Refugee and Protection Officer v BA (Nigeria)
[2022] NZHC 706
•7 April 2022
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CIV-2021-404-000999
[2022] NZHC 706
UNDER the Immigration Act 2009, section 245 IN THE MATTER
of an application for leave to appeal
BETWEEN
A REFUGEE AND PROTECTION OFFICER
Applicant
AND
BA (NIGERIA)
Respondent
Hearing: 30 November 2021 Appearances:
A Ewing and H Bergin for the Crown
R S Pidgeon and L I E Tothill for the Respondent
Judgment:
7 April 2022
JUDGMENT OF WOOLFORD J
This judgment was delivered by me on Thursday, 7 April 2022 at 2:30 pm pursuant to r 11.5 of the High Court Rules.
Registrar/Deputy Registrar
Solicitors:Crown Law (A Ewing and H Bergin), Wellington Dixon & Co Lawyers (L Tothill), Auckland
Counsel: R S Pidgeon, Maxwelton Chambers, Takapuna
REFUGEE AND PROTECTION OFFICER v BA (NIGERIA) [2022] NZHC 706 [7 April 2022]
Introduction
[1] The respondent, a Nigerian Muslim who has converted to Christianity, was granted refugee status by the Immigration and Protection Tribunal (the Tribunal) in a decision dated 11 May 2021.1 The Crown appeals against the Tribunal’s decision as being wrong in law on the basis that the Tribunal considered only a single Nigerian city – Lagos – when determining whether he had an internal protection alternative. The Crown says the Tribunal was obliged to look at the possibility of the respondent safely relocating to other cities in Nigeria, but failed to do so.
Background
[2] The respondent is a man [redacted], born in a city in [redacted] Nigeria. His father is the chief imam of a mosque there. While the respondent was raised in the Islamic faith, he converted to Christianity and was baptised on [date]. He now practises “friendship evangelism”.
[3] His conversion brought shame on his father and led to the respondent being sought by his brothers in November 2014. This, in turn, led to members of his father’s congregation attacking the church where he was baptised. The respondent was absent at the time, but two members of his congregation were killed. The respondent left his hometown and lived elsewhere in Nigeria before departing for New Zealand in 2015 where he sought refugee status. After two unsuccessful claims for refugee status and two related judicial review applications, on a third application the Tribunal concluded the respondent had a well-founded fear of persecution for a Convention reason (his religion). If he continued practising his religion in his hometown, he would come to the attention of his family and as a consequence faced a risk of serious harm or death.
[4] The Crown does not challenge that conclusion. Rather, the focus is on the Tribunal’s finding on the second limb of the test for refugee status – that the respondent did not have a valid internal protection alternative in Nigeria because the prevalence of COVID-19 in Lagos (and only Lagos) would expose him to the risk of serious harm. The respondent’s religion was not the problem (Lagos is substantially Christian). The
1 BA (Nigeria) [2021] NZIPT 801846.
danger arose from the respondent’s sickle cell disease, which made him particularly prone to the risk of harm from COVID-19. Put shortly, he could not live in his hometown because of his Christianity, and he could not live in Lagos because of the prevalence of COVID-19 there.
Tribunal decision
[5] After accepting that the respondent had a well-founded fear of being persecuted for a Convention reason in his hometown, the Tribunal turned to the internal protection alternative. It set out in the requirements it had earlier articulated in BI (Afghanistan):2
(a)That the proposed internal protection alternative is accessible to the claimant. This requires that the access be practical, safe and legal.
(b)That in the proposed site of internal protection there is no risk of being persecuted for a Convention reason.
(c)That in the proposed site of internal protection there are no new risks of being persecuted or of being exposed to other forms of serious harm or refoulement.
(d)That in the proposed site of internal protection basic norms of civil, political and socio-economic rights will be provided by the state. In this inquiry reference is to be made to the human rights standards suggested by the Refugee Convention itself.
[6] The Tribunal noted the important caveat then described in BI (Afghanistan) that in any proposed site of internal protection, the claimant cannot be expected to forego their human rights to avoid being persecuted, noting that to do so:3
… would be to render hollow the jurisprudential victory won over the ‘discretion’ logic which had, unfortunately, crept into refugee status determination in many jurisdictions but which has been rightly exposed as being contrary to the object and purpose of the Refugee Convention.
[7] The Tribunal stated that each of these conditions must be satisfied for there to be a viable internal protection alternative, sufficient to deny the claimant the refugee status to which he would otherwise be entitled.
2 BI (Afghanistan) NZIPT 801220 at [50].
3 At [51].
[8]The Tribunal then stated:4
As indicated to counsel during the second date of the hearing, to ensure the assessment is fair to the appellant the Tribunal must identify a place in the country of nationality to which the person might, arguably, find an internal protection alternative. Here, because of its size and the greater ability to earn a living there, the Tribunal nominates Lagos city as the nominal site.
[9] The Tribunal then found the first two requirements were met. Access to Lagos is practical, safe and legal. The risk of being persecuted in Lagos for a Convention reason was also reduced to below the real chance threshold:
The chance of somebody who knew his father walking along the street at the same time as the [respondent] including when he was ministering in the street, or while he was volunteering, and recognising him as being his father’s apostate Christian son is random, remote and well below the real chance threshold.
[10]Furthermore,
There is simply no information before the Tribunal to establish that, were the [respondent] to return to Lagos and engage in his particular form of Pentecostal religious practice, namely friendship evangelism that it would expose him to any risk of harm at the real chance level from anyone in the Fulani population there or from militants, Boko Haram or any other Muslim for that matter.
[11] Turning to the third requirement, the Tribunal found it was not met. The Tribunal was satisfied that having regard to the fact that the respondent suffers from sickle cell disease he was at risk of serious harm in Lagos during the current COVID- 19 pandemic. The Tribunal cited a United States Centre for Disease Control and Prevention (USCDC) report, which found that persons suffering from sickle cell disease faced heightened risk of hospitalisation, intensive care admission and death.
[12] The Tribunal found that the risk that the respondent may contract COVID-19 in Lagos was real. Nigeria has been categorised as one of 13 high risk countries with respect to COVID-19 and the weak state of its healthcare system made it vulnerable. Lagos state remained by far the state with the largest single confirmed infection rate and number of deaths.
4 BA (Nigeria), above n 1, at [105].
[13]The Tribunal concluded:
What is certain, however, is that given his heightened vulnerability should the [respondent] contact COVID-19 in Lagos at a time of systemic stress on the healthcare system, the consequences for him could be dire, if not fatal. He cannot therefore obtain meaningful domestic protection from the risk he faces in [his hometown], by moving to and residing in Lagos.
[14] Having found that the respondent faced a new risk of serious harm in Lagos, the Tribunal said it was not necessary to come to any conclusion on the further requirements needed to establish an internal protection alternative.
[15] The Tribunal therefore found that the respondent was entitled to be recognised as a refugee.
The law
[16] Section 129 of the Immigration Act 2009 (the Act) provides that a person must be recognised as a refugee in accordance with the Act if he or she is a refugee within the meaning of the Refugee Convention. The Refugee Convention relevantly defines a refugee as a person who:
Owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country…
[17] There are two key elements of the definition – a well-founded fear of persecution for a Convention reason and an inability or unwillingness owing to such fear to avail himself of the protection of the country of his nationality.
[18] The definition does not explicitly refer to the concept of an internal protection alternative which has been developed in recent decades by countries in an attempt to more carefully delineate the limits of their legal obligations under the Convention.5 There remains some debate regarding the issue of where, in the course of refugee status determination, an internal protection alternative arises. On one approach the availability of protection in both the area where the claimant fears persecution for a
5 Ninette Kelley “Internal Flight/Relocation/Protection Alternative: Is it Reasonable?” (2002) 14 1JRL 4 at 5.
Convention reason and another part of the country are part of the well-founded fear element. On this approach the internal protection alternative is part of the determination of inclusion in the definition for which the claimant bears the burden of establishing.6
[19] On another approach, the decision-maker first considers whether the claimant has a well-founded fear of persecution in one part of the country. This includes a determination of whether the state is unable or unwilling to provide protection from the harm feared there. If this is established, then the onus shifts to the party asserting that there is an internal protection alternative to show that it exists.7
[20] The forerunner to the Tribunal, the Refugee Status Appeals Authority, agreed that the internal protection alternative was properly located in the protection element of the refugee definition, but its approach was modified by s 135(1) of the Act, which provides that it is the responsibility of a claimant to establish his or her claim as a refugee.8 The burden of showing the unavailability of an internal protection alternative therefore rests on the claimant, as it is inherent in the test for refugee status. This onerous task is however made easier for the claimant because of the requirement on the part of the decision-maker to disclose to the claimant any evidence on the existence of an internal protection alternative it intends to rely on and to give the benefit of any doubt to the claimant.
[21] In other words, the claimant must prove, on the balance of probabilities that they have a well-founded fear of persecution. The decision-maker then raises any possible internal protection alternative. Once the claimant is put on notice as to the alleged internal protection alternative, they bear the burden of proving, again on the balance of probabilities, that the proposed site does not meet the test set out in BI (Afghanistan).9
6 At 7.
7 At 7.
8 Refugee Appeal No 71729/99 [2001] NZAR 183 (RSAA) at [90].
9 BI (Afghanistan), above n 2.
Crown submissions
[22] The Crown appeals the Tribunal’s decision on a narrow point of law. The Crown says that despite a large part of Nigeria ostensibly presenting a viable zone of internal protection for the respondent, the Tribunal considered only a single Nigerian city – Lagos – when determining whether he had an available internal protection alternative. After finding that a COVID-19 outbreak in Lagos city meant it did not qualify as an internal protection alternative, the Tribunal went no further. It did not go on to assess whether other parts of Nigeria might be safe for the respondent: it simply granted him refugee status.
[23] The Crown appeals this aspect of the Tribunal’s decision as wrong in law. By limiting its assessment to Lagos city, the Crown says the Tribunal failed to apply the Convention test for internal protection. Eliminating Lagos city as a viable internal protection alternative did not justify the further conclusion that protection was unavailable in Nigeria as a whole. The Crown says the respondent’s refugee status should be remitted to the Tribunal for it to consider whether an internal protection alternative is available elsewhere in Nigeria.
Applying the Convention test in practice
[24] The Crown accepted that the Tribunal could not (and need not) consider every last town of a claimant’s country, individually and sequentially, against the four-step test in order to satisfy itself there is no internal protection alternative available in that country. In most cases, the Tribunal could properly narrow its inquiry to a proposed region of the country where the claimant is prima facie likely to find protection. Doing so enables both claimant and decision-maker to focus on the nominal area, rather than the entire country. The Crown submits that two factors (at least) are relevant in defining where an internal protection alternative might be found.
(a)First, whether the risk a claimant has established is necessarily limited to a particular part of the country. For example, if a claimant risks being persecuted by a government entity with nationwide reach, it may quickly be established that no place is safe; other risks may be ‘local’
to the claimant’s home city or region, meaning the remainder of the country is prima facie available.
(b)Second, the prevailing conditions in the claimant’s home country may tend to exclude some parts of the country as likely candidates for internal protection. For example, in Nigeria parts of the country are predominantly Muslim while others are majority Christian, and this has obvious significance where protection from religious persecution is being considered.
[25] But, says the Crown, if a region within the country is to be the only area considered, the Tribunal must at minimum articulate why it is the only area in the country where an internal protection alternative will be available. The proposed region must serve as a proxy for the availability of internal protection in the country as a whole.
[26] Unless this test is met, the Crown say the Tribunal cannot exclude its proposed site as an available internal protection alternative and stop there. To apply the Convention test, the Tribunal must then go further, assessing other proposed sites against the same four-step test until either (a) an internal protection alternative is found, or (b) its findings provide a basis to conclude that nowhere in the home country qualifies.
Case Law
[27] The Crown cites five cases where the Tribunal’s internal protection inquiry has met the above test:
(a)Where a claimant was at risk from an entire ethnic group, the starting point was to identify parts of the country in which that ethnic group was not the predominant group. Within this narrower area, the Tribunal identified the cities that were practically liveable for the claimant, which were then also ruled out due to high levels of conflict and instability.10
(b)Significant gender-based violence and high levels of conflict in the countryside, along with the claimant’s lack of connections there,
10 Refugee Appeal No 76044 [2008] NZAR 719 (RSAA) at [181] – [184].
meant rural living was not a viable alternative for a female claimant. Accordingly, the Tribunal only considered cities as options for an internal protection alternative.11
(c)Where a gang operated throughout the entirety of the country, with police contacts who could track the claimant down, and the claimant was unable to permanently stay off social media, the Tribunal determined there were no viable internal protection alternatives within the country. The claimant’s whereabouts would become known to the gang, its affiliates, or corrupt police officials.12
(d)A complex system separating rural and urban residents meant it may not be practical to consider sites that would require the claimant to transfer from one to the other. However, even if the claimant could practically transfer her registration, there would still be a well- founded fear of persecution in any of those cities, due to the family and business connections with the person who was causing her harm.13
(e)For an Iraqi claimant, the only region of the country beyond Shia control, or devastation as a result of the conflict with Islamic State, was the Kurdish-controlled north. However, the country information indicated that internally displaced persons, such as the claimant, were unable to settle in Kurdish areas as of right. The Tribunal was satisfied the claimant would be at risk of being returned to the area of persecution.14 Accordingly, there was no viable internal protection alternative.
[28] The Crown submits that, as the above examples demonstrate, the Tribunal usually does not undertake a sequential assessment of every single part of the country; indeed, doing so might impose an unfair burden on the claimant. But if the Tribunal chooses to assess only a single site or region, it must ensure it is an appropriate proxy for the availability of refuge throughout the entire country. Alternatively, the Tribunal might consider a narrower proposed site for convenience, but with the corollary that it must then ‘look further afield’ if its first site does not qualify.
Discussion
[29] The Refugee Convention offers significant flexibility to parties to adopt their own law and procedures for refugee status determination. The cases cited by the Crown demonstrate that flexibility.
11 BD (Colombia) [2020] NZIPT 801801 at [79].
12 AY (Malaysia) [2019] NZIPT 800143 at [135] – [140].
13 AR (China) [2012] NZIPT 800315 at [83] – [85].
14 BC (Iraq 801403 [2018] NZIPT 801403 at [94] – [96].
[30] In Refugee Appeal No 7604415 the claimant was an uneducated single Kurdish woman who had never had a job and who feared her ex-husband and family as divorce was taboo in Kurdish culture. The RSAA appeared to follow the Crown’s proposed approach of narrowing down the kinds of area to which the claimant could relocate.
[31] Because of the risk posed by members of the Kurdish community she would have to find a place of internal protection outside the Kurdish areas of Turkey, that is, away from the east and southeast. In practical terms this left only the major population centres. However, decades of conflict between the Turkish security forces and Kurdish insurgents had caused substantial internal displacement of Kurds to these same population centres. Istanbul in particular was not a viable option given that this city was the home of the brother who had threatened to kill her.
[32] The selection of an internal protection alternative reads as a quick set-up for rejection as the Tribunal was able to decide that any proposed internal protection alternative was completely unviable without any in-depth discussion. The Tribunal went on the point out that as a result, it was impossible to fulfil its obligation and nominate a specific internal protection alternative.16
In summary, there is real difficulty in identifying a geographical location in Turkey where the appellant would be free of a real chance risk of being killed or seriously harmed for her alleged transgression of the “honour” code. The exacting internal protection alternative test as applied in New Zealand precludes a decision maker from assuming, without adequate evidentiary basis, that somehow the putative refugee will muddle her way to a geographical location in which she is free from the risk of being persecuted for a Convention reason. In the circumstances the Authority concludes that it is not possible to identify a site of internal protection which will provide an antidote to the well-founded fear of being persecuted, that is a place where the appellant will not be at risk of being persecuted for a Convention reason.
[33] In BD (Columbia),17 the claimants were a mother and daughter from Bogotá (the largest city in Colombia) who feared an abusive ex-husband. The Tribunal nominated Cali and Medellín as internal protection alternatives, the second and third largest cities respectively.
15 Refugee Appeal No 76044, above n 10.
16 At [51].
17 BD (Colombia) [2020] NZIPT 801801-802.
The high levels of conflict in the countryside and the daughter’s lack of connections there make rural sites unrealistic as internal protection alternatives… The daughter is a city dweller and so an internal protection alternative will be assessed by reference to these cities.
[34] There are however at least two other cities in Colombia with populations over one million (Cartagena and Barranquilla). The Tribunal is clearly balancing both approaches – choosing the kind of area the claimants could live, but arbitrarily narrowing down the proposed site to two cities. The internal protection alternative analysis was however brief; the Tribunal quickly moved on to note that, as the ex- husband had successfully located one of the claimants in New Zealand, there was certainly nowhere in Colombia she could hide.
[35] As for the other cases cited by the Crown, In AR (China) and AY (Malaysia),18 the Tribunal did not nominate an internal protection alternative at all, instead immediately finding that the original danger would follow the claimants throughout their country. In BC (Iraq),19 the claimant was at risk from Islamic State and the Shia Mahdi Army. The only safe region for him was therefore Iraqi Kurdistan – but the Tribunal did not select a particular city in the region. There was evidence internally displaced non-Kurdish Iraqis were legally unable to relocate to Iraqi Kurdistan.
[36] In the present case, the Tribunal member explained the process he would follow in the following manner:20
In this sense, in the IPA sense. I’m not somebody that’s going to locate this guy up in the north. You’ve got to be realistic about here. I mean, you know, for the IPA, all you need to persuade me about is really why Lagos or maybe someone in Ogun State, somewhere down in that part, is not safe. That’s the only thing I’m going to require him to establish with me. So he doesn’t have to persuade me about going to Niger or…
…
Yes, because the whole idea about naming Lagos is not to make it onerous, it’s to just try and make the exercise more manageable for everybody. And because otherwise, you know, he has to effectively disprove that everywhere in – you know, we can’t have a system like that. But where there is a potential IPA, then best practice is to say to the appellant and his representative look,
18 AR (China) [2012] NZIPT 800315 at [85]; and AY (Malaysia) [2019] NZIPT 800143 at [135]. The
Crown points out discussion of the Hukou system in AR (China), but this had no bearing on the decision.
19 BC (Iraq) 801403 [2018] NZIPT 801403.
20 Transcript of hearing at 129 and 133.
this is a place where I think could be a viable one, let’s go through these tests that we have for it and model it out, you know, and maybe there’s two or three places, but, you know, I could name, I could probably name for you 10 or 20 cities but that’s going to make your task a lot more onerous…
[37]Then in the decision itself, the Tribunal member nominated Lagos.
[105] As indicated to counsel during the second date of the hearing, to ensure the assessment is fair to the appellant the Tribunal must identify a place in the country of nationality to which the person might, arguably, find an internal protection alternative. Here, because of its size and the greater ability to earn a living there, the Tribunal nominates Lagos city as the nominal site.
[38] In the particular circumstances of this case, I am satisfied that Lagos did serve as an unarticulated proxy for the rest of Nigeria. The COVID-19 pandemic does not respect international or internal boundaries. Although rates of infection have varied between the various Nigerian states, all states have been affected. Although the country material submitted by the respondent referred largely to Lagos because it was nominated as a proposed site of internal protection by the Tribunal, there were a number of references in the material to conditions nationwide or elsewhere in Nigeria. For example:21
Authorities are battling a second wave of infections that has caused nationwide oxygen shortages. Hospitals in the capital, Abuja, have come close to running out, while demand in Lagos, the centre of the outbreak, has increased as much as sevenfold since early autumn…
Nigeria, population 200 million, was spared the worst in its first COVID-19 wave that began in February last year. But a second wave has hit hard. More than half of Nigeria’s 131,242 confirmed cases have been logged in the past three months. Fatalities now total 1,586.
[39]Further:22
Millions not thousands of Nigerians have already contracted coronavirus, a new study says …
The study was done on 10,000 people from four Nigerian states to estimate the extent of coronavirus in Africa’s most populous nation. It was conducted before a second wave began in early December. The findings of the seroprevalence survey carried out in September and October by Nigeria’s Centre for Disease Control (NCDC) and the Institute for Medical Research (IMR) are staggering …
21 Libby George and Alexis Akwagyiram “Oxygen, oxygen, oxygen: Nigeria battles shortages amid COVID-19 surge (3 February 2021) Reuters < infection in Lagos ‘may top Africa’s official total’” (23 February 2021) BBC
< results found that one in five of those tested in the states of Lagos, Enugu and Nasarawa had been infected. In the north-eastern state of Crombe the proportion was one in ten …
For the head of the NCDC it shows that a large portion of Nigeria’s 186 million inhabitants are still at risk from the virus.
[40]And:23
The findings [of the seroprevalence study by the NCDC] offer the first detailed look into infections in Africa’s most populous country, where a lack of testing supplies has hampered the ability of authorities to fully ascertain the spread of the virus. Such seroprevalence studies are seen as the only way of revealing the actual burden of COVID-19 in Africa.
[41] The Crown does not challenge the Tribunal’s conclusion that the respondent’s risk of catching COVID-19 amounted to a new risk of serious harm sufficient to disqualify Lagos city as a potential internal protection alternative. The respondent has a particular vulnerability. There was therefore no need or utility for the Tribunal to further investigate alternative sites when Lagos city was ruled out because there was obviously a risk of infection throughout Nigeria because of the nature of the pandemic. It may have been more acute in Lagos city as being the centre of the outbreak, but there was an appreciable risk elsewhere.
[42] Furthermore, case law shows that decision-makers have a broad discretion when considering an internal protection alternative, subject to natural justice obligations. They exercise this discretion in various different ways, specific to the facts of the case before them. The Court should not interfere with this discretion as given the variety in circumstances of claimants, any rule would be uncertain and impose an unreasonable burden on both decision-makers and claimants. I cannot say that the Tribunal fell into error in its approach in this case.
Result
[43]The appeal is dismissed.
Woolford J
23 Emmanuel Akinwotu “Nigeria survey suggests 23% of Lagos residents had Covid last year” (23 February 2021) the Guardian <
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