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Cite as: [2001] ScotCS 258

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OUTER HOUSE, COURT OF SESSION

OPINION OF LADY PATON

in the Petition of

OLATIN ARCHER

Petitioner;

for

Judicial Review of a determination of a special adjudicator promulgated on 20 March 2001 and a determination of an Immigration Appeal Tribunal notified on 9 April 2001

________________

Petitioner: Stirling, Advocate; Anderson Strathern (for McClure Collins, Solicitors, Glasgow)

Respondent: Lindsay, Advocate; Advocate General's Office

9 November 2001

Application for asylum

[1] The petitioner was born on 18 March 1979. She is a national of Nigeria. On 13 October 2000 she entered the United Kingdom as an illegal immigrant. On 15 October 2000 she was detained by police at Stranraer. She then applied for asylum.

[2] In support of her application, the petitioner provided a written statement, an excerpt dated 24 February headed "ABC News.com: 200 dead in Nigeria after religious fighting", a summary of a briefing paper dated 22 August 2000 headed "Human Rights in Nigeria: a briefing for the visit of President Clinton", and an excerpt from the Vanguard Daily dated 23 September 2000. These documents are contained in number 6/5 of process.

Reasons for seeking asylum

[3] The events leading to the application for asylum are detailed in the petitioner's written statement, and are summarised in paragraph 5 of the petition as follows:

"...[The petitioner] formerly lived with her family in Zamfara, Zamfara State, in northern Nigeria. The petitioner is Christian. The population of the northern half of Nigeria is predominantly Muslim and there was discrimination against Christians. On 27 January 2000 Sharia Law was introduced for criminal cases ... in Zamfara State. Sharia Law includes punishment by amputation and flogging. During the course of 2000 there were numerous outbreaks of violence between religious groups in Zamfara State and elsewhere in northern Nigeria. In Zamfara State, Christians found there was increased hostility towards them following the introduction of Sharia Law. They would be beaten in the street. Over time this developed into Christians being attacked in their homes. Christians were killed in their homes and their homes were burned. The police took no steps in respect of incidents which were reported to them. They accepted bribes from Muslims in return [for] not arresting them. In early October 2000 the petitioner's home was attacked while the petitioner was attending a computing class. The petitioner's parents and two sisters were killed and the family home was set on fire. The petitioner returned to the street where she lived. She saw a number of dead bodies in the street where her house was, and a number of houses, including her own, which had been set on fire. She was too frightened to go to her own house. She visited a family friend in Kaduna State. This person was also working as a mechanic on her father's car. This person offered to sell the car for her and he gave her money immediately in return. She travelled to Lagos where she was sold a forged passport and she bought an airline ticket to travel to Britain. She entered the United Kingdom on or about 13 October 2000 ..."

Refusal of asylum

[4] The petitioner was interviewed by an immigration officer. On 11 December 2000, the petitioner's application for asylum was refused. On 14 December 2000, the Secretary of State for the Home Department determined that the petitioner should be removed to Nigeria. The petitioner appealed on the basis that her removal would be contrary to the United Kingdom's obligations under the Convention and Protocol relating to the Status of Refugees 1951 (section 69(5) of the Immigration and Asylum Act 1999), and that it would be in breach of her human rights (section 65 of the 1999 Act). On 5 March 2001, an appeal hearing took place before a special adjudicator. In a determination typed on 14 March 2001 and promulgated on 20 March 2001, the special adjudicator dismissed the petitioner's appeal. The petitioner sought leave to appeal. On 9 April 2001, the Chairman of the Immigration Appeal Tribunal refused leave to appeal. On 9 May 2001, the petitioner lodged the present petition for judicial review in the Court of Session.

Determination of the special adjudicator

[5] The special adjudicator's determination (number 6/1 of process) contains a section headed "Decisions and Reasons", with further sub-headings, including the following: the appellant's claim; sufficiency of protection; and internal flight and international protection.

[6] In relation to the first sub-heading (the appellant's claim) the special adjudicator notes inter alia:

"I have commented above on the comprehensive (both in quality and quantity) account in the [Country Information and Policy Unit report dated October 2000] of Christian/Muslim violence. In none of the background material placed before me by either [the Secretary of State] or the appellant was there reported to have been any incident of religious violence in Zamfara which resulted in inter alia the burning of houses and the deaths of inhabitants whose bodies were lying in the street. The objective evidence indicated that the last incidence of religious violence involving fatalities had occurred five months earlier in Kaduna and that there had been no incidents of this kind in Zamfara.

Had such an incident occurred as is described by the appellant, I consider that the CIPU country assessment would have included a report of the incident, as it has included reports of other house burning and killing incidents, and that there would have been some report in the press, as there was with the Kaduna incident in February 2000 ...No independent account or report of this incident was produced. The appellant did not state that her friend Miriam had seen her family killed, and the appellant only spoke of seeing her house burning. There was no evidence that the appellant had since made enquiries about the whereabouts of her family or of their bodies. I consider that the appellant's account when viewed against the objective background evidence is not credible and that she does not have a well founded fear of persecution."

[7] In relation to the second sub-heading (sufficiency of protection) the special adjudicator notes inter alia:

" ... It was ... being contended in the appellant's case that there was an insufficiency of protection due to a combination of unwillingness, because the governor was a Muslim, and inability because the police did not de facto provide protection. But these contentions are inconsistent with the objective evidence which gave no accounts of reported violence in Zamfara state from which the state required to provide protection. There was similarly no evidence that de facto the police were not protecting Christians. I have also to consider the evidence of the appellant that she did not seek any assistance from the authorities either in Zamfara or Kaduna or in Lagos, and therefore could not state that she had been unable to obtain protection.

I therefore find that the appellant has failed to discharge the onus upon her of showing to the requisite standard that she is outside Nigeria owing to a well founded fear of persecution for a convention reason and that she was unable to obtain protection therefrom in Nigeria ... "

[8] In relation to the third sub-heading (internal flight and international protection) the special adjudicator notes:

"I accept [the appellant's agent Mr. McGrade's] submissions that in accordance with case law, in particular the decision of the Court of Appeal in Karanakaran v. SSHD [2000] ImmAR 271, the question which must be asked and answered is whether or not it would be unduly harsh to expect the appellant to settle, in this case, in the south of Nigeria. In addition, in answering the question, account may require to be taken of the cumulative effect of a whole range of disparate considerations. Mr. McGrade submitted that it would be unduly harsh for the appellant to internally relocate when cumulative consideration is given to the following factors:-

the appellant is a young woman aged 21 years
she has lost her immediate family and has seen her home destroyed as a result of religious violence
she has no other family to whom she can turn for support
she has never previously visited the south of Nigeria and has no friends or means of support
she has no previous employment history and no employment which she could take up on return.

I have already stated that I do not find credible the appellant's claim regarding the alleged incident in Zamfara, but if I am wrong in my assessment of credibility, and regarding protection, I consider the above factors regarding internal relocation.

With regard to the third factor, the appellant stated at her asylum interview that she was estranged from her father's siblings in Kogi state, but she also stated that her mother had a sister who lived "too far away". There was no evidence as to where in Nigeria this aunt lived, and there was no evidence to the effect that she could not turn to this relative for support. The appellant had travelled from the north of the country to the extreme south (Lagos), and thence to the UK, and it is difficult to imagine how much further away the aunt could have been than the distance which the appellant actually travelled.

With regard to the fourth factor, the appellant's evidence was that on arrival in Lagos she almost immediately befriended or was befriended by a female Christian restaurant owner who gave her free accommodation for a week and by a male Christian patron of the restaurant who gave her free assistance to obtain a forged Nigerian passport and ticket to the UK and who, during the week prior to her departure, came into the restaurant regularly to see her and they talked. She told him all about herself, she said.

With regard to the fifth factor, there was evidence that the appellant had not previously been employed, but there was also evidence that the appellant had been attending computer school and there was no evidence that she was either unfit for employment or that there was no employment which she would be able to undertake.

The appellant appears to have lived in Lagos safely and there was no evidence that she was under any kind of threat during her stay there. This account fits in well with the objective evidence regarding the south of Nigeria, which is to the effect that the south of the country is predominantly Christian and not subject to the Muslim/Christian violence which has erupted in the north following the introduction and threatened introduction of Sharia law in predominantly Muslim states. Further, it is stated at paragraph 9.10 of the CIPU country assessment that given the geographical and population size of Nigeria, internal flight is a real option for persons fearing persecution from non state persons.

Although the appellant stated that the male Christian friend had told her that incidents such as she described as having occurred in Zamfara were happening in Lagos too, this is not borne out by the country background evidence. The appellant thought that "maybe the same things happening in the north is happening here [south]", but did not venture any other basis for her contention that she would not be safe in the south of Nigeria.

On consideration of all of the relevant factors, I have concluded that it would not be unduly harsh to expect the appellant to settle in the south of Nigeria, and that accordingly she is not in need of international protection."

[9] Thereafter the special adjudicator gave a final decision as follows:

"ASYLUM APPEAL DECISION

Having considered the appellant's evidence together with the objective evidence provided, I find that the appellant has failed to discharge the onus upon her of showing to the requisite standard that she is outside Nigeria owing to a well founded fear of persecution for a convention reason and that she requires international protection.

I do not consider that the decision against which this appeal is brought was not in accordance with the law or with any immigration rules applicable to the case (section 19(1)(a)(i) of the Immigration Act 1971). The decision did not involve the exercise of a discretion by the Secretary of State or an officer (section 19(1)(a)(ii) of the Immigration Act 1971). I therefore must dismiss the asylum appeal.

HUMAN RIGHTS APPEAL DECISION

The appellant claims that her removal to Nigeria would constitute inhuman and degrading treatment contrary to Article 3 of the European Convention on Human Rights, given that her family has been killed and that she is young, female and single. My primary finding is that her claim that her parents and sisters were killed by Muslims and their house burned is not credible. Even if it were credible, internal relocation was possible and remains possible. I find that there are no substantial grounds for believing that there is a real risk of the appellant's rights under Article 3 or any other article being infringed if she were returned to Nigeria.

I dismiss the Human Rights Appeal.

The appeal is dismissed."

Judicial review: focusing the issues in dispute

[10] As noted above, on 7 May 2001, the petitioner lodged the present petition for judicial review, seeking reduction of the determination of the special adjudicator promulgated on 20 March 2001, and reduction of the determination of the Chairman of the Immigration Appeal Tribunal notified on 9 April 2001. The petitioner also sought interim liberation pending determination of the judicial review. On 12 July 2001, I granted the petitioner interim liberation on certain conditions.

[11] The petitioner's reasons for seeking reduction were summarised in paragraph 7 of the petition, under four heads, namely (i) the appellant's claim (under which heading the petitioner criticised the special adjudicator's reasons for finding the petitioner's account incredible); (ii) sufficiency of protection (which, the petitioner pointed out, should have proceeded upon an esto basis, i.e. on the basis that, for the purposes of the argument, the appellant's account was true); (iii) internal flight; and (iv) human rights appeal.

[12] In the course of submissions, counsel for the petitioner referred to productions, to a copy map of Nigeria, and to authorities, including Chinder Singh v. Secretary of State for the Home Department, 9 September 1997 (Lord Kingarth); Karanakaran v. Secretary of State for the Home Department [2000] 3 All ER 449; Kaja v. Secretary of State for the Home Department [1995] ImmAR 1; Nazim Sattar, petitioner, 24 May 2001 (Lord Mackay of Drumadoon); and Horvath v. Secretary of State for the Home Department [1999] I.N.L.R. 7.

[13] On the second day of the hearing, counsel for the respondent advised the court that the respondent accepted that the special adjudicator's determination was flawed so far as relating to heads (i) and (ii) - the petitioner's credibility and sufficiency of protection. In relation to the petitioner's credibility, counsel accepted that the special adjudicator appeared to have relied upon the CIPU country assessment as being an exhaustive record of events in Nigeria, whereas according to its author, it merely endeavoured to give a representative sample of events in Nigeria, and did not claim to be exhaustive. While counsel for the respondent did not go so far as to accept that the events described by the petitioner had in fact occurred, it was accepted that the special adjudicator had not been entitled to use the CIPU country assessment as a basis upon which to form an adverse view of the petitioner's credibility.

[14] In relation to sufficiency of protection, counsel for the respondent accepted that, if the petitioner's account of events were taken to be true (solely for the purposes of argument, and on an esto basis) the petitioner had not de facto received protection from the police.

[15] The issues remaining in contention were accordingly reduced to (iii) internal flight, and (iv) human rights appeal.

Internal flight: submissions

[16] The petitioner's submissions on the issue of internal flight and international protection were summarised in paragraph 7(iii) of the petition in the following terms:

"The special adjudicator had five matters referred to her for consideration of the question of internal flight. In her determination she notes these five matters but only deals ... specifically with three of them. She does not deal with these matters on a cumulative basis but only considers them individually. With regard to the third factor the special adjudicator presumes that the petitioner's aunt could support her. With regard to the fourth factor she fails to relate the relevance of evidence about a person who sold her a forged passport and of someone who allowed her to sleep in a restaurant for a week to the question of whether or not it was unduly harsh to expect the petitioner to relocate elsewhere in Nigeria rather than to flee the country. With regard to the fifth factor the special adjudicator states that there was no evidence that the petitioner was unfit for employment or that there was no employment she would be able to undertake. She fails to have regard to the evidential material showing that the Nigerian economy was moribund and that there were hundreds of thousands of half educated young people looking for non-existent jobs. She fails to consider whether it would be unduly harsh for a 21-year-old woman to try to seek protection elsewhere without family or friends to support her and with no history of employment."

[17] Counsel for the petitioner accepted - correctly, in my view - that if it could not be established that there was nowhere in Nigeria where the petitioner would be free of persecution, the petitioner did not qualify as a refugee entitled to seek international protection under the Convention and Protocol relating to the Status of Refugees 1951. Counsel further accepted that Zamfara state was predominantly Muslim, and was situated in the north of Nigeria, whereas Lagos was predominantly Christian, was regarded as more cosmopolitan, and was situated in the south of Nigeria. Counsel confirmed that the main language spoken in Nigeria was English (although there were also local dialects) and that the petitioner could speak English.

[18] Nevertheless, counsel submitted that the special adjudicator had failed to have regard to the totality of the situation, and had erred in her approach. The special adjudicator should have taken a unitary approach to the question of internal flight, and not divided the matter into individual factors. Reference was made to Karanakaran v. Secretary of State for the Home Department [2000] 3 All ER 449; Nazim Sattar, petitioner, 24 May, 2001 (Lord Mackay of Drumadoon); and Horvath v. Secretary of State for the Home Department [1999] I.N.L.R. 7. Counsel further criticised (a) the special adjudicator's apparent presumption that the petitioner's aunt could have looked after the petitioner; (b) the suggestion that allowing someone to sleep in a restaurant amounted to giving someone free accommodation (the petitioner's statement number 6/5/1 of process disclosed that the petitioner had slept in a chair in the restaurant); and (c) the special adjudicator's failure to take into account the fact that the Nigerian economy was in a bad state. The special adjudicator had failed to have regard to the totality of the petitioner's situation. Moreover the special adjudicator's failure to accept the pursuer's account of events when ostensibly dealing with the esto case (page 8 of the special adjudicator's determination) had affected the special adjudicator's approach to internal flight at page 9 of the determination. Counsel did not accept that the ruling on internal flight was self-standing and unaffected by any earlier flaws. Finally the special adjudicator had not given adequate reasons in connection with internal flight. It was submitted that, when a correct approach was adopted, it could be seen that it would be unduly harsh to return the petitioner to Nigeria. The Immigration Appeal Tribunal ought to have recognised that there were several arguable issues. The decisions of the special adjudicator and of the Immigration Appeal Tribunal should be reduced.

[19] In response, counsel for the respondent contended that the determination so far as relating to internal flight was free-standing, and was not flawed or vitiated by the special adjudicator's approach to the petitioner's credibility and the question of sufficient protection. The special adjudicator had identified the correct legal test - whether it would be "unduly harsh" to return the petitioner to Nigeria: R. v. Secretary of State for the Home Department, ex parte Robinson [1998] QB 929; Karanakaran v. Secretary of State for the Home Department [2000] 3 All ER 449. Then, for the purposes of assessing internal flight, the special adjudicator had assumed that the petitioner was wholly credible, that everything described by the petitioner was true, and that the petitioner had received insufficient protection from the state. The onus lay on the petitioner to establish a reasonable degree of likelihood that it would be unduly harsh to order relocation within Nigeria: cf. R. v. Secretary of State for the Home Department, ex parte Salim [2000] Imm.A.R. 6; R. v. Secretary of State for the Home Department, ex parte Sivakumaran [1988] 1 A.C. 958. The petitioner had failed to discharge that onus. The special adjudicator had complied with Karanakaran cit. sup., and with Kaja v. Secretary of State for the Home Department [1995] Imm.A.R.1. She had considered all the factors cumulatively, adopting a unitary approach, and using headings merely to provide clarity and order. There was no material before the special adjudicator to suggest that the trouble being experienced in the north of Nigeria would occur in the south. The adjudicator had been entitled to look at the CIPU country assessment and other reports when assessing the situation in the south: cf. Horvath v. Secretary of State for the Home Department [1999] I.N.L.R. 7 at paragraph 21. There was nothing in these reports to suggest that the petitioner was at risk in the south. The special adjudicator's conclusion on internal flight was not Wednesbury unreasonable. The conclusion had not been demonstrated to be one which no reasonable adjudicator properly applying the law, taking into account relevant material and excluding irrelevant material, could have reached: cf. Clyde & Edwards, Judicial Review, pages 571-573.

[20] Counsel for the respondent summarised his submissions as follows: (1) It was clear that the special adjudicator had correctly understood and applied the test of "unduly harsh" as set out in Karanakaran, cit. sup. (2) The special adjudicator had correctly adopted a cumulative approach when evaluating the evidence, and had referred to all the relevant facts and circumstances. (3) The special adjudicator had correctly approached the question of internal flight on an esto basis - in other words, she had approached the question on the assumption that everything had happened as the petitioner described, including the fact that Zamfara state had not offered sufficient protection. (4) The special adjudicator had given adequate and comprehensible reasons, fulfilling the test set out in Wordie Property Co. Ltd. v. Secretary of State for Scotland, 1984 S.L.T. 345; Daljit Singh v. Secretary of State for the Home Department, 2000 S.C. 219; and R. v. Secretary of State for the Home Department, ex parte Guhad [1997] Imm.A.R.1. It could not be said that someone reading the determination was left in any real or substantial doubt about the reasons. (5) It was proper for the special adjudicator to have regard to the CIPU country assessment and other reports: Horvath v. Secretary of State for the Home Department, cit. sup. (6) On the evidence placed before the special adjudicator (in particular the petitioner's own evidence about what had happened to her when she arrived in Lagos; the information contained in the CIPU country assessment; and the fact that there appeared to be no objective justification for the petitioner's fears about potential difficulties in the south of Nigeria), it was reasonable for the special adjudicator to conclude that it was not unduly harsh for the petitioner to seek refuge in southern Nigeria: cf. R. v. Secretary of State for the Home Department, ex parte Robinson [1998] QB 929, at p.937-940. While it was always possible that another adjudicator might have adopted a different view, it could not be said that the conclusion reached by the special adjudicator was one which she was not entitled to reach on the material before her: cf. dicta of Lord Reed in Kulwinder Singh v. Secretary of State for the Home Department, January 26, 2000.

[21] If the court were against the respondent, counsel submitted that only the Immigration Appeal Tribunal's refusal of leave to appeal should be reduced. The hearing before the Immigration Appeal Tribunal would not take the form of an appeal, but a full re-hearing on the merits. Accordingly only the decision of the Immigration Appeal Tribunal should be reduced: cf. dicta in Irzekevikius v. Secretary of State for the Home Department, July 14, 1999 (Lord Macfadyen).

Human rights: submissions

[22] Article 3 of the European Convention on Human Rights provides:

"No one shall be subjected to torture or to inhuman or degrading treatment or punishment."

Paragraph 7(iv) of the petition summarised the petitioner's contentions in relation to Article 3 as follows:

"The special adjudicator also dismissed the petitioner's appeal based on a breach of Article 3 of the convention. The petitioner has been the subject of degrading treatment in Nigeria in breach of Article 3 of the ECHR. The issue of internal flight is not relevant to a determination of whether there has been a breach of Article 3 of the ECHR. A requirement that she relocate internally within Nigeria is in the circumstances of the present case a breach of Article 3 of the ECHR. The special adjudicator determined that the factual basis of the petitioner's claim is not credible, and that even if she were wrong, internal relocation was and remains possible. As a result she determined that there was no real risk of the petitioner's rights under Article 3 being infringed. In so doing the special adjudicator erred in law. Reduction of the determination of the special adjudicator is sought accordingly."

[23] Counsel for the petitioner submitted that the special adjudicator had imported the concept of internal flight into the question of human rights, and had confused the two issues. The determination should be reduced, or at least that part of it concerning human rights.

[24] In reply, counsel for the respondent argued that in order to assess whether a breach of Article 3 of the European Convention on Human Rights was likely to occur, the special adjudicator had very properly addressed issues such as whether the petitioner was likely to experience ill-treatment in southern Nigeria (not in the state of Zamfara). The special adjudicator's conclusion in relation to Article 3 logically followed her conclusion about internal flight. The petitioner's criticisms were without foundation.

Opinion

[25] In my view, the special adjudicator's treatment of internal flight was not affected by any earlier error relating to her assessment of the petitioner's account and the sufficiency of protection. On a proper construction of page 9 of the determination, it is clear to me that, when considering the issue of internal flight, the adjudicator assumed that the petitioner's account of events was true. The question before me, therefore, is whether the special adjudicator erred in some way in her assessment of the issue of internal flight.

[26] Counsel were agreed that the appropriate test to be applied was a single composite question, namely whether it would be unduly harsh to return the petitioner to Nigeria: cf. Karanakaran v. Secretary of State for the Home Department [2000] 3 All ER 449; and R. v. Secretary of State for the Home Department, ex parte Robinson [1998] QB 929. In my view, the special adjudicator correctly identified the test to be applied, and then properly applied the test to the material before her. It was not essential that the special adjudicator dealt expressly and specifically with each of the five factors she was considering. It is clear that she dealt with all five cumulatively. In relation to the relative safety or otherwise of Lagos, the special adjudicator took into account both the objective reports about Nigeria, and the petitioner's concerns about the possibility that events similar to those which had occurred in Zamfara might occur in the south of Nigeria.

[27] The conclusion reached by the special adjudicator was in my view one which fell within the range of conclusions open to a reasonable adjudicator. While I accept that it is always possible that another adjudicator might have reached a different view, possibly by giving different weight to one or other of the factors taken into account by the special adjudicator, I do not consider that the conclusion actually reached in this case fell outwith the range of conclusions open to a reasonable adjudicator. The decision cannot therefore be deemed ultra vires or Wednesbury unreasonable.

[28] I am further of the opinion that the reasons given by the special adjudicator satisfy the requirements set out in the cases of Wordie Property Co. Ltd., Daljit Singh, and Guhad, cit. sup. In all the circumstances, I conclude that the petitioner's criticisms of the special adjudicator's determination so far as relating to internal flight are not well founded.

[29] In relation to the human rights argument, I agree with counsel for the respondent that the special adjudicator was correct to consider whether the petitioner was likely to experience ill-treatment in the south of Nigeria, as opposed to the north (including Zamfara state). I also consider that the special adjudicator was entitled to take into account the factors which she took into account, and her conclusion on this matter again falls within the range of conclusions open to a reasonable special adjudicator. In my view, the petitioner's criticisms of the special adjudicator's determination so far as relating to human rights are also not well founded.

[30] In all the circumstances, I shall repel the petitioner's first and second pleas-in-law, and refuse to reduce the decisions of the special adjudicator and the Chairman of the Immigration Appeal Tribunal. The question of interim liberation has already been dealt with.