Judgment Title: T. & Anor -v- MJELR
Composition of Court:
Judgment by: Cooke J.
Status of Judgment: Approved
Neutral Citation Number:  IEHC 529
THE HIGH COURT
2008 1215 JR
M. S. T. AND J. T. (A MINOR SUING BY HER MOTHER AND NEXT FRIEND M. S. T.)
MINISTER FOR JUSTICE, EQUALITY & LAW REFORM
(1) Breach of Regulation 5 (1) (b) of the 2006 Regulations in the failure of have regard in assessing the facts of the case to the medical evidence and reports and particularly to the report of Ray Clarke of 21st January, 2008;
(2) Breach of Regulation 5 (1) (c) in failing to have regard to the particular circumstances of the second named applicant as a minor and victim of past assault and serious harm in the light of the medical evidence;
(3) Breach of Regulation 5 (2) by failing to consider whether the evidence of previous serious harm was alone sufficient to warrant the grant of subsidiary protection;
(4) Breach of Regulation 5 (1) (b) by failing to take account of country of origin information;
(5) The conclusion as to the availability of State protection to the applicants from persecution is irrational, unreasonable and perverse in the light of country of origin information as to the absence of an effective legal system for the detection, prosecution and punishment of acts of serious harm;
(6) Extraneous and irrelevant factors were considered and the Minister misunderstood or misconstrued the application; and
(7) The appropriate level of scrutiny was not exercised.
14. While the grounds for leave can be thus paraphrased, it is fair to say that the central thrust of the case as argued to the Court has turned upon the interpretation of Regulation 5 (2) to the effect that “compelling reasons arising out of previous … serious harm alone may … warrant a determination that the applicant is eligible for protection” combined with the alleged failure of the Minister as a “protection decision maker” (see Regulation 3 (1) (d)) to consider and investigate information given by the first named applicant as recorded in a psychiatric report of Ray Clarke on 21st January, 2008, relating to a break-in at the applicant’s house at night by three masked men. It is submitted that this statement constituted evidence of “previous serious harm” which alone would have warranted the grant of protection and that the Minister had failed to consider it. It is emphasised that while other medical reports and documentation submitted had been itemised as considered in the analysis note of the Contested Decision, the report of 21st January, 2008 is nowhere referred to in the Minister’s file.
“(b) the relevant statements and documentation presented by the protection applicant including information on whether he or she has been or maybe subject to persecution or serious harm; and
(c) the individual position and personal circumstances of the protection applicant, including factors such as background, gender and age, so as to assess whether, on the basis of the applicant’s personal circumstances, the acts to which the applicant has been or could be exposed would amount to persecution or serious harm….”
16. The application for subsidiary protection had been made, as already mentioned, by the applicant’s solicitors by letter of 23rd November, 2006. With that letter they submitted a body of country of origin information and further documents. The latter included reports of Dr. Helen Greally of 30th June, 2006 on both mother and daughter, a letter from the Health Service Executive relating to the first named applicant and a psychiatric report of Dr. Ann Doherty of 9th November, 2006, on the mother. The reports of Dr. Greally record the accounts given by J. of the treatment she received in school and of the treatment which both received at the hands of neighbours during their period of living in Croatia. The report on J. records:
“J. is an eight year old child who lived in Croatia with her mother for a period of ten or eleven months. She appears to have been significantly traumatised by this experience and her experience with her classmates will give significant cause for concern. ... The changes in behaviour as described by Ms. T. and J. and confirmed by J. herself, indicates that she suffers from extreme trauma due to her experience in school. ... In view of this it is the view of the writer that J. is unable to sustain being returned to Croatia at this time and serious consideration should be given, in terms of protecting her psychological welfare, that she should be allowed to remain living in Ireland.”
17. The psychological report of Dr. Ray Clarke was furnished to the Minister under cover of a letter of 25th January, 2008 in which it was said “having regard to the contents of the report there are clearly compelling reasons arising from our clients current mental health condition, her status as a minor and the serious harm she has previously suffered in Croatia for granting her subsidiary protection”.
“The second incident was a break-in into their house during the night time by three men in masks, carrying weapons – one a gun, who threatened Ms. T.’s life and demanded money. They reportedly stole nothing whilst breaking much of the furniture in the house and shouting names at Mrs. T. which apart from identifying her ethnic background and what might happen to her as a result, were obscenely reductive in form and content. Mrs. T. reported that during this terrifying ordeal that J. was screaming, crying and in a foetal position at times or kneeling on the floor. After the event they stayed at home for long periods of time out of fear and that J. clung to her and cried on a regular basis and developed eneuresis and was always fearful. These responses were reinforced by less traumatic, but worrying events that took place every now and then.”
19. The central submission made to the Court on the basis of this report is as follows. This account of the “second incident” of a night time break-in to the house by armed men constituted evidence of previous serious harm for the purpose of Regulation 5 (2). There was therefore a duty on the Minister to consider it as such. That fact, combined with the report on the medical condition of the applicants and on J. in particular, constituted “compelling reasons” warranting a determination that they were both eligible for protection but which the Minister has failed to consider.
(a) Is Regulation 5 (2) when compared with the wording of the Directive which it implements, to be interpreted in the sense thus contended for namely, that a single previous incident of serious harm can alone constitute a basis of eligibility for subsidiary protection if it gives rise to “compelling reasons”?
(b) If it is to be so interpreted, does that provision constitute an addition to the terms of the directive and, if so, was it one which was intra vires the power of the Minister to make under s. 3 of the European Communities Act 1972?
(c) If the provision is a lawful addition, was the Minister obliged to treat the reference to the second incident in that medical report as evidence on behalf of the applicants of previous serious harm? and
(d) If so, does that evidence amount to proof of “serious harm” if taken on its own or in conjunction with the other evidence contained in the applicants’ asylum claim?
The interpretation of Regulation 5 (2)
“…minimum standards for the qualification and status of third country nationals or stateless persons as refugees or as persons who otherwise need international protection and the content of the protection granted.”
Its minimum standards apply both for the purpose of identifying persons entitled to be declared to be refugees under the Geneva Convention and for the purpose of the complementary form of international protection to be called “subsidiary protection status”.
The provisions of the Regulations
(For ease of readability, citations from the 2006 Regulations and from the Qualifications Directive set out hereunder omit quoting provisions not immediately relevant to the present case such as the references to persecution, refugee status, stateless persons and to regulations or articles not applicable in the present case.)
Regulation 2 (1) “A person eligible for subsidiary protection” means a person –
(b) who does not qualify as a refugee,
(c) in respect of whom substantial grounds have been 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) is unable, or, owing to such risk, unwilling to avail himself or herself of the protection of that country;
(b) the individual position and personal circumstances of the protection applicant, including factors such as background, gender and age, so as to assess whether, on the basis of the applicant’s personal circumstances, the acts to which the applicant has been or could be exposed would amount to persecution or serious harm;
25. Similarly, the corresponding provisions of the Qualifications Directive which are relevant are as follows:
Article 2 (e) “person eligible for subsidiary protection” means a third country national … who does not qualify as a refugee but in respect of whom substantial grounds have been 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 article 15… and who is unable, or, owing to such risk, unwilling to avail himself or herself of the protection of that country;”
“Assessment of facts and circumstances”
“The assessment of an application for international protection is to be carried out on an individual basis and includes taking into account:
(b) The relevant statements and documentation presented by the applicant including information on whether the applicant has been or may be the subject to persecution or serious harm;
(c) The individual position and personal circumstances of the applicant, including factors such as background, gender and age, so as to assess whether, on the basis of the applicant’s personal circumstances, the acts to which the applicant has been or could be exposed would amount to persecution or serious harm;”
26. As is immediately apparent, Regulation 5(2) has the object and effect of transposing article 4.4 of the Directive but does so with the addition of the words upon which the applicants now rely (hereafter referred to as ‘the additional wording”,) and which are not used in the Directive namely, “… but compelling reasons arising out of previous … serious harm alone may nevertheless warrant a determination that the applicant is eligible for protection.”
(i) A claim to face a real risk of suffering serious harm must be regarded as having substantial grounds if the applicant establishes as a fact that he or she has already been subject to serious harm or to direct threats of such harm;
(ii) The claim need not, however, be so regarded if there are good reasons to consider that such serious harm or threats will not be repeated.
29. The ordinary meaning of the additional wording appears to be that, what might be called a “counter-exception” to para (ii) above is created to the effect that, even if there is no reason for considering that the previous serious harm will now be repeated, the historic serious harm may be such that the fact of its occurrence alone gives rise to compelling reasons for recognising eligibility. While that appears to be the ordinary meaning of the additional wording it is not immediately clear how it is to be given effect in the context of the concept of subsidiary protection.
- it arouses fear, anguish or inferiority capable of breaking an individual’s morale and physical resistance;
- it must attain a minimum level of severity but this level is relative and depends on the circumstances of the case including the treatment duration, its physical and mental effects and on the sex, age and state of health of the victim;
- it is also relevant to consider whether the objective of the treatment was to humiliate and debase the victim although the absence of such a purpose does not mean a treatment fails to come within the prohibition.
44. The events relied upon as constituting proof of having suffered previous inhuman or degrading treatment occurred in the period following the applicants’ return to Croatia from Switzerland in November 2003 until they left to come to Ireland in September 2004. The applicant described the hatred that existed between Croats and Serbs upon her return. She said:
“It is submitted that the ill-treatment alleged by the applicants has not amounted to torture and inhuman or degrading treatment, however undesirable the alleged ill-treatment. It is further submitted that the foregoing country of origin information illustrates that state protection is available in Croatia.”
The writer further concludes:
“I have considered this information and find that on the basis of the applicant’s personal circumstances, there is nothing to suggest that the acts which the applicant has been or could be exposed to would amount to serious harm.”
49. It is therefore clear that the Minister’s refusal decision is based upon an appraisal of the events relied upon by the applicant (other than the “second incident” in the Clarke report) and that a conclusion is reached to the effect that: i) the historic incidents did not constitute previous serious harm; and, ii) that the return of the applicants to Croatia in the circumstances now prevailing and in the light of their personal circumstances and medical condition, would not itself expose them to renewed or further serious harm. It is also clear that this conclusion was reached on the basis that serious harm included inhuman or degrading treatment.