JTM v Minister for Justice and Equality

• Jurisdiction: Ireland
• Judge: Mr. Justice Kevin Cross
• Judgment Date: 01 March 2012
• Neutral Citation: [2012] IEHC 99
• Docket Number: [No. 1492 J.R./2010]
• Court: High Court
• Date: 01 March 2012

[2012] IEHC 99

THE HIGH COURT

[No. 1492 J.R./2010]

M (JT) v Min for Justice

IN THE MATTER OF COUNCIL DIRECTIVE 2004/83/EC AND S.I. 518 OF 2006 AND THE IMMIGRATION ACT 1999 AND THE REFUGEE ACT 1996

BETWEEN

JTM

APPLICANT

AND

THE MINISTER FOR JUSTICE AND EQUALITY

RESPONDENT

EUROPEAN COMMUNITIES (ELIGIBILITY FOR PROTECTION) REGS 2006 SI 518/2006 REG 5(2)

EUROPEAN COMMUNITIES (ELIGIBILITY FOR PROTECTION) REGS 2006 SI 518/2006 REG 2(1)

EUROPEAN COMMUNITIES (ELIGIBILITY FOR PROTECTION) REGS 2006 SI 518/2006 REG 2(2)

EEC DIR 2004/83 ART 18

EUROPEAN COMMUNITIES (ELIGIBILITY FOR PROTECTION) REGS 2006 SI 518/2006 REG 5

EUROPEAN COMMUNITIES (ELIGIBILITY FOR PROTECTION) REGS 2006 SI 518/2006 REG 5(1)

EUROPEAN COMMUNITIES (ELIGIBILITY FOR PROTECTION) REGS 2006 SI 518/2006 REG 5(1)(A)

EUROPEAN COMMUNITIES (ELIGIBILITY FOR PROTECTION) REGS 2006 SI 518/2006 REG 5(1)(C)

T (MS) & T (J) (A MINOR) v MIN FOR JUSTICE UNREP COOKE 4.12.2009 2009/54/13750 2009 IEHC 529

EUROPEAN COMMUNITIES ACT 1972 S3

EEC DIR 2004/83 CHAP 2

EEC DIR 2004/83 CHAP 5

EEC DIR 2004/83 CHAP 6

EUROPEAN COMMUNITIES (ELIGIBILITY FOR PROTECTION) REGS 2006 SI 518/2006 REG 4(3)

CORK CO COUNCIL v WHILLOCK & JUDGE MURPHY 1993 1 IR 231 1992/10/3239

EUROPEAN COMMUNITIES (ELIGIBILITY FOR PROTECTION) REGS 2006 SI 518/2006 REG 5(1)(B)

IMMIGRATION LAW

Subsidiary protection

Serious harm - Statutory interpretation - Whether serious harm could only be carried out by "actors of serious harm" - Whether applicant had not suffered serious harm - Whether respondent failing to consider existence of compelling reasons to grant subsidiary protection - European Communities (Eligibility for Protection) Regulations 2006 (SI 518/2006), reg 2 - Council Directive 2004/83/EC - Certiorari granted (2010/1492JR - Cross J - 1/3/2012)[2012] IEHC 99

M(JT) v Minister for Justice

Mr. Justice Kevin Cross

1 The case consists of a challenge to a decision of the respondent as notified by letter of 29^th October, 2010, to the applicant of the refusal of her application for subsidiary protection. Leave to challenge the decision was granted by order and judgment of Hogan J. on the grounds as follows:-

2 (a) The respondent in the analysis conducted, erred in law in concluding that because State protection was available in respect of the actions of non-State agents who inflicted serious injury on the applicant, the said injury could not amount to "serious harm" within the meaning of the European Communities (Eligibility for Protection) Regulations 2006 ( S.I. 518 of 2006).

3 (b) The respondent misconstrued and/or misapplied the provisions of Regulation 5(2) of S.I. 518 of 2006 in failing in the assessment conducted to consider whether, arising out of the previous harm suffered by the applicant, compelling reasons existed to warrant a determination that she was eligible for subsidiary protection.

4 2. The applicant, who is a Nigerian national, arrived in the State on 28^th November, 2006, and applied for asylum. She had entered into an arranged marriage at the age of 16 years and was unable to have children. She suffered from Sickle-Cell Anaemia. The applicant recounted serious ill-treatment, rape and indeed torture at the hands of her husband and his associates, which left scars on he body which treatment continued to have traumatic experience upon her.

5 3. The credibility of the applicant is not and could not be in doubt.

6 4. Initially, the applicant applied for asylum which was rejected by the Refugee Appeals Commissioner and thereafter, on appeal, by the Refugee Appeals Tribunal on the grounds that internal relocation was appropriate.

7 5. The applicant applied for subsidiary protection which was refused by letter dated 29^th October, 2010.

8 6. It is against this refusal that the applicant sought judicial review, initially applying for leave on a number of grounds, but ultimately she was granted leave on the above grounds only.

9 7. The crux of the matter turns upon the conclusion reached by the Minister under the heading 'Has the Applicant already been subjected to Serious Harm (as defined in Regulation 2(1) (Regulation 5(2)' and the applicant contends that the respondent answered that question with an error at law which said error has allegedly infected the entirety of the decision so as to entitle the applicant for an order of certiorari.

10 8. The relevant paragraph of the decision that is attacked states as follows:

"However, in accordance with Regulation 2(1), non-State actors can only be considered to be actors of serious harm if it can be demonstrated that the State, or parties or organisations controlling a State or a substantial part of the territory of that State, are unable or unwilling to provide protection against serious harm."

"the State are unable or unwilling to provide the protection against the treatment allegedly suffered by the applicant and therefore, the alleged inflictors of this treatment cannot be considered to be "actors of serious harm" within the meaning of Regulation 2(1).As serious harm can only be carried out by "actors of serious harm" within the meaning of Regulation 2(1), I do not find any evidence that the applicant has suffered treatment in her country of origin that would come within the definition of "serious harm" as defined in Regulation 2(1)." [Emphasis added].

It has not been demonstrated that:-

11 9. S.I. 518 of 2006, the European Communities (Eligibility for Protection) Regulations 2006 has as its purpose to implement Council Directive 2004/83/EC of 29^th April, 2004 on the minimum standards for the qualification of status of third country nationals or Stateless persons as refugees or as persons who otherwise need internal protection.

12 10. Regulation 2(1) of S.I. 518 (the Definition Regulation) "actors of persecution of serous harm" are stated to be:-

a "(a) A State;

13 (b) Parties or organisations controlling a State or a substantial part of the territory of that State, or

14 (c) non-State actors, if it can be demonstrated that the actors mentioned in paragraphs (a) and (b), including international organisations, are unable or unwilling to provide protection against persecution or serious harm…"

15 11. "Person eligible for subsidiary protection" is stated to mean a person:

16 a "(a) who is not a national of a Member State;

(b) who does not qualify as a refugee;

17 (c) in respect of whom substantial grounds are being shown for believing that the person concerned, if returned to his or her country of origin, would face a real risk of suffering serious harm as defined in these Regulations;

(d) [not applicable]

18 (e) is unable or, owing to such risk, unwilling to avail himself or herself of the protection of that country."

19 12. "Serious harm" is stated to consist of:

a "(a) Death penalty or execution;

20 (b) torture of inhuman or degrading treatment or punishment of an applicant in the country of origin, or

21 (c) serious and individual threats to a civilian's life or person by reason of indiscriminate violence in situations of international or internal armed conflict."

22 13. Regulation 2(2) provides:

"A word or expression that is used in these Regulations and is also used in the Council Directive shall have in these Regulations the same meaning as it has in the Council Directive unless the contrary intention appears."

23 14. It should be stated that identical definitions of the above matters are contained in the Directive. The essential difference, however, which may be of relevance, is that these definitions are in the Statutory Instrument contained in the definition section, whereas in the Directive, they are defined in the body of the text under chapter headings entitled Chapter 2 'Assessment of Applications for Internal Protection' ("Actors of Persecution or Serious Harm") or Chapter 5 'Qualification for Subsidiary Protection' ("Serious Harm"). The Directive further states at Article 18, "Member States shall grant subsidiary protection status to a third country national or a Stateless person eligible for subsidiary protection in accordance with Chapters II and V". There is no corresponding Regulation in the Irish Statutory Instrument which is unfortunate but it is clear that the Minister must assess applications in accordance with Regulations 5 - 15 of the Irish Statutory Instrument.

24 15. The term "actors of persecution or serious harm" appears in the interpretation section only, not to reappear again in the substantial portion of the Statutory Instrument or indeed to be mentioned therein. The term "serious harm" does reappear regularly in the body of the Regulations. It is nowhere stated in the Regulation that "serious harm" must be perpetrated by "actors of persecution or serious harm". The Minister in his decision, however, stated:-

"As serious harm can only be carried out by 'actors of serious harm' within the meaning of Regulation 2(1), I do not find any evidence that the applicant has suffered treatment in her country of origin that would come within the definition of 'serious harm' as defined in Regulation 2(1)."

25 16. Counsel for the respondent, Ms. Nuala Butler, S.C., has cogently urged that we must look at the decision as a whole and that the decision to refuse subsidiary protection is based upon a careful analysis as is required by Regulation 5 of the Statutory Instrument of matters to be taken into account by a protection decision maker including all relevant facts in the country of origin, their laws and regulations, the statements and documents provided by the applicant, the personal circumstances of the applicant. The respondent commenced this analysis with the following question:-

"Whether substantial grounds have been shown for believing that the applicant, if returned to Nigeria, would face a real risk of suffer and torture,...