The Applicant was a Nigerian citizen who applied for refugee status. She expressed a fear that she would be forcibly circumcised by her husband’s family if she was returned to Nigeria. The Refugee Applications Commissioner recommended that she not declared a refugee, and her appeal against this recommendation was refused by the Refugee Appeals Tribunal (RAT) on the basis that there was adequate State protection available to the Applicant in Nigeria. The RAT did not dispute the Applicant’s credibility.
The Applicant sought leave to bring judicial review proceedings to quash the decision of the RAT primarily on the basis that the RAT had erred in finding that there was adequate State protection available in Nigeria to the women like her.
The High Court found that the conclusion arrived at by the RAT was an unreasonable one. The country of origin information submitted by the Applicant did not inspire confidence that State protection might reasonably have been forthcoming; on the contrary, the country of origin information supported her evidence that recourse to the police would have been futile. The Court accepted that in the context of refugee applications it must be presumed that a State is capable of protecting its citizens, but cautioned this was a rebuttable presumption and that in individual cases it might be rebutted by evidence to the contrary. The Court further held that a person’s failure to seek protection from the State cannot lead to the universal conclusion that he or she is not a refugee. McMahon J. noted that the facts and circumstances of each case as established by the evidence and from the country of origin information might lead to the conclusion that seeking State assistance would have been futile. It was noted also that the duty to protect its citizens is on the State, and that protection forthcoming from NGOs and other similar organisations do not meet the standard required by the 1951 Geneva Convention.
Applying these principles to the Applicant’s case, the High Court granted leave to issue judicial review proceedings.