Nigerian citizen who claimed to be victim of voodoo magic has judicial review petition refused



Lady Paton
Lady Paton

A Nigerian woman who claimed to be at risk of trafficking if she was returned to her home country has had her appeal against the refusal of her judicial review petition refused by the Inner House of the Court of Session.

The appellant, OA, argued that the Upper Tribunal had made an error of law in considering her case, and that the Lord Ordinary who heard her petition at first instance, had erred in concluding that it did not have a real prospect of success. In her account, she claimed that a Nigerian doctor had performed voodoo rituals on her forcing her to comply with the wishes of her traffickers.

The appeal was heard by Lady PatonLord Malcolm, and Lord Turnbull. The appellant was represented by Winter, advocate, and the respondent by A. McKinlay, advocate.

Voodoo rituals

The appellant first left Nigeria in 2007 after being persuaded by a customer at the restaurant she worked at to travel to Europe for a better job. Prior to leaving Nigeria, she was taken to a native doctor, who was said to have performed various voodoo rituals on her and convinced her that she would be killed if she failed to comply with instructions or ran away.

Following a stay in Italy in which she was forced to work as a prostitute, the appellant was issued with a Nigerian passport in 2013. She used this passport to travel to London and then Glasgow in 2016 after she accidentally became pregnant. She made a claim for asylum and humanitarian protection in January 2017. The Home Office did not accept the appellant’s claim that she was at risk of trafficking if returned to Nigeria and refused her claim.

The First-tier Tribunal heard an appeal against the Home Office’s decision. In refusing the appeal, the FtT judge noted inconsistencies in the appellant’s account and an absence of any discussion of voodoo in the psychologist’s report prepared on her. The FtT judge was not convinced overall that the appellant’s account of being trafficked to Italy was founded in fact.

On appeal, the Upper Tribunal upheld the decision of the FtT and found it was entitled to form the views it had. The appellant subsequently raised a petition for judicial review of the Upper Tribunal’s decision; however, the Lord Ordinary held that the petition did not raise any important point of principle or practice that would allow it to proceed.

It was submitted for the appellant before the Inner House that the UT had applied the wrong legal test to her case and therefore proceeded in an unfair manner. In relation to the psychologist’s report, she had been diagnosed with PTSD, which was a reasonable explanation for certain credibility issues taken by the FtT. It was also noted that the country information provided broadly supported the appellant’s contention that voodoo could have a powerful effect on affected persons.

Full and careful consideration

Delivering the opinion of the court, Lady Paton began: “Reading the UT’s decision as a whole and in context, it is clear that the UT applied the correct test, namely whether any arguable error of law could be identified. The UT was acting in its sifting role, with a view to identifying any arguable ground of appeal which would result in permission to appeal followed by appropriate appeal procedure.”

She continued: “The UT did not determine the merits, as submitted by the appellant. Rather the UT carried out its proper sifting task seeking to identify any arguable error of law on the part of the FtT. It follows that there was no procedural unfairness.”

Turning to the FtT’s consideration of the psychologist’s report, she said: “We consider that the FtT gave full and careful consideration to the psychologist’s report, the country information, and all other relevant factors, when assessing the appellant’s credibility.”

Lady Paton concluded: “The tribunal was entitled to form the view that there was a lack of detail about significant aspects of the appellant’s claim, to note discrepancies in the account which she gave to the psychologist, to consider that there was an absence of discussion about the effect of voodoo in the particular circumstances of the appellant’s case, and to take the view that country information might be broadly consistent with an applicant’s account but nevertheless the applicant’s claim should not succeed.”

For these reasons, the appeal was refused.

© Scottish Legal News Ltd 2021



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