Ireland - High Court, 1 March 2012, J.T.M. v Minister for Justice and Equality, Ireland and the Attorney General,[2012] IEHC 99

Country of Decision:
Country of Applicant:
Date of Decision:
01-03-2012
Citation:
[2012] IEHC 99
Additional Citation:
2010 No. 1492 J.R.
Court Name:
High Court (Cross J)
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Headnote: 

This was the substantive hearing of a case in which leave to seek judicial review of a subsidiary protection decision was granted on the basis that (a) it was arguably erroneous to conclude 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;" and (b) The decision failed 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. The Applicant was successful on both grounds and the decision was quashed by the Court.

Facts: 

The Applicant was a Nigerian woman who applied for asylum and subsequently for subsidiary protection. 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 torture at the hands of her husband and his associates, which left scars on her body and which continued to traumatise her. Her credibility was not in doubt. She was refused asylum because internal protection was found to be available to her.

The decision-maker in the challenged subsidiary protection decision found that the Applicant had not suffered “serious harm” because the harm was required to have been carried out by “actors of serious harm” in order for it to meet the definition of “serious harm”. In this case, no evidence was found that those who had inflicted the injuries were “actors of serious harm”.

The decision-maker did not consider whether compelling reasons existed to warrant a determination that she was eligible for subsidiary protection under a power which Ireland legislated for in addition to the terms of the parent Directive when transposing it.

Decision & Reasoning: 

The decision-maker in the challenged decision considered that previous “serious harm” was defined by reference to what constituted “actors of serious harm,” and found that non-State actors can only be considered to be “actors of serious harm” if it can be demonstrated that the State, or those controlling the relevant portion of it, are unable or unwilling to offer protection. Because the Applicant had not shown that this was the case, there was no evidence that the Applicant had suffered treatment which came within this definition of “serious harm” in Nigeria.

Because the Directive sets out factors to be taken into consideration by the decision maker before granting subsidiary protection, the Court held that neither the Directive nor the transposing legislation dictated that "serious harm" be defined in a way that it must only have been carried out by “actors of serious harm.” The Court held that the definition of “actors of serious harm” may be relevant to a determination without it necessarily excluding from protection a person who suffered serious harm by an actor falling outside of that definition. However, the Court accepted that the fact of serious harm being inflicted by an actor outside of the definition of “actors of serious harm” may impact on whether an Applicant is unable or owing to such risk unwilling to avail themselves of the protection of that country.

 

The Respondent contended that the incorrect definition would not impact on the decision because the Applicant had failed to demonstrate that she could not avail of either State protection or relocation given that the abuse and torture she suffered from was carried on by her husband and his associates. The Court disagreed with the Respondent’s submission on the basis that the Irish law allows for a person to be granted subsidiary protection where compelling reasons arising out of pervious serious harm alone may warrant the granting of protection, and the decision-maker could not have considered this issue having already failed to identify any previous serious harm at all on foot of the incorrect definition attributed to the term “serious harm”.

The Court also held that the erroneous definition of "serious harm" may have infected the assessment of the facts and circumstances under the Irish regulations transposing Article 4 of the Qualification Directive, such as the consideration of the statements of the Applicant as to whether she has been or may be subjected to persecution or serious harm or the personal circumstances of the Applicant in establishing whether she could be exposed to what would amount to "serious harm".

Outcome: 

The application for judicial review of the subsidiary protection decision was granted on both grounds for which leave had been previously granted, and the contested decision was quashed.

Observations/Comments: 

The paragraph at issue in this decision which refers to previous “serious harm” being defined by it having been inflicted by “actors of serious harm,” was upheld as correct in law in the subsequent case of W.A. [DRC] v Minister for Justice and Equality & Ors. [2012] IEHC 251. However, the facts of the W.A. case differed considerably to those before the Court in J.T.M., where the nexus between the definition and the conclusion reached was the true issue and the effect of impugned definition was different. The differences in the two cases was noted in the subsequent case of N.N. [Cameroon] v Minister for Justice and Equality & Ors. [2012] IEHC 499 – where the definition in W.A. [DRC] was preferred.