K.D. (Nigeria) -v- Refugee Appeals Tribunal & ors

Factual and Procedural Background

The applicant, a member of the Osu caste from Nigeria, claimed persecution due to her caste status and feared further persecution if returned. She applied for asylum in 2006, citing cultural discrimination and threats related to her Osu status, particularly from her prospective in-laws following marriage negotiations. The applicant experienced physical assault leading to a miscarriage, arson attack on her home, and threats to her life. Despite police intervention and arrests of assailants, the applicant fled Nigeria to Ireland, leaving her son behind.

The Refugee Applications Commissioner and Refugee Appeals Tribunal recommended against granting refugee status, finding that state protection was available and that the applicant could relocate internally within Nigeria outside Igboland, where the Osu caste system is prevalent. The applicant sought to quash the Tribunal’s decision dated 21 April 2009. A hearing occurred on 18 June 2013, with legal representation for both parties.

Legal Issues Presented

1. Whether the Tribunal correctly assessed the applicant’s fear of persecution both from her partner’s family and from wider societal discrimination against the Osu caste.
2. Whether state protection was effectively available to the applicant in Nigeria.
3. Whether the Tribunal properly applied the internal relocation principle under Regulation 7 of the ECs (Eligibility for Protection) Regulations 2006.
4. Whether the Tribunal erred in allocating the burden of proof concerning the reasonableness of internal relocation.
5. Whether the Tribunal failed to consider relevant previous positive decisions and breached procedural fairness by relying on undisclosed Country of Origin Information (COI).

Arguments of the Parties

Appellant's Arguments

• The Tribunal failed to assess the two core aspects of her claim: fear of persecution from her partner’s family and broader societal discrimination against the Osu.
• The Tribunal made irrational and unreasonable findings on state protection, ignoring COI indicating the Nigerian state’s inability to protect the Osu effectively.
• The Tribunal relied on undisclosed COI, breaching Section 16(8) of the Refugee Act 1996.
• The Tribunal erred by not identifying a specific internal relocation area as required by Regulation 7 of the ECs (Eligibility for Protection) Regulations 2006.
• The Tribunal wrongly placed the burden on the applicant to disprove internal relocation as a viable option.
• The Tribunal failed to consider COI suggesting relocation would be unduly harsh.
• The Tribunal neglected to consider six previous positive Tribunal decisions relevant to claims involving persecution related to religious inter-marriage and Osu status.

Respondents' Arguments

• The applicant’s claim was primarily about fear from her partner’s family, not generalised persecution as an Osu.
• The police intervention, including arrests, demonstrated availability of state protection.
• The COI relied upon by the applicant was general and not particularly helpful.
• Any breach of Section 16(8) was technical and caused no prejudice as the COI was well known in the field.
• The applicant’s fear related to a small number of non-state actors in a localized area, making internal relocation reasonable.
• Previous Tribunal decisions vary due to differing facts; thus, they do not bind the current case.

Table of Precedents Cited

Court's Reasoning and Analysis

The Court acknowledged that the Tribunal accepted the applicant’s Osu status and the persecution she faced, particularly from her prospective in-laws. The Tribunal’s decision rested on two main findings: that state protection was available and that internal relocation within Nigeria was reasonable.

Regarding state protection, the Tribunal found that police intervention had occurred, including arrests and bail, and that the police acted appropriately. However, the Court noted ambiguity in the Tribunal’s treatment of a significant police letter recommending the applicant’s urgent removal from Enugu State for safety. The Tribunal did not adequately address this letter’s implications, leading to an incomplete and unclear finding on state protection.

On internal relocation, the Tribunal identified Port Harcourt as a potential safe area outside Igboland but failed to investigate or discuss with the applicant whether this relocation was feasible or safe, nor did it consider COI specific to Port Harcourt. The Tribunal placed the burden on the applicant to disprove the reasonableness of relocation, contrary to the shared burden principle established in UNHCR Guidelines and case law.

The Court extracted and outlined detailed principles governing internal relocation assessments, emphasizing that such findings require a careful inquiry into the existence of a safe location, availability of meaningful state protection, and reasonableness of relocation considering the applicant's personal circumstances. The Tribunal’s failure to conduct this inquiry or to discuss the relocation area with the applicant was a critical procedural and substantive deficiency.

The Court also expressed concern that the Tribunal did not consider six previous positive Tribunal decisions relevant to similar claims, which could have provided valuable guidance.

Finally, the Court considered the Tribunal’s reliance on undisclosed COI to be a minor technical breach that did not prejudice the applicant due to the general familiarity of such reports in the field.

Holding and Implications

The Court QUASHED the Tribunal’s decision due to inadequate consideration of the internal relocation alternative in compliance with Regulation 7 of the ECs (Eligibility for Protection) Regulations 2006 and the UNHCR Guidelines.

The appeal was remitted to a different Tribunal Member for fresh consideration, with directions to conduct a proper inquiry into the availability and reasonableness of internal relocation, including engagement with the applicant and examination of relevant COI. The Court emphasized the need for expedition given the applicant’s prolonged stay in the direct provision system.

No new legal precedent was established; the decision’s direct effect is to require a more thorough and procedurally fair reassessment of the applicant’s refugee claim.