O. (A.B.) & Ors v. Minister for Justice, Equality and Law Reform & Anor

Factual and Procedural Background

The first named applicant, a national of Nigeria and a Pentecostal Christian, sought leave to apply for judicial review of the Minister for Justice, Equality and Law Reform's decision to refuse her application for subsidiary protection. The second and third named applicants are her children. The Minister's refusal of subsidiary protection led to two challenges: one against the refusal itself and another against a deportation order issued subsequently. The applicants sought orders quashing both decisions and an order mandating the Minister to reconsider the subsidiary protection application.

The factual background involves the first named applicant's difficulties with her Muslim husband's family following his conversion to Christianity and their marriage. She alleges threats, assaults, a miscarriage caused by an assault, harassment, and the kidnapping of her son by her father-in-law and his associates. She produced various documents including a birth certificate, medical report, police diary extract, and affidavits to support her claims. She did not initially report the assault to the police but did report the kidnapping. The applicants applied for asylum in the State, which was rejected at initial and appeal stages, and their humanitarian leave to remain was also refused. A subsidiary protection application was then made, based on the same grounds as the asylum and humanitarian leave claims.

The Minister assessed the subsidiary protection application, considering country of origin information and the applicant's submissions, ultimately concluding that state protection was available in Nigeria and that the applicant's credibility was doubtful. The Minister refused subsidiary protection and recommended deportation orders.

Legal Issues Presented

1. Whether the Minister's decision that state protection was available in Nigeria was valid.
2. Whether the Minister applied the correct standard of analysis and review in considering the subsidiary protection application.
3. Whether the Minister's assessment of the applicant's credibility was appropriate.

Arguments of the Parties

Appellants' Arguments

• The standard of analysis required of the Minister for subsidiary protection applications should be equivalent to that applied by the Refugee Appeals Tribunal (RAT), not the lower standard applicable to leave to remain applications.
• The Minister's finding that state protection was available was incorrect because the Nigerian police do not adequately investigate domestic violence and treat such matters as family issues.
• The Minister misinterpreted the term "discreet" in the police diary extract, which they argue implies non-investigation rather than prioritised attention.
• The Minister's credibility findings conflicted with prior decisions and failed to properly reconcile inconsistencies regarding the applicant's temporary relocation within Nigeria.

Respondents' Arguments

• The standard of consideration required of the Minister equates to that applicable to section 3 applications for leave to remain, reflecting the procedural context in which subsidiary protection applications are made.
• The Minister was entitled to rely on the prior credibility assessments made by ORAC and the RAT, which had the opportunity to observe the applicant directly.
• The Minister's conclusion that state protection was generally available in Nigeria was supported by country of origin reports and evidence of governmental efforts to address domestic violence.

Table of Precedents Cited

Court's Reasoning and Analysis

The Court began by recognizing the procedural posture: the subsidiary protection application was made after extensive consideration at earlier stages, including asylum applications and appeals. It emphasized that the Minister’s role at this stage is informed by prior detailed inquiries and that the standard of consideration is influenced by the procedural context.

Regarding state protection, the Court adopted the Canada (A.G.) v Ward principle that there is a presumption of state capability to protect citizens unless clear and convincing evidence shows otherwise. The Court found that the Minister’s conclusion that state protection was available in Nigeria was rational and fairly supported by country of origin information and evidence of governmental efforts to address domestic violence.

The Court acknowledged the applicant’s failure to report the initial assault to the police and found the Minister’s interpretation of the police diary extract as indicating an ongoing investigation reasonable. It rejected the applicants’ contention that the term "discreet" implied non-investigation, concluding the term likely referred to a cautious approach due to the family context.

The Court also considered internal relocation within Nigeria, noting the federal nature of the state and the absence of a complete breakdown of state apparatus, which supported the Minister’s conclusion that internal relocation was a viable option.

On credibility, the Court held that the Minister was entitled to rely on the prior findings of ORAC and the RAT, which had the opportunity to assess the applicant directly. Differences in the treatment of the applicant’s temporary move to northern Nigeria did not amount to a fundamental conflict and the Minister’s approach was unobjectionable.

Overall, the Court applied a heightened standard of scrutiny due to the human rights context but balanced this against the procedural stage and prior assessments. It found the Minister’s decision rational, supported by evidence, and not unreasonable.

Holding and Implications

The Court REFUSED the application for leave to apply for judicial review of the Minister’s decisions refusing subsidiary protection and issuing deportation orders.

The direct effect is that the Minister’s decisions stand and the applicants’ challenges fail. The Court did not set any new precedent but reaffirmed existing principles regarding the standard of review, the presumption of state protection, and the procedural context of subsidiary protection applications. The decision underscores the importance of the procedural history and evidential support in judicial review of immigration and asylum decisions.