A -v- MJELR High CourtJudgment was given by Mr Justice Hedigan on October 29th 2008
Judgment
In the case of a Nigerian girl trafficked into Ireland for the purpose of prostitution, it was open to a member of the Refugee Appeals Tribunal to decide, based on the material before him, that state protection would be available to her were she to return to Nigeria, and therefore to reject her application for refugee status.
Background
The case was first brought on behalf of the girl by a social worker, as the girl was under 18. She was in the care of the HSE following a Garda raid on a house in Sligo where she was found with two other girls and taken into care. She has since reached the age of 18 and was pursuing the case herself.
Following her displacement from her home village to Lagos, she met a woman who said she would help her find work outside Nigeria. This woman brought her to a shrine where a ritual was performed and she had to swear not to run away.
The boyfriend of this woman brought her to Ireland via Frankfurt, London and Belfast. She was told she would have to work as a prostitute to earn €60,000, and that she would be killed if she tried to escape. She met two other Nigerian girls in the house in Sligo, and three days later they were all rescued by the Garda raid. Two of them were placed in HSE care in Chester House, and the third elsewhere.
CCTV footage shows that some time later three unidentified Nigerian woman came to Chester House looking for the girls. The applicant remained in her room but the other girl disappeared, as did the third girl, who later turned up in a brothel in the UK.
An application was made in November 2006 for asylum on behalf of the applicant, who cited her fear of violence in her home village and her fear of the shrine in Lagos as grounds for her application. Evidence was given on her behalf by a member of the Garda Síochána and a social worker. The officer in the Office of Refugee Applications Commissioner made several negative findings in relation to her credibility, and refugee status was refused.
She appealed the decision to the Refugee Appeals Tribunal, stressing her fear of the woman who had trafficked and the shrine, as she had broken her oath and feared reprisals. Country of origin information was made available to the tribunal from a British-Danish fact-finding trip to Nigeria and from the US State Department.
The tribunal rejected the appeal, concluding that there was adequate protection available to the applicant from the International Organisation for Migration (IOM) should she return to Lagos. It referred to evidence from the Garda that numerous women trafficked to Italy had found protection under this organisation.
The applicant sought leave to bring a judicial review of the decision on the grounds of significant error of fact, and the treatment of country of origin information. She said that the statement about the protection available from IOM was an error of fact, as the Garda had made no reference to the trafficking of women to Italy in his evidence.
In relation to country of origin information, she referred to a judgment of Mr Justice Edwards in the Simo case (November 30th, 2007), stating that where there is conflicting country of origin information, it is incumbent on the tribunal to engage in a rational analysis of the conflict, and to justify its preference of one view over another.
She said there was no rational analysis in this case as to why the tribunal members preferred some country of origin information stating it would be safe for the girl to return over the preponderance of such information stating it would not.
Counsel for the tribunal argued that the documents generally all pointed the same general picture as to state protection: that state protection does exist, albeit in an imperfect manner.
Decision
As this was a leave application, Mr Justice Hedigan said the applicant must show grounds that are weighty, arguable and reasonable, rather than trivial or tenuous.
Mr Justice Hedigan accepted, based on the notes of the Refugee Legal Service case worker, that the tribunal member erred in attributing to the Garda knowledge of the trafficking of women to Italy. It appeared this came from the country of origin information from the Danish-British group.
"If one is to take a holistic approach to the decision - which the court is obliged to do - it seems clear to me that the information on which the tribunal member drew his conclusions was properly before him, and that it was open to him to draw the conclusions that he did from that information, irrespective of the error of attribution," Mr Justice Hedigan said.
Referring to the country of origin information, he said that he strongly concurred with Mr Justice Edwards in relation to such information where there was a "major conflict" between different pieces of country of origin information, as there was in the Simo case. Having read the country of origin information in this case, the information contained in it "supports the general conclusion drawn by the tribunal member that state protection - albeit imperfect - would be available to applicant if she were to return to Nigeria".
There did not appear to be a conflict of any significance as to the availability of protection; rather different opinions were available as to its quality and duration.Accordingly he was not satisfied that substantial grounds had been established and was refusing leave.
The full judgment is on www.courts.ie
Nuala Egan BL, instructed by the Refugee Legal Service, for the applicant; Dan Donnelly BL, instructed by the Chief State Solicitor, for the respondent.