Ireland - High Court, 9 December 2009, A.S.O v Refugee Appeals Tribunal and Minister for Justice Equality and Law Reform [2009] IEHC 607

Facts:

The applicant came to Ireland from Nigeria in July of 2006 seeking asylum. She claimed that she was forced to flee Nigeria in order to evade attacks and threats from creditors of her late father, who were associated with the Oodua People’s Congress. (OPC), and were owed substantial sums of money when he died. The Refugee Applications Commissioner, on the basis of a lack of credibility, refused the refugee application at first instance. On appeal, the Appeals Tribunal Member took a different approach, appearing to accept in general the applicant’s credibility but making a finding that State protection was available to her and/or that she could relocate to avoid persecution. These findings were based upon country of origin information in a British/Danish fact – finding mission report and a UK Home Office OGN, which indicated that there was a complaints procedure in place if the police in Nigeria failed to investigate a complaint and that the police generally acted against the OPC.  The OGN relied upon was not made available to the applicant at the appeal hearing. 

Decision & reasoning:

The appeal decision was quashed and the matter returned to the Appeals Tribunal for re-hearing. The High Court (Cooke J.) found that:

A) The appraisal of country of origin regarding State protection was partial and inadequate. Whetheror not State protection is available does not depend upon the existence of a police complaints procedure but upon a determination that there exists in the country of origin as a matter of current practice, an effective system for the detection, investigation, prosecution and conviction of crimes of the kind which form the subject matter of the complaint.

B) It is questionable whether Regulation 7 of the (Irish) European Communities (Eligibility for Protection) Regulations 2006, places the onus of proof as to the unavailability of relocation as a solution upon an applicant. The regulations are structured on the basis that a protection decision maker may enquire into and to determine whether a person who is otherwise eligible for subsidiary protection or a refugee, is nevertheless not in actual need of protection because of the possibility of relocation in the country of origin. To make such a determination the decision maker must be satisfied that there is no risk of the particular persecution feared or of the serious harm in question occurring in the locality to which relocation is postulated.

C)The finding that relocation was a genuine possibility was necessarily dependent upon the proposition that the particular threats by non-state actors were amenable to State protection. It was the applicant’s complaint that the police were unwilling to help because they, in effect, regarded the matter as one of financial debt or contract and that the creditors in question appeared to be legitimately owed their money. This would probably be the position elsewhere in Nigeria.

D) The applicant had not been afforded fair procedures. The OGN was a document, which was not put to the applicant at the appeal hearing or one upon which the applicant was afforded an opportunity to comment or in respect of which rebutting information might have been adduced. There was, in this regard, an infringement of the requirement in s. 16(8) of the Refugee Act, 1996 Act which requires that the Tribunal shall “furnish the applicant with … an indication in writing of the nature and source of any other information relating to the appeal which has come to the notice of the Tribunal in the course of an appeal. 

Outcome:

Decision quashed.