M (J T) v Minister for Justice and Others

JurisdictionIreland
JudgeMr. Justice Hogan
Judgment Date11 October 2011
Neutral Citation[2011] IEHC 393
CourtHigh Court
Date11 October 2011

[2011] IEHC 393

THE HIGH COURT

[No. 1492 J.R./2010]
M (J T) v Min For Justice
IN THE MATTER OF S.I. 518 OF 2006 IN THE IMMIGRATION ACT 1999, AND THE REFUGEE ACT 1996

BETWEEN

J.T.M.
APPLICANT

AND

MINISTER FOR JUSTICE, EQUALITY AND LAW REFORM
RESPONDENT

ILLEGAL IMMIGRANTS (TRAFFICKING) ACT 2000 S5

EUROPEAN COMMUNITIES (ELIGIBILITY FOR PROTECTION) REGULATIONS 2006 SI 518/2006 S2(1)

EUROPEAN COMMUNITIES (ELIGIBILITY FOR PROTECTION) REGULATIONS 2006 SI 518/2006 S2(1)(B)

EUROPEAN COMMUNITIES (ELIGIBILITY FOR PROTECTION) REGULATIONS 2006 SI 518/2006 S5(1)(C)

EUROPEAN COMMUNITIES (ELIGIBILITY FOR PROTECTION) REGULATIONS 2006 SI 518/2006 S2(1)(C)

INTERPRETATION ACT 2005 S20

INTERPRETATION ACT 2005 S2

BUPA (IRELAND) LTD v HEALTH INSURANCE AUTHORITY 2009 IRLM 81

INTERPRETATION ACT 2005 S20(1)

EEC DIR 2004/83 ART 6

EEC DIR 2004/83 ART 7

EEC DIR 2004/83 ART 7(2)

EEC DIR 2004/83 ART 2

MAHER v BORD PLEANALA 1998 2 ILRM 198

PFEIFFER & ORS v DEUTSCHES ROTES KREUZ KREISVERBAND WALDSHUT EV 2005 ICR 1307 2004 ECR I-8835 2005 1 CMLR 44 2005 IRLR 137

ALBATROSS FEEDS LTD v MIN FOR AGRICULTURE & FOOD 2007 1 IR 221

ENVIRONMENTAL PROTECTION AGENCY v NEIPHIN TRADING LTD UNREP EDWARDS 3.3.2011 2011 IEHC 67

CONSTITUTION ART 40.3.2

EUROPEAN CONVENTION ON HUMAN RIGHTS & FUNDAMENTAL FREEDOMS ART 3

O (M E) v MIN FOR JUSTICE UNREP HIGH 25.9.2011 [TRANSCRIPT UNAVAILABLE]

D v UK 1997 24 EHRR 423

IMMIGRATION LAW

Subsidiary protection

Serious harm - Interpretation - Transpose EU Directive - Adequacy of medical treatment - Subsidiary protection refused - Finding by respondent serious harm could only be carried out by actors of serious harm - Whether substantial ground to grant leave - Argument applicant would not secure adequate medical treatment in Nigeria - Whether substantial ground to grant leave - Bupa (Ireland) v HIA [2008] IESC 42, [2009] 1 ILRM 81; Albatros Feeds Ltd v Minister for Agriculture [2006] IESC 51, [2007] 1 IR 221 and Pfeiffer v Deutsches Rotes Kreuz (Cases C-397/01 to C-403/01), [2004] ECR I-8835 applied - Maher v An Bord Pleanála [1999] 2 ILRM 198; Environmental Protection Agency v Neiphin Trading Ltd. [2011] IEHC 67, [2011] 2 IR 575; O(ME) v Minister for Justice, Equality and Law Reform, (Unrep, Hogan J, 25/9/2011) and D v United Kingdom (1997) 24 EHRR 423 approved - European Communities (Eligibility for Protection) Regulations 2006 (SI 518/2006), regs 2 and 5 - Illegal Immigrants (Trafficking) Act 2000 (No 29), s 5 - Interpretation Act 2005 (No 23), ss 2 and 20 - European Convention on Human Rights 1950, art 3 - Council Directive 2004/83/EC, arts 6 and 7 - Constitution of Ireland 1937, art 40 - Leave granted on one ground (2010/1492JR - Hogan J - 11/10/2011) [2011] IEHC 393

M(JT) v Minister for Justice, Equality and Law Reform

Facts The applicant had sought subsidiary protection on the grounds that she had been the victim of inhuman or degrading treatment relating to a fertility ritual in Nigeria. The applicant as a result had run away and eventually had reached Ireland where she made an application for asylum. The Refugee Appeal Tribunal had rejected the claim on the basis that the persecution in question could be successfully avoided by availing of an internal relocation option. The Minister had affirmed the decision. In addition the applicant suffered from sickle cell disease and it was contended that appropriate treatment would not be available in the country of origin. The Minister had rejected the claim for subsidiary protection on the basis that although she had suffered serious harm at the hands of non-State actors, she would have to go further and show that the Nigerian state was unable to afford her effective protection.

Held by Hogan J in leave in respect of one of the grounds. The Minister had proceeded on the assumption that the reference to "serious harm" in the European Communities (Eligibility for Protection) Regulations 2006 had to be read and understood by reference to the term "actors of serious harm", as that latter term was defined in the same definitional Regulation. It was clear from Regulation 5(1)(c) of the 2006 Regulations that the issue was whether the applicant has been subjected to "serious harm". Had it been intended that an applicant for subsidiary protection must show that the serious harm complained of was also perpetrated by a State actor, this should have been made clear in the Regulations. The applicant had clearly demonstrated that the existence of substantial grounds to challenge the decision of the Minister in this regard. The country of origin information suggested that access to treatment for sickle cell disease was a realistic option in Nigeria and leave would be refused in respect of this ground.

Reporter: R.F.

1

1. Is it sufficient for an applicant for subsidiary protection to demonstrate that the he or she has been the victim of inhuman or degrading treatment? Or must the applicant also show that the inhuman and degrading treatment has been carried out either by agents of the State or by non-State actors where that State is unable to give effective protection under its own policing and legal systems? This is one of the principal issues which arises in this application for leave to apply for judicial review pursuant to s. 5 of the Illegal Immigrants (Trafficking) Act 2000 ("the 2000 Act"). The other issue raised by this case concerns the availability of appropriate medical treatment for the applicant were she to be returned to Nigeria.

2

2. The applicant, Ms. M., a Nigerian national, seeks to quash a decision of the Minister as notified to her by letter of 29 th October, 2010, to refuse subsidiary protection. Ms. M. contends that at the age of 16 she was forced into an arranged marriage. It is not in dispute that she suffers from sickle cell disease and she maintains that she is infertile as a result. She contends that after some four years of marriage, her husband's attitude to her began to change and that he physically abused her because she could not have children.

3

3. Ms. M. says that in view of her infertility, her husband approached a traditional healer who apparently ordered a special ritual in the forest which lasted for several days. A goat was sacrificed and the healer made a traditional herbal medicine. Ms. M. was held down on the ground in a hut, cuts were made on her wrists and abdomen and the "medicine" was apparently rubbed into these cuts. She was apparently given concoctions to drink, mixed with alcohol and the blood of a live goat. She then says that she was raped and forcibly subjected to sexual relations with the traditional healer, her husband and some other men who were participating in the ceremony. She further says that she was subject to ritualistic incisions on her abdominal area with the claw marks of an animal.

4

4. Ms. M. says that she became pregnant soon after the ritual but that she lost the pregnancy. Her husband then announced he was planning another ritual, at which point Ms. M. decided to run away and returned to her parent's house. Her parents apparently sided with her husband and when her husband subsequently returned to collect her, an altercation took place. Ms. M. says that she then packed her belongings, ran away first to a neighbour's house and then - at the neighbour's suggestion - to Benin City, the home of the neighbour's nephew. Ms. M. says that she did not realise that this individual was a human trafficker who arranged a false passport and identity and actually accompanied Ms. M. to Europe flying to Dublin via Lagos and London.

5

5. Ms. M. insists that it was only after she arrived here in November, 2006 that she realised that she was being brought to Ireland to work as a prostitute. She says that she managed to escape from the car from which she was being transported from the airport and fled into Heuston Station. She says that she then approached an African man who ultimately directed her to the Department of Justice whereupon she sought asylum.

6

6. Ms. M. says that she was unsafe in Benin City because it was only one hour away from her husband's village. While she accepts that Benin City has a very sizable population - perhaps somewhere between three to four million inhabitants - Ms. M nevertheless maintained that she would not be safe there. It was only an hour away from her husband's village and both her husband and her family were determined that she should return to him. Besides, the neighbour's nephew also emphasised to her that she was not safe and that she should travel with him to Europe.

The decision of the Refugee Appeals Tribunal
7

7. Ms. M.'s asylum application was ultimately rejected by the Refugee Appeal Tribunal on 27 th May, 2008. Although that decision has not been challenged in these proceedings, it is important to draw attention to the basis for that decision. While the Tribunal member does not appear to have made any express findings in respect of the abuse claims advanced by Ms. M., she nonetheless rejected the asylum claim on the basis that the persecution in question could be successfully avoided by availing of an internal relocation option.

Dr. Gillar's Report
8

8. Dr. Joan Giller prepared a medical report in April, 2010 for submission to the Minister in aid of Ms. M.'s application for subsidiary protection. The report recounted the background claims of Ms. M. and Dr. Giller expressly stated that she was using the Istanbul Protocol in the course of her report. Dr. Giller concluded that:-

"The scars on Ms. M's abdomen are made in an ordered pattern, which is highly consistent with her description of having been made by ritual incisions. The scars on her wrists are highly consistent with having been made with a sharp pointed object."

9

9. The conclusions of...

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