N (S) [Uganda] v Min for Justice

JurisdictionIreland
JudgeMr. Justice Hogan
Judgment Date27 July 2011
Neutral Citation[2011] IEHC 451
CourtHigh Court
Date27 July 2011

[2011] IEHC 451

THE HIGH COURT

[No. 952 J.R./2010]
N (S) [Uganda] v Min for Justice

BETWEEN

SN (UGANDA)
APPLICANT

AND

MINISTER FOR JUSTICE, EQUALITY AND LAW REFORM
RESPONDENT

EUROPEAN COMMUNITIES (SUBSIDIARY PROTECTION) REGS SI 518/2006 ART 5(1)

EUROPEAN COMMUNITIES (SUBSIDIARY PROTECTION) REGS SI 518/2006 ART 5(2)

K (S)(ETHIOPIA) v REFUGEE APPEALS TRIBUNAL & MIN FOR JUSTICE UNREP HOGAN 7.7.2011 2011 IEHC 301

EUROPEAN COMMUNITIES (SUBSIDIARY PROTECTION) REGS SI 518/2006 ART 2(1)

EEC DIR 2004/38

AYDIN SALAHADIN ABDULLA 2010 ECR I-1493

EEC DIR 2004/38 ART 4(4)

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

EEC DIR 2004/38 ART 14(1)(A)

EEC DIR 2004/38 ART 14(2)

EEC DIR 2004/38 ART 16

EUROPEAN COMMUNITIES ACT 1972 S3(2)

PAMBA v MIN FOR JUSTICE UNREP COOKE 19.5.2009 [TRANSCRIPT UNAVAILABLE]

MEADOWS v MIN FOR JUSTICE 2010 2 IR 701

IMMIGRATION LAW

Subsidiary protection

Judicial review - Certiorari - Eligibility for subsidiary protection - Serious harm - Compelling reasons - Consistency of injuries - Whether applicant suffered serious harm - Whether injuries consistent with applicant's account - Whether medical reports strongly suggested applicant was a victim of intentional infliction of injuries - Whether respondent required to consider eligibility for subsidiary protection based on serious harm alone - Whether regulations included counter-exception proviso - Whether respondent fully considered regulations - Whether respondent considered counter-exception proviso - Whether respondent considered whether repatriation would reinforce negative impressions of applicant as a result of traumas - Whether regulations went further than requirement pursuant to European Union directive - SK v Minister for Justice [2011] IEHC 301 (Unrep, Hogan J, 7/7/2011) - MST v Minister for Justice [2009] IEHC 529 (Unrep, Cooke J, 4/12/2009) approved - European Communities (Subsidiary Protection) Regulations 2006 (SI 518/2006), arts 2(1), 5(1) & 5(2) - Council Directive 2004/38/EC - Decision quashed (2010/952JR - Hogan J - 27/7/2011) [2011] IEHC 451

N(S) v Minister for Justice, Equality and Law Reform

Facts The applicant sought an order of certiorari quashing the decision of the respondent refusing her application for subsidiary protection. The applicant submitted that the respondent's decisions contravened Articles 5(1) and 5(2) of the European Communities (Subsidiary Protection) Regulations 2006. More specifically the applicant submitted that the respondent failed to consider and state a conclusion on the claim made by the applicant that she had suffered serious harm and that there were compelling reasons as evidenced by the reports on her medical condition which made her eligible for protection on the basis of previous serious harm alone. The applicant's claim for asylum was refused by the Refugee Appeals Tribunal on the basis of credibility issues and on the ground that the Country of Origin information did not support a claim of future persecution. The respondent's decision to refuse subsidiary protection resulted from a consideration of whether the applicant would face a real risk of torture or inhuman or degrading treatment if returned to Uganda and whether she could avail of State protection. Having considered those issues, the respondent concluded that State protection was available and also that the applicant had the option of internal relocation. The respondent also noted that the RAT had concluded it was impossible to say how the applicant had sustained various injuries and illnesses. The applicant had complained of being beaten, raped and burned and she submitted medical reports in support of her application (Spirasi reports) which concluded that the applicant's injuries were consistent with her version of events.

Held by Hogan J. in quashing the respondent's decision and remitting the matter to the respondent for fresh consideration in light of this judgment: That it was undeniable that the applicant had at some stage suffered 'serious harm' in the ordinary sense of that term and the Spirasi reports strongly suggested that the applicant was the victim of the intentional infliction of injury by another person(s). The European Communities (Subsidiary Protection) Regulations 2006 were designed to transpose the Qualification Directive 2004/38/EC. Article 5(2) of the 2006 Regulations mirrored Article 4(4) of the Directive but went somewhat further by providing that "compelling reasons arising out of previous persecution or serious harm alone may nevertheless warrant a determination that the applicant is eligible for protection".

Consequently, the respondent's task when considering the application for subsidiary protection was threefold. First, the respondent was obliged to consider whether the applicant had suffered "serious harm" in the past. If the answer to the first question was in the affirmative then the respondent was required to contemplate whether there were good reasons to consider that such persecution or serous harm would not be repeated should the applicant be returned to Uganda. If that question was affirmative, the respondent was nonetheless required to consider whether there were compelling reasons arising out of previous persecution or serious harm alone such as might nevertheless warrant a determination that the applicant was eligible for protection. The respondent appeared to reach no firm view on whether the applicant suffered serious harm in the special sense of the Regulations, namely at the hands of State actors. The respondent also failed to consider whether the occurrence of serious harm alone gave rise to compelling reasons for granting subsidiary protection.

MST v Minister for Justice, Equality and Law Reform [2009] IEHC 529 followed.

Reporter: L.O'S.

1

1. This application for judicial review presents a difficult question of statutory interpretation arising from the European Communities (Subsidiary Protection) Regulations 2006 ( SI No. 518 of 2006)("the 2006 Regulations"). Leave to apply was granted by this Court (Cooke J.) on one single ground, namely, whether the Minister's decision to refuse to grant the applicant subsidiary protection contravened Article 5(1) and Article 5(2) of the 2006 Regulations:

"by failing to consider and state a conclusion on the claim made by the applicant in the application for subsidiary protection that she had suffered serious harm and that there were compelling reasons as evidenced by the reports on her medical condition which made her eligible for protection on the basis of previous serious harm alone."

2

2. The application arises in this way. The applicant, Ms. SN., is a 52 year old Ugandan national who contends that she was kidnapped by a rebel group, the Lord's Resistance Army ("the LRA"), in the region of Goulo. During this period she claims was held as a captive and forced to cook and collect firewood for the rebels. She was not, however, physically ill-treated during this period.

3

3. After about a month later the rebels' camp was attacked by government forces and the applicant was taken by those forces. The applicant was then detained for the best part of ten months. She was says that she was kept in degrading conditions, with little food and sanitation. She claims that she was regularly beaten, raped and burned with melted plastic on many occasions. She further contends that this was done by members who sought to interrogate her with regard to knowledge of the rebels, as they suspected her of complicity with those groups. She managed to escape in November, 2004 and ultimately arrived in Ireland in a traumatized state where she applied for asylum. Yet the account is not without its discrepancies. The applicant is not, for example, in a position to say how she escaped from custody or how she came to travel from Uganda to Ireland. She surmises that her escape must have been organized by her son, yet it is unclear how he could have known her precise whereabouts as (on her account) she was held captive by Ugandan troops in a "safe house" in Kampala.

4

4. Ms. SN was subject to a comprehensive medical examination by two distinguished and experienced physicians at the Centre for the Care of Survivors of Torture. In their Spirasi report of 29 th August, 2005 ("the 2005 Spirasi report") they concluded that the hyper-pigmentation and irregular pigmentation was consistent with burn injuries and the pouring of scalding water on her lower abdomen. They also found that her injuries were "consistent" with her contentions that her breasts had been burnt and scarred and, furthermore, that her other parts of her body had multiple scars and lacerations which were consistent with repeated beatings and burns. As if her plight was not bad enough, she has now been diagnosed with HIV which, it would appear, she contracted following the repeated sexual assaults.

5

5. I should pause here to observe that the use of the term "consistent" is something of a term of art in this context. As I ventured to suggest in a recent judgment on this theme, K. v. Minister for Justice, Equality and Law Reform [2011] IEHC 301:-

"The terminology used in medico-legal reports of this kind dealing with persons who contend that they have been victims of torture is something of a term of art having regard in particular to the internationally accepted guidelines contained at paragraph 187 of the Istanbul Protocol (1999). For my part, however, I would interpret Ms. K.'s medico-legal report as saying that her symptoms are simply consistent with her account, i.e., in line with paragraph 187(b) of the Protocol:-"

"the lesion could have been caused by the trauma described, but it is non-specific and there are many other possible causes."

6

6. As it happens, another examining physician from the...

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