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You are here: BAILII >> Databases >> High Court of Ireland Decisions >> A. (O. E. W.) v. Minister for Justice, Equality and Law Reform [2004] IEHC 106 (26 May 2004) URL: http://www.bailii.org/ie/cases/IEHC/2004/106.html Cite as: [2004] IEHC 106

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THE HIGH COURT

JUDICIAL REVIEW

Record No:2002 No. 702JR

Between:

O E W A

Applicant

And

The Minister for Justice, Equality and Law Reform

Respondent

Judgment of Mr Justice Michael Peart delivered the 26^th day of May 2004:

By order dated 19^th February 2003, Ms. Justice Finlay Geoghegan granted leave to the applicant to seek an Orders of Certiorari in respect of the Minister's proposal to deport the applicant, and the refusal of refugee status on one ground only, namely:

"That the Minister's decision to refuse a declaration of refugee status to the applicant is ultra vires in that it took into account the possibility of internal relocation of the applicant."

The nett question therefore is whether, as a matter of law, the Minister is entitled to take account of the possibility that the applicant could safely relocate to another part of her country of nationality, in order to have protection from the source of an otherwise well-founded fear of persecution for a Convention reason in a different part of that country, as a reason for refusing a declaration of refugee status.

Before dealing with that point, I will briefly outline the factual background in this case.

Before leaving Nigeria and arriving her on 26^th September 2000, she was a member of a Christian Union Church based in Lagos. However this group organises activities such as concerts in order to spread the word of God, and the applicant was part of this work It is a peaceful organisation involved in preaching and spreading the word of God in all parts of Nigeria. It appears that in September 2000 a group of about 25 members of the Union decided to travel to the northern part of Nigeria and went to Kaduna as part of their work.

Kaduna is an area which by this time was governed under Muslim Sharia law, and there have been many violent clashes between Muslim and Christian groups at this time in the northern area of the country. It appears that on the last day of their visit five women of the group were abducted by five men. They were mistreated and taken to a police station where they were beaten. Neither were they told why they were being detained. Eventually about two days later they were told that they were being charged with disturbing the peace of the state. The facts about their mistreatment at the hands of the police is set out in the report prepared under the provisions of s. 11 of the Refugee Act, 1996, as amended ("the 1996 Act"), and by not detailing it in this judgment, I am not to be taken as discounting in any way the severity of it, and there has been no adverse credibility finding against the applicant.

It appears that her mother was able to arrange for her release from the police station by payment of some money, so that she could receive medical attention at the hospital. The following day she returned to Lagos which is a journey of some 17 hours by road, and entered a private clinic. The following day she left, and her journey, via France, to this country was arranged.

It also appears that when she was back in Lagos some neighbours told her that people had been looking for her. She believes that the police in Kaduna may have contacted the police in Lagos concerning her 'escape' from the police in Kaduna. She does not feel that it is safe to return to Lagos because people have been asking her whereabouts.

The Report and Recommendation under s.13 of the 1996 Act states on page two thereof:

"The fear of state persecution that the applicant felt at the time of her detention was well-founded. Mrs. Adedayo's basic human rights had been taken away from her, the very institution which should have been protecting her and her rights were in fact persecuting her. The fact that the applicant was told little about what was happening as well as the treatment she received, all would have added to this fear."

It appears from this document also that the applicant, with other members of the Christian Union to which she belongs, had been involved in "spreading the word of God" in many other states but had never before experienced any kind of difficulty such as was experienced in Kaduna in the north of the country. It is only in that region that tensions between the proponents of Sharia law, and Christians broke out and that rioting occurred. It was the first time that the applicant had gone north.

That document then goes on to consider whether that fear which the applicant felt would still exist and reference is made to certain Country of Origin information. Reference is made to a British Home Office report dated April 2000 which states:

"Individuals who fear persecution by non-state entities, for example, those involved in tribal disputes, problems with cult membership, religious difficulties and so forth, the option of internal flight is a real possibility in Nigeria, taking into account its size and population."

Another piece of country of origin information (Kano, Nigeria – 5^th March 2000) is attached to the documentation in this application, and which states that:

"Christians and other non-Muslims living in Kano state in northern Nigeria who cannot cope with the Sharia legal system should leave the state, a Muslim group has said."

It also appears that under the 1999 Constitution of Nigeria, the use of Sharia law in relation to family or personal matters is not contrary to the provisions of the Nigerian Constitution, but that as far as criminal law or penal law is concerned, it is not permitted.

It is clear from the information provided, and not controverted by the applicant, that the difficulties emanating from the existence of Sharia law, and conflicts arising from conflicts with members of any Christian communities, are confined to the northern states of Nigeria, and principally in Kano state where the applicant was visiting at the time of her arrest.

Other relevant facts are that the applicant was born and brought up in Lagos, a 17 hour drive south of Kano state. She is well educated, and prior to her departure was employed. She also has family there. The fear of persecution which she has, and it has been found to be a well-founded fear, results from the experience she encountered when for the first time she went north to Kano with the Christian Union and assisted in the spreading of the Christian message in that region. Her incarceration resulted from her arrest for what was alleged to be a public order offence, namely breach of the peace.

In my view there was more than sufficient material and information available to the Tribunal member to conclude that while she was entitled to have a well-founded fear of persecution in relation to being in the northern state of Kano, and if she returned to that area, that persecution can be avoided by the applicant living in Lagos, from where she travelled, and where she was born and reared and where her family reside.

The real question is whether the option of internal relocation or internal flight is something which the Tribunal is entitled to take into account, and it is that question which is the ground upon which leave has been granted.

Since leave was granted in this case, a very helpful judgment has been delivered on the 21^st October 2003 by Mr Justice Gilligan in Pantsulaya v. The Minister for Justice, Equality and Law Reform. The learned judge has looked at this very question, and in doing so has examined the origins of the concept of internal relocation, since it does not appear in the 1951 Convention relating to the Status of Refugees nor indeed in the Refugee Act, 1996. Its origins have been traced back to paragraph 91 of the UNHCR Handbook on Procedures and Criteria for Determining Refugee Status which states as follows:

"The fear of being persecuted need not always extend to the whole territory of the refugee's country of nationality. Thus in ethnic clashes or in cases of grave disturbances involving civil war conditions, persecution of a specific ethnic or national group may occur in only one part of the country. In such conditions, a person will not be excluded from refugee status merely because he could have sought refuge in another part of the same country, if under all the circumstances it would not have been reasonable to expect him to do so."(my emphasis)

I have emphasised the final sentence, in view of the fact that in the present case I can see no basis for considering it to be unreasonable that the applicant should have gone back to Lagos where she was born and reared and where neither she nor her family have experienced any difficulty previously, and which is a 17 hour journey by road from Kaduna, and which has a population of some 10 million inhabitants.

Before proceeding further, I should say that I respectfully agree with and adopt what has been stated so clearly by Gilligan J. in Pantsulaya.

The concept of relocation is directly connected to the Convention definition of "refugee", and which in turn is reflected in our own legislation. That definition is contained in s.2 of the Refugee Act, 1996 which provides:

"In this Act 'a refugee' means a person who, owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his or her nationality and is unable or, owing to such fear, is unwilling to avail himself or herself of the protection of that country; or who, not having a nationality and being outside the country of his or her former habitual residence, is unable or, owing to such fear, is unwilling to return to it……" (my emphasis)

In the present case, it is reasonable to conclude that the applicant would not have a reasonable basis for a well-founded fear of persecution in Lagos. It is also reasonable to conclude that even if she were to be regarded as having a well-founded fear in Lagos, she would be able to avail of state protection there in the form of the police, who are not exercising Sharia law in that part of Nigeria, and also it is very relevant that neither she nor her family ever encountered any difficulty there in the past. Where a person has a well-founded fear, she will be regarded as a "refugee" if "owing to such fear" she is unwilling to avail of the protection of that country. That is an important matter to have regard to. The protection of that country can take the form simply of reporting harassment or threats to the police who can then be expected to investigate and bring the perpetrators to justice in the normal way. That is one form of protection which can be provided by the state. Another form of protection is where it is both possible and reasonable for the applicant to move from one area in which she has experienced trouble, into another region or city or town where those same difficulties will be likely to be absent. In each case it must be decided whether it is reasonable to expect that the applicant could so relocate. There could be many reasons why it would not be reasonable to expect an applicant to move from one region to another which was safe, and if found to be unreasonable, then she would be a refugee. Again, I emphasise the fact that in the present case, it is not even a matter of relocation, in the sense that she is already from the place where relocation is possible, namely Lagos. She would not be relocating in the sense of uprooting herself and moving to previously unknown territory where she might have no social or family contacts. She would simply be going back to her home. That is the sense in the present case in which the applicant has available to her the protection of her state from difficulties she might reasonably encounter if she were to go back to the northern state of Kano. But it has to be borne in mind that she only went there for the first time on this occasion, and then only for a matter of some days.

It is appropriate to have regard to paragraph 100 of the Handbook which states as follows:

"The term 'unwilling' refers to refugees who refuse to accept the protection of the government of the country of nationality. It is qualified by the phrase 'owing to such fear'. Where a person is willing to avail himself of the protection of his home country, such willingness would normally be incompatible with a claim that he is outside that country 'owing to a well-founded fear of persecution'. Whenever the protection of the country of nationality is available, and there is no ground based on a well-founded fear for refusing it, the person concerned is not in need of international protection and is not a refugee."

It is clear that any unwillingness on the part of the present applicant would have to be related to the well-founded fear of persecution which she had in Kaduna. It is not sufficient for her to be unwilling for some other non-Convention reason to relocate in another part of the country, save on the basis that for other reasons it could be deemed reasonable that she be not expected to uproot to that other area. It must be on the basis of the "such fear". Paragraph 98 of the Handbook states:

"Being unable to avail himself of such protection implies circumstances that are beyond the will of the person concerned. There may, for example, be a state of war, civil war or other grave disturbance, which prevents the country of nationality from extending protection or makes such protection ineffective. Protection by the country of nationality may also have been denied to the applicant. Such denial of protection may confirm or strengthen the applicant's fear of persecution, and may indeed be an element of persecution."

In the present case, it was open on the evidence and facts of the present case for the Tribunal member to conclude that relocation was an option for the applicant. In fact, as I have stated already, it is not relocation as such for the applicant, but merely a return to her home area from the area where she experienced the difficulty.

In Zgnat'ev v. The Minister for Justice, Equality and Law Reform (unreported, High Court, 29^th March 2001), Finnegan J. (as he then was) held it to be appropriate to have regard to the Handbook of the UNHCR when considering the terms of the Convention. I respectfully agree. But I should just add that in my view what is said in the Handbook about the option of relocation and the circumstances in which it can be applied flows directly from the Convention definition of a refugee for the reason identified as relating to an inability or unwillingness to avail of protection. It is not simply something plucked out of the air, so to speak, and added, by way of limitation to the definition, by the UNHCR.

The well-known and widely referred to work "The Law of Refugee Status" by Hathaway, Butterworths, 1991, at page 134, also deals with the question of internal relocation and is instructive. The learned author states:

"A person cannot be said to be at risk of persecution if she can access effective state protection in some part of her state of origin. Because refugee law is intended to meet the needs of only those who have no alternative to seeking international protection, primary recourse should always be to one's own state……

The drafting history of the Convention and its companion UNHCR Statute support this interpretation by their insistence on the exclusion of internally protected persons…"

As pointed out by Gilligan J. in Pantsulaya at page 25 of that unreported judgment, the standard of proof in such cases is "whether it would be 'unduly harsh' to require an asylum seeker who has fled a well-founded risk of persecution in one part of the state of origin to return to another part of the state of origin where the risk did not extend."

The learned judge then referred to the judgment of Lord Woolf in R v. Secretary of State for the Home Department, ex parte Robinson [1998] QB 929, where at pp 939-940 he discusses the various factors and circumstances which ought to be taken into account when considering the reasonableness of relocation internally.

In the present case there is no question of the Tribunal having used the availability of internal relocation as either a reason or another reason for finding that the applicant's fear of persecution was not well-founded. In the present case, her fear was found to be well-founded. If it had done so, its consideration of relocation in that context would be open to question.

In the present case I am satisfied that the Tribunal gave proper consideration to the issue of relocation when it considered that the applicant could return to Lagos. It took into account matters which it was entitled to have regard to and to which I have referred to already. I am also satisfied that it was not ultra vires for the Minister to refuse a declaration of refugee status, based on the Recommendation which took into account the possibility of internal relocation.

I therefore refuse the relief sought.