The High Court has refused a Nigerian mother and her three children’s application to quash a Refugee Appeals Tribunal decision that upheld a recommendation not to recognise them as refugees.
In a judgment delivered on 21 November 2008, Mr Justice Hedigan said the tribunal had acted rationally, reasonably and in accordance with fair procedures. The application for judicial review was refused.
The family’s case concerned the mother’s fear that her son would be forcibly circumcised and given tribal markings in Nigeria. She said two of her daughters had died as infants after circumcision and marking, and that she fled with her children in 2003 when her husband’s family sought to prepare her son for the practices. She also alleged that she was raped before leaving Nigeria. Those claims had been rejected by the tribunal on credibility grounds.
The applicants argued that the tribunal member had no evidential basis for concluding that parents could prevent circumcision and tribal marking. They also said that if the tribunal relied on country information beyond what they had submitted, it should have disclosed it under section 16(8) of the Refugee Act 1996. They challenged the tribunal’s conclusion that state protection could reasonably be available in Nigeria.
The judge found that country information already before the tribunal provided a sufficient basis for its view about parents’ role. He noted material referring to parents who rejected female genital mutilation, the absence of reported consequences for refusing it, and a report describing parents resisting facial marking. The tribunal’s failure to cite that information expressly did not, in the circumstances, breach fair procedures. The judge therefore found no breach of section 16(8).
On state protection, the court said the evidence did not clearly and convincingly establish that Nigerian protection would not reasonably be available if the son faced a threat of forced circumcision or marking. The judgment noted evidence that, although the police force was imperfect, some protection was available for complaints about criminal offences; it also treated forcible circumcision or marking as assault. The applicants had made a police complaint in 1999 but had not sought protection for the later alleged threats before fleeing. The judge said that was a factor to weigh, not proof by itself that protection was available.
The ruling concerned the judicial review challenge to the tribunal’s decision. The court refused the relief sought; it did not grant the order to quash that decision.