J -v- Refugee Appeals Tribunal Anor
High Court
Judgment was given by Ms Justice Clark on April 3rd, 2009.
Judgment
The decision of the Refugee Appeals Tribunal to uphold a refusal of refugee status to a Nigerian woman on the grounds that she could avail herself of the protection of Nigeria should stand.
Background
The applicant was a Nigerian national born in 1979 in Benin city, who moved to Delta State when she was 11. She trained as a hairdresser, and had a son in 1997, who remained in Nigeria when she came to Ireland.
Her father acted as a messenger for an organisation called the SSS and in November 2004 several men from that organisation came to the family home demanding to see him. She said he was not there, and the men abducted them and held them, questioning them about his whereabouts. She was repeatedly raped while detained.
One of the men was ashamed of what was happening and released her. When she got home she found no-one there, and was taken in by a family friend, who obtained a passport for her and arranged for her to stay with a friend of his in Lagos.
She travelled to Ireland by air accompanied by an agent, landing in Cork. She travelled to Dublin and applied for asylum.
Her application was refused by the Office of the Refugee Applications Commissioner (ORAC) and she appealed this decision to the Refugee Appeals Tribunal (RAT). Her appeal was rejected but, following a judicial review, her case was assigned to another tribunal member and heard again. At this hearing additional information was presented, including medico-legal reports from an examining physician and an art psychologist attached to the SPIRASI organisation for the victims of torture. They described her as a severely traumatised woman showing all the signs of post-traumatic stress disorder, including poor memory.
Her art psychologist expressed the strong view that she be given the opportunity to live in Ireland in order to continue her treatment, and her doctor said she had been assessed by the relevant psychiatric services and was under their care. The reports also stated that her concentration and memory remained poor.
At the second hearing she outlined the rapes, which she had not done previously, and also said that her father had been murdered in Nigeria. Three SPIRASI reports were submitted, along with a recommendation that she be allowed stay in Ireland for treatment.
The tribunal member focused on the question of internal relocation in Nigeria. She noted that the applicant did not wish to return to Delta State, but suggested that she could go to Lagos, where it was unlikely the men who abducted her would look for her. The tribunal member commented that ‘‘no good reason was proffered as to why Lagos wasn’t a viable option’’, and added that, were the woman to believe there was a risk, effective protection could be accessed.
Refusing the appeal she concluded that there was no basis for a finding that the woman was unable or unwilling to avail herself of the protection of her country of origin, and that it would not be unduly harsh for her to relocate.
This applicant sought leave to judicially review this decision, claiming that the tribunal member had failed to consider the SPIRASI reports. Her counsel said that these indicated that there were problems with the applicant’s ability to give evidence, due to her suffering from PTSD.
Counsel for the state said that no psychiatric report had been presented to the tribunal dealing with her capacity to give evidence. She also said that the option of internal relocation was found to be appropriate, and that her mental state had no bearing on this finding.
Decision
Ms Justice Clark said that the applicant must show grounds for quashing the decision that ‘‘reasonable, arguable and weighty.’’
She said the main argument made was whether the SPIRASI reports should have alerted the tribunal member to question the quality of the evidence already given to ORAC and her ability to give evidence to the appeal. She said that the member seemed to have approached the case on the basis that, accepting that everything she had said was true, the risk had now passed as her father was dead.
She said she had carefully considered the SPIRASI reports which indicated that the applicant was ‘‘a distressed and fragile young lady displaying symptoms of post traumatic stress disorder, and who may use dissociation as a way of evading memories of traumatic experiences suffered in the past.’’ However, she did not accept that she was unable to give reliable evidence.
She pointed out that the tribunal member referred to the recommendations in the reports, indicating that she had read them. If it was intended that the tribunal member should question her ability to give evidence, medical evidence should have been provided and the hearing adjourned.
‘‘The tribunal member’s decision was carefully considered and there was a clear basis in the evidence that was before her on which she could have reached the decision she did,’’ she said.
She pointed out that it was not her decision to leave Lagos, but she did so because the man she was staying with arranged it. It cannot be said that relocation was not an option in all the circumstances, nor could it be said that the SPIRASI reports were not considered, she said.
Substantial grounds for quashing the decision had not been shown, and accordingly leave was refused.
The full judgment is on www.courts.ie
Mark de Blacam SC and Maureen Cronin BL; Emily Farrell BL, instructed by the Chief State Solicitor, for the respondents