A-R Ors -v- Refugee Appeals Tribunal Ors

High Court

Judgment was given by Mr Justice John Edwards on February 25th, 2009.

Judgment

There is sufficient evidence of the existence of state protection for those threatened with female genital mutilation (FGM) in Ghana to justify refusing a Ghanaian woman asylum.

The available country of origin information suggests that the weaknesses of the state protection system in Ghana is more due to a reluctance on the part of the general population in the northern part of the country to report incidents of FGM to the authorities than to an attitudinal problem on the part of the police.

Background

A mother and daughter fled Ghana in September 2005 and arrived in Ireland on September 22nd. The mother applied for asylum on her own behalf and that of her daughter, aged one.

The mother came from a village in the northern part of the country, but worked for many years as a hairdresser in Obuasi- Adansi. She had four children with her partner whom she married in September 2005.

The first two were boys and remained in Ghana with their father. The third child was girl, the second applicant in this case, and the fourth was also a girl. She was born in Ireland as the applicant was heavily pregnant when she arrived in Ireland.

She claimed that she had a well-founded fear of persecution as her family wished her to undergo FGM and she also feared that her daughter would be forced to undergo the same procedure.

She said her problems began about nine years earlier, about the time she met her partner, now her husband, when her family put pressure on her to undergo the procedure. She fled the village, returning only when her three children were born, thinking the issue would not now arise.

However, her family continued to threaten her, following her to Obuasi-Adansi. She then fled the country with her daughter.

She acknowledged that she did not report the threats to the police as “the law respects the tradition of circumcision in my village”. She also said no one had intervened when her sister had bled to death after undergoing FGM.

She made her application to the Refugee Applications Commissioner, who noted that FGM was outlawed in Ghana and had been a criminal offence there since 1994, yet the applicant had not reported the threats to the police or sought their assistance.

He found that State assistance would have been available to her had it been sought and recommended she not be declared a refugee.

This decision was appealed to the Refugee Appeals Tribunal. This found that, even if she had a well-founded fear, “account has to be taken of the availability of the forces of the state to counter” it.

The tribunal said information showed that although FGM had been a criminal offence in Ghana since 1994, it was still widely practised in the north and there were relatively few prosecutions.

However, there had been huge improvement in efforts to combat FGM, prosecutions did occur and there was nothing to suggest that a complaint concerning a potential forced circumcision would be ignored by the authorities. The failure of the applicant to report the threat defeated her claim.

The applicant took judicial review proceedings against this decision, arguing that the tribunal had failed to consider all the evidence, especially in relation to the availability of state protection; that it had failed to apply the correct legal principles relating to state protection; that it took into account irrelevant considerations and failed to have sufficient regard to the subjective fear of persecution.

She said the tribunal had selective regard to the country-of- origin information before it and that the assessment was made without any assessment of the adequacy of the state protection available.

She pointed out that the report on which the tribunal relied also stated that the law did not punish accomplices who helped the FGM practitioner and that Ghanaian women’s rights activists considered the law too lenient.

She also criticised the tribunal for not considering the British Home Office report before it, which quotes both the UN and Amnesty International on the high incidence of FGM in the northern part of the country.

The application on the part of the second-named applicant, the daughter, was that the respondent had failed to consider it separately from the mother’s case.

Counsel for the respondents submitted that the applicants had not provided convincing evidence rebutting the presumption that the Ghanaian state was capable of protecting its citizens.

Referring to the daughter, counsel for the respondent said that the applicant had stated she wanted her daughter’s application considered with hers.

Decision

Mr Justice Edwards said that, having read all the country-of- origin information, he was not satisfied there was selective use of this information, nor was he satisfied that the conclusion of the tribunal was against the thrust of the available country-of-origin information.

“The court should not interfere with a finding of the Refugee Appeals Tribunal where there is evidence to support it and where the tribunal member has, prima facie, acted within jurisdiction.”

He said, as the tribunal member pointed out, state protection did not have to be perfect. It was unfortunate that the tribunal members had used the words “huge improvement” in relation to efforts to combat FGM.

“That characterisation was an overstatement and . . . the tribunal member indulged in hyperbole on this point.”

Nonetheless, Mr Justice Edwards said there was still sufficient evidence of the existence of state protection and of a generally improving situation to sustain the tribunal’s decision and it would be wrong and inappropriate for the court to interfere with it.

In order to invoke state protection, a person had to seek it and the community had to support the state’s evidence by not withholding evidence from the police.

He said that the available country-of-origin information did not establish that the weaknesses of state protection were primarily to do with an attitudinal attitude on the part of the police, but rather with a reluctance on the part of the population in the northern part of the country to report incidents of FGM to the authorities.

In relation to the second-named applicant, he said he was satisfied her application was validly subsumed into her mother’s.