High Court: Woman who was refused refugee status loses application for judicial review

About this case:

• Citation:
  [2019] IEHC 443
• Judgment:
  External link
• Court:
  High Court
• Judge:
  Mr Justice David Keane

Background

In September 2014, the applicant, IL, presented herself to the immigration authorities in Dublin. She claimed to have a well-founded fear of persecution if returned to Nigeria, on the ground of her religion. She claimed she would be killed by a religious cult, against which there is not adequate state protection available.

In March 2015, the Office of the Refugee Applications Commissioner recommended that IL should not be declared a refugee because she had not established:

• - A well-founded fear of persecution
• - That adequate state protection would not be available to her
• - That internal relocation within Nigeria would not be a reasonable option available to her

IL appealed the decision, and in November 2016, the International Protection Appeals Tribunal concluded that IL had established a well-founded fear of persecution by non-state actors but had failed to establish the absence of adequate state protection in Nigeria. The IPAT also concluded that such persecution would not be repeated, and there were no compelling reasons arising out of IL’s previous persecution that would warrant a finding in favour of her recognition as a refugee.

Thereafter, IL brought the present judicial review proceedings.

Judicial review

In the High Court, IL contended that the tribunal erred:

• - In fact and in law in concluding that adequate state protection was available to her in Nigeria;
• - In its consideration or application of the compelling reasons test;
• - In fact and in law by rejecting the authenticity of certain purported police reports that the applicant had furnished in support of her claim.

Adequate state protection

Mr Justice Keane said that the primary country of origin information relied on by IL and considered by the tribunal was a guidance document published by the UK in 2016. Mr Justice Keane said that the tribunal did consider the portions of the guidance relied on by IL to establish shortcomings and deficiencies of the police in Nigeria, but that the tribunal also had regard to the efforts in place to address those problems and IL’s own experience of practical assistance from the police in the past. As such, the tribunal concluded that adequate state protection was available to her overall – which was the same conclusion the guidance document reached on the availability of state protection in Nigeria generally.

Considering, inter alia,  DVTS v Minister for Justice [2008] 3 IR 476, Mr Justice Keane rejected the first ground of challenge.

Mr Justice Keane also said that IL’s “unwillingness” to avail herself of protection must be based upon a “well-founded fear”, and considering Canada (Attorney General) v Ward [1993] 2 SCR 689, if a state is able to protect the applicant, then the fear “is not, objectively speaking, well-founded”. With the finding of adequate state protection available to IL in Nigeria, this unwillingness was insufficient to make out her claim.

Compelling reasons

Rejecting the second ground of challenge, Mr Justice Keane said that there was no mathematical equation whereby reasons can be demonstrated as compelling or not compelling, nor was there a mechanical process for determining whether or not a form of persecution is atrocious. He said the circumstances of each case fall to be considered by the decision-maker to determine whether the threshold has been met – and to overturn the finding of the tribunal it would be necessary to be satisfied that it “plainly and unambiguously flew in the face of fundamental reason and common sense”.

Authenticity of police reports

The third ground of challenge concerned the tribunal’s finding that two police reports submitted by IL were not authentic. The police reports had been provided to IL by her ex-husband, whom she said she trusted about 70%, but who she believed had become a cultist, had stolen her business, and defrauded her.

The tribunal had found that it was not possible to rely on IL’s ex-husband for information, including the police reports. IL argued that the tribunal should have carried out inquiries into the authenticity of the police reports or made a request to ORAC to do so under s.16(6) of the Refugee Act.

Mr Justice Keane said he could find no error in the tribunal’s approach, and concluded that this was not in the category of special cases with particular facts to make it remiss of the State not to have conducted an inquiry of its own volition into the authenticity of the police reports.

Rejecting all grounds of challenge, Mr Justice Keane refused the application for judicial review.

• by Seosamh Gráinséir for Irish Legal News