The High Court has refused an application for judicial review by a woman whose asylum claim was based on a fear that her daughter would be subjected to female genital mutilation (FGM) in their country of origin, identified in the judgment only as N.
The redacted judgment, delivered by Mr Justice Feeney on 9 February 2007, concerned the woman and her two dependent children. The Refugee Appeals Tribunal had affirmed the refusal of their applications for refugee status in a decision dated 20 June 2005.
The woman said she left N. because her daughter would be expected, as a matter of tradition, to undergo FGM at about eight years old. She said both parents opposed the practice and that there had been discussion and pressure, but no physical threat or attempt to take the child. She had not sought help from police, saying she believed it was a cultural matter and they would not intervene.
The Tribunal accepted the woman’s evidence for the purpose of its assessment. It found, however, that the fear was not objectively well founded and that she had not provided clear and convincing evidence that the authorities would be unable or unwilling to protect her daughter. The judicial review challenged both conclusions. Other grounds, including one concerning fair procedures, were not pursued at the hearing.
The High Court found that the Tribunal had applied the correct test for a well-founded fear of persecution, which requires both a genuine subjective fear and an objective basis. It held that the Tribunal’s assessment of risk was supported by the evidence considered as a whole, including that both parents opposed FGM, no physical threat had been made, and no effort had been made to remove the child. The court said it could not substitute its own view for the Tribunal’s where there was no defect in the decision-making process.
On state protection, the court said the Tribunal had treated that issue separately and had considered the woman’s explanation for not approaching the authorities alongside country-of-origin information. It held that the Tribunal had not treated her failure to seek police help as, by itself, enough to defeat the claim. The court concluded that the Tribunal applied the correct legal test and that the woman had not supplied evidence showing the authorities would be unable or unwilling to protect her.
The court refused the relief sought. The judgment does not set out a separate order concerning costs.