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Cite as: [2008] IEHC 270

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Judgment Title: O. -v- MJELR & Anor

Neutral Citation: [2008] IEHC 270


High Court Record Number: 2006 1012 JR

Date of Delivery: 30 July 2008

Court: High Court


Composition of Court:

Judgment by: Edwards J.

Status of Judgment: Approved



Neutral Citation Number: [2008] IEHC 270
THE HIGH COURT
JUDICIAL REVIEW
2006 No. 1012 J.R.
BETWEEN
S. M. I. O. (AN INFANT SUING BY HER MOTHER AND
NEXT FRIEND M. L. O.)
APPLICANT
AND
THE MINISTER FOR JUSTICE, EQUALITY AND LAW REFORM AND THE REFUGEE APPLICATIONS COMMISSIONER
RESPONDENTS
JUDGMENT delivered by Mr. Justice Edwards on the 30th day of July 2008
Introduction
This is an application for leave to apply by way of judicial review for diverse reliefs including an order of certiorari quashing the report and recommendation given by the second named respondent pursuant to s. 13(1) of the Refugee Act 1996 (as amended) in respect of the applicant’s claim for asylum. Among the other reliefs claimed is an injunction restraining the first named respondent from taking any further steps in relation to the applicant’s application for refugee status pending the outcome of these proceedings.

The draft statement of grounds accompanying the application sets out numerous complaints in respect of the manner in which her case was dealt with by the second named respondent. However, these were distilled into complaints under three discreet headings for the purposes of the applicant’s written submissions and legal argument before the court. They are as follows:-

(a) An alleged want of fair procedures on the part of the Refugee Applications Commissioner (hereinafter the RAC) in dealing with the case;

(b) An alleged absence of proper analysis by the RAC and

(c) An alleged failure to have regard to the UNHCR Handbook.
Background Facts
The applicant was born in Ireland on the 3rd April, 2006, and is the daughter of a Nigerian father and a Ugandan mother. She is not a citizen of Ireland. In the application for refugee status questionnaire completed on her behalf by her mother, with the assistance of an interpreter and an Irish solicitor, she is stated to be a citizen of Uganda with an entitlement to claim nationality/citizenship of, or right of residence in, Nigeria, presumably through her father. The case is highly unusual in as much as the applicant claims refugee status on the basis of a well founded fear of being persecuted in both Uganda and Nigeria respectively. She claims the fear of persecution in Uganda on the basis that her life would be in danger there because her mother renounced the Muslim faith to marry her father, a Christian, and went against the wishes of her mother’s family. She claims the fear of persecution in Nigeria, her father’s home State, on the grounds that she would be subjected to female genital mutilation in Nigeria by members of her father’s family. Obviously as the applicant is only 2½ years of age she has not articulated these fears herself. They have been articulated on her behalf by her mother and they are elaborated upon in her answers to relevant questions in the application for refugee status questionnaire. In response to the question, “what do you fear may happen to you or any of the people included in this application if you return to your country of origin?” she stated:-
          “My fear is that, if S. is returned to Uganda, her life would be in danger and not protected. This is because she has nowhere to go or belong and no one to take care of her as my family have made it very clear that they did not accept my marriage and not to live to see me neither my children because I renounced my Muslim belief which put a very big shame to the family because of their fanatic beliefs. It’s all because I went on to marry a Christian who they regard as a non-believer and so is my children. And so S. will suffer because her mixed race and religion, and there is no relation that can take her in the family. The way they chased us by threatening to kill me and my husband there is no way they can take S. or my other children home or me because am regarded and seen as a shame and disgrace to them and the entire family and their Moslem community. Also in Nigeria I know her life is in danger of dying because of the rituals of circumcision. As this is performed to female in my husband’s culture and is the reason why I left because I could not accept or agree for me to be circumcised. I see my daughter’s life at a very big risk of death if at all she is to go through that ritual of circumcision. This is very dangerous because it can cause her to bleed to death and as well, this in itself can as well danger her healthy because of urinary infections and am very scared if me and my children are to go through this. Please this is why I kindly ask for your protection here in Ireland.”
In response to the question, “why did you leave your country of origin?” she stated:-
          “I left Uganda due to the life threats I and my husband received from my family as they found out that I was engaged with a Christian man. They hated him because he was not a Muslim and also being a foreigner (Nigerian). They threatened to kill him and myself if we continued the relationship, this is all because they are a fanatic Moslem family and as I was already pregnant then, so I decided together with my husband to move to join him in Nigeria. In Nigeria is where I married and had my first daughter, but I had to leave in fear of my life and my whole family being killed due to the fact that we didn’t agree to the demands of my husband’s family. We came into Ireland where we have settled in and had our other two children of which S. is one of them.”
The Section 13 Report and Recommendation
In his section 13 report, dated the 26th July, 2006, the second named respondent concluded that the applicant had failed to establish a well founded fear of persecution as defined under s. 2 of the Refugee Act 1996, (as amended). At para. 4.1 of the report it is stated:-
          “The applicant’s mother M. L. O. stated that she was a Ugandan who converted to Christianity and married a Nigerian, Mr. C. O. She stated that her own family was against the marriage and that her husband’s family wanted to circumcise her in accordance with their traditions. It was for these reasons that this applicant’s parents came to Ireland to claim asylum. The applicant’s father has been refused and this was upheld on appeal. The mother’s case was initially refused and now is at the appeal stage. The applicant’s mother stated that she was afraid that if her daughter was returned to Nigeria she would be circumcised by her father’s family. The applicant’s mother was asked if she was aware that there were organisations in Nigeria who assist women who do not wish to be circumcised. She denied any knowledge of such organisations. The applicant’s mother was also asked if she was aware of legislation in Nigeria outlawing female circumcision. Once again the applicant’s mother denied knowledge of such legislation. However, the applicant’s mother managed to live in the same area as her husband’s family without being circumcised and this combined with the husband’s unwillingness to co-operate further reduces the likelihood that the applicant herself would face circumcision if she was returned to Nigeria.”
At para. 4.2 of the report it is stated:-
          “The applicant’s mother stated that her husband’s family attacked them on a number of occasions and that these attacks were reported to the police. But she claims that the police told them to sort things out among the family. The police, however, did take cognisance of the complaint, but were merely following the traditional route for settling familial disputes by suggesting that these things could be sorted out within the family circle.”
At para. 4.3 of the report it is stated:-
          “The applicant’s mother stated that her family in Uganda were against her conversion to Christianity and her marriage to a Nigerian. She claims that her daughter would be in danger because of this. The Ugandan constitution provides for freedom of religion and movement. The applicant and her mother and father would therefore have the option to returning to Uganda as an alternative to going to Nigeria.”
Two documents were annexed to the section 13 report.
The Appendices to the Section 13 Report.
Before proceeding to consider the parties respective contentions on the substantive issues I want to make some detailed comments about the presentation of the two appendices to the section 13 report. The first consists of a three page extract from a document, apparently entitled “Report on Human Rights Issues in Nigeria” as it bears a header to that effect. The provenance of this document is not identified. No indication is given as to the authorship or source of the material in question. I have commented in other cases that this type of presentation is simply not satisfactory from the point of view of a reviewing court. If the Refugee Applications Commissioner intends to rely upon country of origin information in support of a conclusion or conclusions it is incumbent upon him to properly identify the material in question. It is impossible to know from the extract attached to the s. 13 report if it comes from a reliable source. It is also impossible to know within what context the section relied upon appears within the structure of the document as a whole. The deficiencies that I have noted in this case do not represent an isolated incidence of the problem. On the contrary I have experienced the difficulty complained of in several instances recently and it is to be hoped that, having been appraised of it, the Refugee Applications Commissioner will in future endeavour to ensure that the source and provenance of country of origin information is identified with particularity and further ensure that the context of any quotation or extract relied upon is readily ascertainable.

The second document annexed to the section 13 report consists of a single page which again is untitled and unattributed. The text thereon, which takes up approximately one third of the page, bears a heading “Protection of Freedom of Conscience, Expression, Movement, Religion, Assembly and Association”. Under this heading there is then reproduced what appears to a single section or article taken from some legal instrument. It is presumed by referral back to the contents of the s. 13 report that this must be an extract from the Ugandan Constitution. However, it is not labelled as such. Once again I would comment that it is wholly unsatisfactory that the High Court, or indeed any interested party, should have to resort to inference or speculation to ascertain the nature and potential relevance of an appendix to the s.13 report. With respect to the substance of the material, the provision relied upon, namely section 29 or article 29, deals inter alia with constitutional protection of freedom of religion and freedom of movement. However, the provision is reproduced in isolation and one is not given the opportunity to examine it in it’s context. Context is very important when considering the provisions of a constitutional instrument because it may assist in determining the extent of rights guaranteed, and whether they are capable of being invoked by the individual citizen. For example, an article purporting to guarantee freedom of religion might be open to a number of possible interpretations. Taken in its context, it might well be the case that what is guaranteed is simply that no law may be enacted by the legislature of the state in question which would have the effect of prohibiting or curtailing the practice by an individual of their religion. On the other hand it might equally be apparent from the context that the State in question is obliged by its laws to actively defend and vindicate the right in question on behalf of the individual citizen, or that the individual can personally invoke that right as against the State or as against another body or individual in litigation. The single article quoted on the page in question provides minimal information concerning the parameters and status of the rights identified by the Commissioner as enuring to the benefit to the applicant and is open to criticism on that account.
Preliminary Issue
The respondent makes what amounts to a preliminary objection to the applicant’s claim, namely, that if the applicant is dissatisfied with the decision of the Refugee Applications Commissioner she ought to pursue her legal entitlement to appeal to the Refugee Appeals Tribunal rather than invoking the jurisdiction of the High Court by way of judicial review.

As this issue has been raised by the respondents the Court presumes (a) that an appeal has already been filed “without prejudice” to the outcome of this judicial review; and (b) that in the event of the Court upholding this preliminary objection the respondents will not be attempting to stymie proceedings before the RAT by raising a time limit or delay point against the applicant, who is, after all, a three year old child.

The court was referred to a number of decisions by the respondent and this has been most helpful. The decisions in question are Stefan v. The Minster for Justice [2001] 4 I.R. 2003; Voke Akpomudjere v. The Minister for Justice, Equality and Law Reform (Unreported, High Court, Feeney J., 1st February, 2007), and Akintepede v. The Refugee Appeals Tribunal (Unreported, High Court, Birmingham J., April 2008). In particular the courts attention was drawn to the following passage from the Akintepede judgment wherein Birmingham J. stated:-

          “The question then arises as to the relevance of the availability of an alternative remedy or remedy by way of an oral appeal and of course the existence of a statutory right of appeal brings with it the question of whether certiorari is an appropriate remedy at all. The implications of the relevance of the availability of parallel remedies in the form of judicial review and appeal have been considered by the Superior Courts in a number of contexts, including the planning and compulsory acquisition code, District Court Appeals in criminal cases and in the asylum area. But, insofar as certiorari is always a discretionary remedy, the existence of a right of appeal is always a relevant consideration as to how the discretion should be exercised. The jurisprudence in this area has been the subject of a very helpful review by Feeney J. in the case of Akomoj v. Minister for Justice a decision of 1st February, 2007.

          While the existence of an appeal mechanism is clearly a very relevant consideration, one must always bear in mind that the Supreme Court has made clear, as it did in the case of Stefan v. Minister for Justice [2001] 4 I.R. 2003, that the process is a distinct two stage process and it follows that the applicant is entitled to fairness of procedures at both stages, at first instance and if it goes that far, on appeal. An applicant cannot be short changed, as it were, by missing out on a fair consideration of his claim at first instance.”
The respondent submits that if this Court is of the view that there was any defect of default in the decision of the second named respondent in this case then such defect or default could and should be appropriately addressed via the statutory prescribed appeals mechanism and that none of the grounds raised by the applicant in the case call for the intervention of the court by way of judicial review.

In reply, the applicant’s counsel suggested that the deficiencies identified in the applicant’s submissions were so fundamental that the applicant effectively missed out on a fair consideration of her claim at first instance, and that in the circumstances judicial review proceedings are appropriate.
The Substantive Issues
Alleged Want of Fair Procedures
The Applicant’s Submissions
Counsel for the applicant submitted that doubts that were clearly in the mind of the decision maker were not put to the applicant’s mother in order to afford her an opportunity to dispel those doubts. The applicant relies on the case of Idiakheua v. Minister for Justice, Equality and Law Reform (Unreported, High Court, Clarke J., 10th May, 2005), stated:-
          “It seems to me that an inquisitorial body is under an obligation to bring to the attention of any person whose rights may be affected by a decision of such a body any matter of substance or importance which that inquisitorial body may regard as having the potential to affect its judgment. In that regard an inquisitorial body may, in many cases, be in a different position to a body which is simply required to adjudicate upon the contending positions of two competing parties in an adversarial process. In the latter case the adjudicator simply decides the issues on the basis of the case made whether by evidence or argument by the competing parties. However the principles which have been developed by the courts since the decision of the Supreme Court in Re Haughey [1971] I.R. 217 are equally applicable, in principle, to inquisitorial bodies. The precise way in which those principles may be applied may, of course, differ. However the substantial obligation to afford a party whose rights may be affected an opportunity to know the case against them remains. In those circumstances it seems to me that whatever process or procedures may be engaged in by an inquisitorial body, they must be such as afford any person who may be affected by the decision of such body a reasonable opportunity to know the matters which may be likely to affect the judgment of that body against their interest. In the course of argument in this case it was suggested on behalf of the RAT that it would be inappropriate for the Tribunal either to direct the line of questioning which should be adopted on behalf of the Commissioner or to engage in questioning itself (on the grounds that such questioning might give rise to an appearance of bias). I am afraid I cannot agree.

          If a matter is likely to be important to the determination of the RAT then that matter must be fairly put to the applicant so that the applicant will have an opportunity to answer it. If that means the matter being put by the Tribunal itself then an obligation so to do rests upon the Tribunal. Even if, subsequent to a hearing, while the Tribunal member is considering his or her determination an issue which was not raised, or raised to any significant extent, or sufficient at the hearing appears to the Tribunal member to be of significant importance to the determination of the Tribunal then there remains an obligation on the part of the Tribunal to bring that matter to the attention of the applicant so as to afford the applicant an opportunity to deal with it. This remains the case whether the issue is one concerning facts given in evidence by the applicant, questions concerning country of origin information which might be addressed either by the applicant or by the applicant’s advisors or, indeed, legal issues which might be likely only to be addressed by the applicant’s advisors.”
It is suggested that the applicant’s mother ought to have been afforded an opportunity to comment on the second named respondent’s view that because the applicant’s father was against the practice of female genital mutilation, as well as the applicant’s mother, this reduced the likelihood that the applicant herself would face circumcision if she was to be returned to Nigeria. It is suggested that the applicant’s mother should have been given an opportunity to comment on this view as it appears to have been a crucial factor insofar as the second named respondent was concerned. It is also suggested that the second named respondent appears to have relied on the content of the applicant’s mother’s Refugee Applications Commissioner decision and that the applicant’s mother was not afforded an opportunity to comment on those matters. It was emphasised that the applicant was entitled to a separate consideration of her application and it is suggested that she was not provided with the same.
The Respondents’ Submissions
The respondent submits that there was no obligation on the part of the Commissioner to put any doubts of the kind mentioned in the applicant’s submissions to the applicant’s mother in the course of interviewing her in relation to this case. He submits that a reading of the notes of interview show that the applicant’s mother was given every opportunity to put the case on behalf of the applicant and was asked relevant questions in relation to her return to Nigeria and in relation to return to Uganda. It is pointed out that the applicant’s mother was specifically referred to the fact that her husband was against the practice of FGM in the course of the interview in relation to the present applicant’s case. It was submitted that it would be incredible if reference was not made to this fact by the Commissioner in the course of his report in the case, particularly in the light of evidence from the applicant’s mother in both her own claim and in this claim that she and her husband had lived in Lagos and away from her husband’s family for a period of three years in order inter alia to avoid an alleged threat of circumcision to her.

With reference to the Commissioner’s reliance upon or reference to the contents of the applicant’s mother’s RAC decision it was submitted that it would be extraordinary if the Commissioner did not refer or have some regard to this decision in the facts of this case. The applicant was after all a three month old child at the time when her mother applied for asylum on her behalf. Furthermore, the applicant’s claim was in reality inextricably linked with her mother’s claim – also based on a fear of forced FGM from her husband’s (the present applicant’s father’s) family in Nigeria and persecution by the mother’s family in Uganda because of their disapproval of the mixed marriage of the applicant’s father and mother. It was submitted that there are no separate or particular facts above and beyond the facts advanced in the mother’s claim which were advanced in the child’s claim. The respondent submits that the applicant was in fact afforded a separate and independent consideration of her claim.
Alleged absence of proper analysis by the RAC
The Applicant’s Submissions
The applicant has submitted that the recommendation of the second named respondent discloses an absence of any analysis supporting the conclusion that the applicant’s claim lacks credibility. The court has been referred to the statement of Clarke J. in Zhuchkova v. Minister for Justice, Equality and Law Reform [2004] IEHC 166, wherein, following Peart J. in Da Silveria v. The Refugee Appeals Tribunal (Unreported, High Court, 9th July 2004), he stated:-
          “There is a wider principle, being the one identified by Peart J when he says that the finding cannot be based simply upon a gut feeling or a view based on experience or instinct that the truth is not being told. A finding of lack of credibility, it is at least arguable, must therefore be based on a rational analysis which explains why, in the view of the deciding officer, the truth has not been told.”
It is argued in the appellant’s legal submissions that while credibility is not explicitly addressed by the second named respondent, it is implicit in the s. 13 report that credibility, in the contextual sense, was considered to be wanting. It is submitted that this finding on credibility appears to have been based upon the “gut feeling” only of the decision maker rather than on the basis of an analysis of the evidence before him. It is further submitted that the absence of any or any sufficient analysis of the applicant’s case constitutes a failure to give reasons for the conclusion that the applicant’s account lacks credibility. There is a further complaint that the recommendation does not contain reasons sufficient to identify the basis for its adoption.

The applicant submits that the decision maker failed to properly employ a forward looking test in the instant case and there was no proper objective assessment as to what the future might hold for this particular applicant. It is submitted that in applying a forward looking test in any particular case the decision maker must consider whether the applicant is reasonably likely to face persecution upon return to her county of origin and also the availability of state protection. It is submitted that the applicant’s mother’s evidence that protection had been sought in the past and denied was ignored and that a proper assessment of the applicant’s claim should have included an assessment of the availability of effective state protection. It is further submitted that the consideration of the availability of protection from NGOs was an irrelevant consideration in the context of the refugee definition. It is submitted that the establishment of the existence of laws in either Uganda or Nigeria that might protect the applicant was insufficient in itself, there also needed to be a consideration of the effectiveness of those laws and this aspect of the matter was not examined or considered.
The Respondent’s Submissions
The respondent submits that the basis upon which the applicant’s claim was rejected by the Commissioner is clear and cogent from a reading of the section 13(1)report and that it was based upon a rational analysis of the evidence before him and not on a gut feeling. The respondent points out that in reaching his conclusion the decision maker was cognisant of the rejection of the applicant’s mother’s claim of a fear of persecution for similar reasons and furthermore of the facts that -

(1) there are NGOs in Nigeria who assist women who do not wish to undergo circumcision;

(2) there is legislation in Nigeria outlawing female circumcision and

(3) the fact that the family has previously lived in Nigeria without the mother being subjected to FGM and the fact that the child’s father was against FGM.

It was further submitted that the decision in relation to the alleged fears of persecution if the applicant were to be returned to Uganda are clearly set out at para. 4.3 of the report where reference was made to freedom to practice religion under the Ugandan constitution (a matter specifically referred to in the interview in this infant applicant’s case) and the fact that Uganda was a large and densely populated country and therefore internal relocation was an option. The respondent submits that there was a full and detailed analysis of this applicant’s particular claim.
Alleged Failure to have regard to the terms of the UNHCR Handbook
The Applicant’s Submissions
The complaint under this heading is that there was a failure on the part of the second named respondent to carry out any proper objective assessment of the applicant’s claim in the context of what is known about the country of origin. In fact, in this particular case, we are talking about countries of origin plural, namely Nigeria and Uganda. It is clear from the applicant’s written submissions, and indeed the arguments put before me in court, that reliance is placed on those portions of the UNHCR Handbook which have been expressly approved of and adopted as representing the appropriate procedure by the Superior Courts in this country. In particular McGuinness J., speaking for the Supreme Court-- in V.Z. v. The Minister for Justice [2002] 2 IR 135 adopted with approval paras. 37 – 42 of the UNHCR Handbook. Further, para 196 of the UNHCR Handbook in a section entitled “Establishing Facts” asserts that:-
          “While the burden of proof in principle rests on the applicant, the duty to ascertain and evaluate all the relevant facts is shared between the applicant and the examiner.”
This was adopted and approved as a correct statement or principle by McGuinness J. in V.Z. v. The Minister for Justice. The applicant contends in the written submissions filed on her behalf that there was a failure on the part of the second named respondent to consult relevant country of origin information and to consider same. In argument before me it was suggested that there had been selective reliance upon such country of origin information as was consulted and, indeed, the court of its own motion raised certain issues and expressed certain concerns about the way in which the country of origin information was used in this case.
The Respondent’s Submissions
The respondent submits that the applicant’s complaint under this heading is not made out. The respondent points out that there are several references in the papers before the court (which were all before the commissioner when making his decision) which refer to objective country of origin evidence. In addition, the applicant’s mother, both in the course of the interview in relation to her own application and the interview in relation to her infant daughters application, was referred to and invited to comment upon country of origin information in relation to both Uganda and Nigeria.
DECISION
Preliminary issue
I am sympathetic to the arguments made by the respondents to the effect that the applicant ought to have proceeded with her appeal against the report and recommendation of the second named respondent to the Refugee Appeals Tribunal rather than invoking the jurisdiction of the High Court by way of judicial review for the purpose of having it quashed by order of certiorari. If I felt that the applicant had established substantial grounds for believing that the RACs report and recommendation ought to be quashed by reason of a want of fair procedures, alternatively for error of law vitiating jurisdiction, alternatively on the basis of reliance upon a serious error of fact, I would have been disposed to grant leave to apply for judicial review. However, certiorari is always a discretionary remedy. This is a borderline case and I have decided in the exercise of my discretion not to grant leave to apply in the circumstances of this case because of the availability of the alternative remedy of an appeal to the Refugee Appeals Tribunal. I have concerns about aspects of the Refugee Applications Commissioner’s report and recommendation, but I think that these particular concerns could best be addressed within the context of the appeals process and on the basis that the appeal in this case will involve a complete rehearing and reassessment of the evidence.
The Substantive Issues
Though it has not necessary for me to determine these issues for the purposes of the decision that I have made, it is nevertheless appropriate that I should briefly express some views on the issues raised in amplification of my reasons for exercising my discretion in the way that I have done.
Alleged Want of Fair Procedures
I was not greatly impressed with the arguments put forward by the applicant with respect to want of fair procedures and in particular the suggestion that certain matters should have been specifically put to the applicant’s mother. I do not consider that there is anything in this point and I am inclined to accept the submissions of the respondents with respect to it.
Alleged absence of proper analysis by the RAC
I was somewhat more concerned about what I would consider to be possibly valid criticisms of the analysis of the evidence by the Refugee Applications Commissioner in the light of what was known about the country of origin. I was also somewhat concerned about seeming deficiencies or shortcomings in the country of origin information that, prima facie, could have been readily addressed.

I have already commented on the unsatisfactory manner of presentation of the country of origin information to which resort was had in this case and I do not propose to say any more about that. However, among the concerns that were raised by the court was the second named respondent’s apparent reliance on “Legislation in Nigeria outlawing female circumcision”. Nigeria is a Federal State. It is clear from the country of origin information relied upon that there is no federal law outlawing female genital mutilation (FGM). The position with respect to state law is less clear. It seems that while such legislation exists in some states within Nigeria it does not exist in all states. While the section 11 questionnaire established that the applicant’s mother had resided in Lagos, there does not appear to have been any attempt to establish within what state Lagos is situate, and whether that particular state has legislation outlawing FGM. Moreover, the information that was relied upon contains the express statement that FGM “is a predominant phenomenon in the middle belt and in the south west”. Now Lagos is situated in the south west of Nigeria.

While it is recognised that it might be suggested that it is open to the applicant and her parents to go to live in a state within Nigeria in which there is legislation outlawing FGM there might or might not be real difficulty in that regard. It is futile to speculate on this, but the point ought to be made that it does not appear to have been specifically suggested to the applicant’s mother that the possibility of re-locating from Lagos to another part of Nigeria was an option open to her nor is that specifically suggested in the section 13 report. Rather, she was simply asked “if she was aware of legislation in Nigeria outlawing female circumcision” and great reliance was placed on her apparent disavowal of knowledge of the existence of such legislation. The questions must be posed as to whether any valid inferences could be drawn from that answer in the light of the particular question that was asked and the little we know about legislation in Nigeria; and whether the view that was taken by the RAC, based upon the answer given, was justified and constituted an appropriate inference in all the circumstances. I have the gravest of doubts in that regard, but this is clearly a matter that can be addressed in the context of a re-hearing of the matter on appeal.

I had another concern arising out of the fact that the information relied upon suggested that young or new born girls are at a much higher risk of being subjected to FGM than adolescent or adult women. This particular fact significantly differentiates this applicant’s case from her mother’s case in terms of possible risk faced. I was particularly concerned about the absence in the Commissioner’s Report and Recommendation of any allusion whatsoever to the increased risk faced by an infant of possibly being subjected to FGM compared to the risk faced by an adolescent or adult woman. The report does not provide any basis for believing that there was an engagement with that very important circumstance which is clearly stated in the Country of Origin report exhibited in the first Appendix to the section 13 report.

I have already expressed criticisms about the inadequacy of the country of origin information relied upon with respect to Uganda. The only country of origin information relied upon apparently was a single article from the Ugandan Constitution, considered in isolation and in an un-contextualised way. I regard this as wholly inadequate. For example, in the article relied upon, the right to freedom of religion is expressed in terms that:

“29(1) Every person shall have the right to -
      (c) freedom to practise any religion and manifest such practice which shall include the right to belong to and participate in the practices of any religious body or organisation in a manner consistent with this Constitution”
An obvious question arises as to what is meant by the words “in a manner consistent with this Constitution”? How can that be determined without reading the Constitution as a whole?

Moreover, to the extent that the decision maker seems to have been of the view, based upon the right to freedom of movement also guaranteed in article 29 of the Ugandan Constitution, and covered by the extract relied upon, that the applicant’s family could live in another part of Uganda away from the mother’s family, this seems to ignore the fact that, unlike freedom of religion which is said to extend to “every person”, the right to freedom of movement only appears to extend to “every Ugandan”, and therefore would not extend to the applicant’s father.

Clearly, only very very limited inferences were capable of being drawn on the basis of the single article reproduced in the second appendix to the s. 13 report. Yet, sweeping inferences were ostensibly drawn concerning the availability and effectiveness of Ugandan state protection on the basis of the existence of this single article in the Ugandan Constitution.
Non Compliance with the UNHCR Handbook
I find it inconceivable that at least basic information about Uganda and its legal system would not have been obtainable by the RAC. While I acknowledge that the burden of proof in principle rests on the applicant, it is also the case that the duty to ascertain and evaluate relevant facts is shared between the applicant and the RAC. The RAC has significantly greater resources than the applicant in terms of access to country of origin information. It is known that both the RAC and the RAT have an extensive library of country of origin information as well as access to reliable on line sources of country of origin information. It was surely possible to access and exhibit a meaningful picture of Ugandan society and its legal system for the purposes of a meaningful appraisal of the availability of state protection. On the evidence before me the country of origin information resorted to by the RAC with respect to Uganda was significantly deficient and inadequate and could not possibly have justified the inference purportedly drawn from it namely that “the applicant and her mother and father would therefore have the option of returning to Uganda as an alternative to going to Nigeria”. It might well be true that that is a viable option for them but the inference that that is so was simply incapable of being drawn on the information available to the RAC as disclosed in the papers before me. However, the remedy of an appeal will offer opportunities to both sides to urge the re-appraisal of existing evidence and, perhaps, consideration of additional evidence.

This Court will adopt with approval the following statement contained in the Refugee in International Law (3rd Ed) by Professor Guy Goodwin Gill and Jane McAdam, concerning the proper and appropriate use of country of origin information. The authors state at p. 546 of their text:-
          “There can be no doubting the value of accurate, in depth, up to date and trustworthy information in the refugee determination context. For example, refugees may have fled the country as a result of counter insurgency operations. The fuller picture will show the historical origins of the conflict, such as resistance to dispossession of historical land rights; the protagonists (such as the military, representing a dominant or indigenous elite); the policies (such as institutionalised or systemic discrimination against particular ethnic, linguistic, religious, or economic groups or classes); and the tactics (such as the abduction, torture and arbitrary killing of group representatives). A complete picture will never be available, but a comprehensive approach will contribute significantly to identifying refugee related reasons for flight. Knowing past patterns and present conditions enables one to make reasonably accurate predictions about the future; about the way certain elements are likely to react and interact; and therefore about the degree of security awaiting those returned or returning to their country of origin.

          Documentary evidence, particularly electronically accessible country reports, has a seductive air, often seeming sufficient to decide the case. But like any other material, documentary evidence must still be accessed and put in context, whether it relates personally to the claimant, or to conditions in the country of origin. Information of the latter kind often gives only a general impression, more or less detailed as to what is going on. Like the refugee determination process itself, it has the artificial quality of freezing time, in a way which can lead to single events acquiring greater significance than is their due. Situations remain fluid, however. Recognising that, and drawing the right sorts of inference from evidence acknowledged as credible and trustworthy, are nevertheless the hallmark of sound decisions.”
It is clear from the above, that country of origin information can present a valid and legitimate basis for the drawing of inferences concerning issues like the availability of state protection. However, for such inferences to be legitimately drawn the conclusions arrived at must be logically derivable from the assumed or known, they must be based on evidence and be reasonably open to the decision maker. It seems to me that certain of the inferences purportedly drawn on the basis of the limited country of origin information utilised in this case are difficult to rationalise or justify. In the opinion of this Court in order to provide a proper basis for the drawing of relevant inferences significantly further and better enquiries ought to have been made by the RAC concerning the social and legal situation in Nigeria, and in Uganda in particular, and the fact that this was not done represents, on one view of it, a missed opportunity. Fortunately, it is something that can be remedied readily on appeal.

In conclusion, I propose to dismiss the application for leave to apply for judicial review. As previously stated, it has been a borderline case as to whether I would or would not grant the applicant the leave that she has sought. In all the circumstances I propose to exercise my discretion to deviate from the normal rule whereby costs should follow the event and to make no order as to costs.

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