T (M S) & T (J)(A Minor) v Min for Justice

• Jurisdiction: Ireland
• Court: High Court
• Judge: Mr. Justice Cooke
• Judgment Date: 04 December 2009
• Neutral Citation: [2009] IEHC 529
• Docket Number: [No. 1215 J.R./2008]
• Date: 04 December 2009

[2009] IEHC 529

THE HIGH COURT

[No. 1215 J.R./2008]

T (M S) & T (J)(a Minor) v Min for Justice

[2009] IEHC 529

JUDICIAL REVIEW

BETWEEN/

M.S.T. AND J.T. (A MINOR SUING BY HER MOTHER AND NEXT FRIEND M.S.T.)

APPLICANTS

AND

MINISTER FOR JUSTICE, EQUALITY & LAW REFORM

RESPONDENT

REFUGEE ACT 1996 S13

REFUGEE ACT 1996 S12(4)

IMMIGRATION ACT 1999 S3(11)

EUROPEAN COMMUNITIES (ELIGIBILITY FOR PROTECTION) REGS 2006 SI 518/2006 REG 4(2)

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

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

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

EUROPEAN COMMUNITIES (ELIGIBILITY FOR PROTECTION) REGS 2006 SI 518/2006 REG 3(1)(D)

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

EUROPEAN COMMUNITIES ACT 1972 S3

EEC DIR 2004/83 RECITAL 8

EEC DIR 2004/83 ART 3

EEC DIR 2004/83 ART 2(E)

EEC DIR 2004/83 ART 4(3)

EEC DIR 2004/83 ART 4(4)

EEC DIR 2004/83 ART 15

EUROPEAN COMMUNITIES (ELIGIBILITY FOR PROTECTION) REGS 2006 SI 518/2006 REG 14(1)(A)

EUROPEAN COMMUNITIES (ELIGIBILITY FOR PROTECTION) REGS 2006 SI 518/2006 REG 14(2)

EEC DIR 2004/83 ART 16

N (FR) & ORS v MIN FOR JUSTICE & ORS 2009 1 IR 89 2008/45/9787 2008 IEHC 107

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

CONSTITUTION ART 29.4.10

EUROPEAN COMMUNITIES ACT 1972 S3(1)

EUROPEAN COMMUNITIES ACT 1972 S3(2)

MEAGHER v MIN FOR AGRICULTURE & ORS 1994 1 IR 329 1994 1 ILRM 1

EUROPEAN CONVENTION ON HUMAN RIGHTS & FUNDAMENTAL FREEDOMS ART 3

PRETTY v UNITED KINGDOM 2002 35 EHRR 1 2002 2 FLR 45 2002 2 FCR 97

TYRER v UNITED KINGDOM 1979-80 2 EHRR 1

VARAS v SWEDEN 1992 14 EHRR 1

IMMIGRATION

Subsidiary protection

Persecution - Inhuman or degrading treatment - Compelling reasons arising out of previous serious harm - Necessity for international protection - Additional wording in transposition of European directive - Whether ultra vires Minister - Whether compelling reasons arising out of previous serious harm alone may warrant determination that applicant is eligible for protection - Whether likelihood of repetition of serious harm on return necessitated - Whether failure of protection decision maker to consider and investigate relevant material - N v Minister for Justice [2008] IEHC 107, [2009] 1 IR 88 - European Communities (Eligibility for Protection) Regulations 2006 (SI 518/2006), reg 5 - Relief granted (2008/1215JR - Cooke J - 4/12/2009) [2009] IEHC 529

T (MS) & T(J)(an Infant) v Minister for Justice, Equality and Law Reform

Facts the High Court had granted the applicants leave to apply for an order of certiorari by way of judicial review to quash the decision of the respondent refusing their application for subsidiary protection under the European Communities (Eligibility for Protection) Regulations 2006. It was contended, inter alia, that the respondent had failed to consider a medical report which constituted evidence of an incident of previous serious harm for the purposes of reg. 5(2) of the Regulations of 2006 and constituted a compelling reason warranting a determination that they were eligible for subsidiary protection.

Held by Mr. Justice Cooke in granting an order of certiorari that in the ordinary course, where a statutory instrument had been adopted on the basis of s. 3 of the Act of 1972 in order to transpose a Community directive, the Court had to presume, in the absence of explicit wording to contrary effect, that the legislative purpose was to give full and accurate effect to the provisions of the Community measure and no more. Thus, the Regulations of 2006 fell to be construed in the light of the wording and objective of Council Directive 2004/83. Article 4.4 of the Qualifications Directive of 2004 had been fully transposed verbatim by reg. 5 (2) of the Regulations of 2006 and the respondent went further in such transposition by the inclusion of additional wording.

That the additional wording in reg. 5(2) could only be construed as intending to permit some limited extension to the conditions of eligibility prescribed in article 4.4 of the Directive of 2004 and was designed to allow some latitude in according subsidiary protection based exclusively upon the fact of previous serious harm when it was accompanied by compelling reasons. Even if the conditions in the country of origin had so changed that no real risk now existed of those events happening once again, the trauma already suffered could still be such as to give rise to compelling reasons under the Regulations of 2006 for not requiring the applicant to return to the locality of the earlier suffering because the return itself could be so traumatic as to expose the applicant to inhuman or degrading treatment. In that context, there had been an apparent failure to consider the significance of the second incident in the analysis that led to the respondent's refusal.

Reporter: P.C.

JUDGMENT of

Mr. Justice Cooke

1 By order of Finlay Geoghegan J. of 19^th November, 2008, leave was granted to the applicants to bring the present application for, inter alia, an order of certiorari by way of judicial review, to quash the decision of the respondent Minister made on 15^th September, 2008, refusing their application for subsidiary protection under the European Communities (Eligibility for Protection) Regulations 2006 ("the 2006 Regulations").

2 The applicants are mother and daughter and are ethnic Serbs who come from Croatia. They arrived in the State in September, 2004 and applied for asylum. Their passage through the asylum process has been somewhat complex and protracted but can be summarised as follows.

3 The first named applicant was born in what was then Yugoslavia on 30^th September, 1955. In 1991 she went to Switzerland where she lived until 2003. In 1992 she married but claims that she was badly treated by her husband and that the marriage ended in 1994.

4 The second named applicant was born to the first named applicant in 1997 in another relationship. To avoid continuing harassment of herself and her daughter by her husband, the first named applicant returned to Croatia in 2003 to the house where her mother lived. She claims that because they were ethnic Serbs she and her daughter were subjected to violence, threats and intimidation: they were spat upon in the street and their house was attacked and windows broken. In school, J. was bullied and subjected to violence. It is claimed that, as a result, they both still suffer from serious mental health problems.

5 In a section 13 report dated 11^th April, 2005, the Refugee Applications Commissioner considered that the applicants had not established a well founded fear of persecution if returned to Croatia given that the designation of Croatia as a safe country created a presumption against persons being considered refugees from that State. (By order of 15^th November, 2004, made under s. 12 (4) of the Refugee Act 1996(as amended) the Minister had designated Croatia to be a safe country.)

6 While acknowledging that events in Yugoslavia had left a legacy of bitterness between Serbs and Croats leading to harassment and discrimination on both sides, the s. 13 report found that this could not automatically be considered to amount to persecution in the Convention sense. As the first named applicant had only once reported the incidents to the police, it could not be considered that there was an absence of available State protection.

7 That report and its negative recommendation by the Commissioner were appealed to the Refugee Appeals Tribunal. A first appeal decision of 27^th July, 2005, rejected the appeal but was then withdrawn and the appeal was resubmitted to a different Tribunal member who issued a further decision of rejection on 28^th October, 2005. That too, was then withdrawn. A further decision of the Tribunal of 29^th March, 2006, rejected the appeal and reaffirmed the negative recommendation of the Commissioner.

8 Following that rejection, by letter of 25^th April, 2006, the Minister advised the applicants of his proposal to make a deportation order. The letter outlined the options open to the applicants including that of making representations to be permitted to remain temporarily in the State. Deportation orders were made in respect of the applicants on 28^th June, 2006. An application was then made under s. 3 (11) of the 1999 Act to have those orders revoked. Fresh representations were made and additional country of origin information documents were submitted in support of the application. In August 2006 an attempt was made to introduce a new asylum application but that was refused.

9 On 23^rd November, 2006, the applicant's solicitors wrote applying for subsidiary protection for them under the 2006 Regulations and enclosed the relevant forms together with country of origin information documents and medical reports.

10 By letter of 14^th March, 2007, the Minister rejected the application upon the grounds that the 2006 Regulations had come into operation on 10^th October 2006 and did not apply to cases where deportation orders had already been made prior to that date. This decision was challenged by way of judicial review. That proceeding was compromised on terms under which fresh representations were invited from the applicants in support of the subsidiary protection application which the Minister undertook to consider. In response two further medical reports, amongst other documents, were furnished. An additional medical report from a Ray Clarke dated 21^st January, 2008 on the second named applicant was submitted on 28^th January, 2008.

11 By letter of 14^th March, 2008, the Minister exercised his discretion under Regulation 4 (2) of the 2006 Regulations to permit the application for...