors on her instructions have made this application for judicial review. The Applicant’s claim 5. In response to the presenting officer she said she was 26 years of age when her grandmother died and agreed that her grandmother would have died in 2006/2007. She was cross examined by the presenting officer in relation to details that she had forgotten (like the name of Gloria’s bar) in her initial application for asylum and agreed that she did not know the names of Gloria’s children. When asked what her grandmother did for a living the Applicant said her grandmother did not work but she had a small shop in front of her house. When asked why she could not have continued living in her grandmother’s house after her grandmother died and continue running the shop the Applicant said she was scared to live alone. The Applicant confirmed that she was living with a lady in Ireland whom she had met at a church. When asked if she could have refused to work for Gloria and return to her grandmother’s home, the Applicant said she wanted to start an education. She stated she had intended to go to Ilorin University to study business and confirmed that she completed her West African Examinations. The Applicant stated she could not move to another part of Nigeria as she did not know anyone. She said that the only person she told about her forced prostitution was D.K. who was a friend. It was put to the Applicant that there were NGOs and other organisations in Nigeria who could provide her with assistance but the Applicant said she did not know anyone or anywhere. 6. The Applicant confirmed Gloria’s address and provided the address of Gloria’s restaurant. When asked if she had reported Gloria to the Irish police the Applicant replied that she had not. When asked if she could report Gloria to the police in Nigeria the Applicant said Gloria had a lot of money and connections. She was cross examined about her travel to Ireland through Turkey. Analysis of the Applicant’s claim
2) The Applicant was unable to remember when her grandmother had died. 3) Generally the Applicant’s account was contradictory and inconsistent and seriously undermined the credibility of her claim. 4) The Applicant was unable to state when she began working as a prostitute. Considering the significance of this event the Applicant’s age and education it would be reasonable to expect that the Applicant would be able to provide a more detailed account of when she was forced into prostitution and this further undermined her account. 5) The Applicant did not when transiting through Turkey apply for asylum, and that this was not indicative of a person fleeing persecution. 8. The first named Respondent then considered the issue of State Protection with a comment at the beginning: “Further were the Applicant’s account credible (which it is not)”. The first named Respondent stated that if persecution does not emanate from a State it has to be demonstrated that the state is unwilling or unable to provide protection and quoted the US Department of State Trafficking Report of 2010. This report was provided for the court in these proceedings by way of an affidavit of Francis Essex, an executive officer of the Refugee Appeals Tribunal. The report outlined the efforts of Nigeria in seeking to deal with the issues of trafficking and that traffickers and persons who forced women into prostitution in Nigeria. They can be arrested and convicted. The first named Respondent adds that “while it is undoubtedly the case that the police force in Nigeria is in need of vast improvement, it is also the case that sustained efforts have been made by the authorities to combat trafficking and forced prostitution”. Internal Location Submissions 11. Counsel on behalf of the Applicant also said it was unclear whether the Tribunal accepted the core claim element of the Applicant’s claim and that she had been forced into sex slavery and that her life had been threatened. 12. The finding in respect of State protection against traffickers was irrelevant in circumstances where the Applicant is not and never claimed to be a victim of trafficking. 13. The finding in respect of internal relocation was made without any regard to the evidence of the Applicant or the country reports. The Tribunal had failed to identify, even in general terms, a location where the Applicant could live in safety for the long term. 14. Counsel on behalf of the first named Respondent argued that the Tribunal had found the Applicant’s account incredible and that if contrary to its findings her claim was considered credible she could have availed of State protection in Nigeria and could have avoided the alleged prosecution by relocating within Nigeria. 15. Counsel for the Respondent detailed the interviews with the Applicant and submitted that the Applicant had been unable to offer a consistent or detailed account of when she was forced into prostitution. Counsel on behalf of the first named Respondent submitted that the Nigerian authorities did not ignore purely domestic sexual servitude. The starting point is the presumption that in the absence of clear and convincing proof to the contrary, a State is presumed to be capable of protecting its citizens. 16. Counsel for the Respondent also submitted that internal relocation would be a viable alternative and that the manner in which the Tribunal addressed the issue of internal relocation was entirely appropriate. He also submitted that it was not necessary for the Tribunal to identify in its decision a putative sight of relocation in Nigeria in order to assess the reasonableness of expecting the Applicant to relocate. Discussion
21. There seems nothing incredible about the general account of the Applicant in this case. The first named Respondent does not seem to deal with the life of the Applicant in that her parents died when she was five, she was reared by her grandmother and when her grandmother died she found herself dependent on a neighbour who then took advantage of her. The first named Respondent appears not to have dealt with the Country of Origin Information contained in the UK Border Agency Report of the 9th July 2010 and in particular the difficulties that Nigerian women face in the exercise of their civil liberties. The finding of an expectation that the Applicant being an adult should apply whilst in transit in Turkey are in my view not a core issue but a peripheral one. It appears to me that it is natural to assume that the person would in these circumstances rely on the agent who accompanied the Applicant to find that the decisions on credibility in these circumstances appear to avoid the perfectly simple explanation that if a person pays an agent they will rely on the agent who accompanies them to the country which the agent has decided as the country of destination. This seems to me to be a principled approach to the issue. 22. The first named Respondent in dealing with the issue of state protection appears again to avoid the issues raised in the country of information documentation from the UK Border Agency. Whilst the Nigerian government have tasked the Nigerian Human Rights Commission with monitoring and protecting human rights the commissions operations were limited by insufficient funding, could only make non binding recommendations to the government. Since the end of military rule in 1999 the human rights situation in Nigeria has improved significantly but human rights defenders working in certain regions of the country are certain human rights issues will continue to face serious challenges. Further some issues like corruption, good governments and impunity are also particularly sensitive and human rights defenders including media practitioners may face retaliation for their work documenting and denouncing abuses. Furthermore despite improvement since the military rule ended the legislative framework remains insufficient to ensure adequate protection to the work of human rights defenders. The report continues to deal with the issue of forced and early marriages and the difficulties for women in freedom of movement. 23. In relation to the issue of internal relocation the Country of Origin Information of the UK Border Agency states that Nigerian women face severe limitations in the exercise of their civil liberties. Women’s freedom of movement is restricted and they are obliged to obtain their husband’s permission to obtain a passport or travel outside the country. Clearly internal relocation is legally possible but the United Nations Development Fund for Women stated that there were four scenarios for women who relocate within Nigeria in order to avoid FGM, forced marriage and domestic violence. She can approach the local church or mosque or religious establishment and seek assistance from their leadership. She can approach friends or relatives who are wiling to hide her. She can approach NGOs working on human rights however these NGOs may only be known to women in those urban settlements, town or cities where the organisations are active or she can take to the street. 24. In her answers to her Section 11 interview to the authorised officer she stated with regard to relatives in Nigeria, she said she may have relatives but she did not know them. In answering an issue of relocation to Lagos she stated that she did not know anybody there, she did not have any money and she did not know where to start from. Decision of the court |
