The High Court refused an infant’s application to quash a report by the Refugee Applications Commissioner (RAC) refusing refugee status, while holding that the report’s finding on state protection in Nigeria could not stand without evidence that protection would be available.
The judicial review concerned an application made on behalf of O.O., an infant suing through her mother and next friend, T.T.O. The mother said she had fled Jos, Nigeria, because of clashes between Muslims and Christians. She said her daughter would face danger if returned, but confirmed at interview that the child’s fears were based solely on her own fears. The child had never been to Nigeria.
The RAC concluded in March 2011 that the child had not established a well-founded fear of persecution. The Refugee Appeals Tribunal dismissed a papers-only appeal in May 2011. The child then sought judicial review of the RAC report. The High Court permitted the review to proceed despite the appeal, noting that the appeal had been lodged without prejudice to judicial review and had been decided on the papers.
The substantive dispute included whether the RAC could rely on adverse credibility findings made in the mother’s asylum case. The court held that it could. It noted that the mother had said the child’s fears were entirely based on her own and that no distinct risk particular to the child had been put forward. The judge concluded that the RAC was entitled to consider the findings against the mother when assessing the child’s claim.
The court reached a different conclusion on state protection. The Commissioner had considered whether the child’s mother could seek police protection if the child were at risk. The judge held that the finding that protection was available could not stand because there was no evidence establishing that it would in fact be available if needed.
The court upheld the internal relocation assessment. The mother had been asked about moving from Jos to Lagos and said clashes could happen anywhere in Nigeria. The judge found it was reasonably open to the Commissioner to conclude that the mother had not provided sufficient evidence that the child could not safely live with her elsewhere in the country.
The judge also rejected the argument that the Commissioner had failed to apply a forward-looking assessment of future risk. Given the finding that no part of the mother’s claim was credible, the court held there was no obligation to apply that test in these circumstances.
Despite setting aside the state protection finding as unsupported, the court refused the application to quash the RAC report.