Judgment Title: N. -v- MJELR
Composition of Court:
Judgment by: Hogan J.
Status of Judgment: Approved
Neutral Citation Number:  IEHC 451
THE HIGH COURT
2010 952 JR
MINISTER FOR JUSTICE, EQUALITY AND LAW REFORM
JUDGMENT of Mr. Justice Hogan delivered on 27th July , 2011
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:
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. 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 29th 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. 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  IEHC 301:-
“the lesion could have been caused by the trauma described, but it is non-specific and there are many other possible causes.”
7. In its decision of 27th May, 2009, the Refugee Appeal Tribunal noted that these medical reports “can only go so far to say that these are consistent with injury in the manner alleged”, while observing that the use of this term “does not rule out these injuries having been caused by a potential variety of other causes.” Having referred to some discrepancies in the applicant’s account, the Tribunal member concluded:
The SPIRASI report does not go so far as to say that this applicant was tortured. I note above again the reference to ‘consistent’. Even if I were in a position to conclude that this applicant had suffered past persecution, the country of origin information does not support a claim that this applicant will face persecution for a Convention reason if returned to her country of origin. I simply cannot therefore conclude that this applicant has disclosed a reasonable likelihood of persecution for a Convention reason….”
9. In his decision of April, 2010 the Minister concluded that the applicant was not entitled to subsidiary protection. The net question for consideration was succinctly stated thus:-
14. Pausing at this point before examining the Regulations, it is undeniable that, at some stage in the past, the applicant has suffered “serious harm” in the ordinary sense of that term. One cannot, I think, understand the 2005 Spirasi report as doing other than accepting that, at some point in her life, Ms. K. has been subjected to extensive burn injuries, lacerations and the pouring of scalding water on her lower abdomen. Of course, the authors of the 2005 Spirasi report 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.
15. As we have already noted, the use of the term “consistent” in the Spirasi report implies that these injuries could have been caused in the manner alleged, but it is also important to recall that, in the language of paragraph 187(b) of the Istanbul Protocol:
17. It is against that background that we may now consider the 2006 Regulations.
The 2006 Regulations
(b) parties or organisations controlling a state or a substantial part of the territory of that state, or
(c) non-state actors, if it can be demonstrated that the actors mentioned in paragraphs (a) and (b), including international organisations, are unable or unwilling to provide protection against persecution or serious harm.”
22. In the light of the findings of the 2005 Spirasi report, Ms. N. plainly suffered “serious harm” within the meaning of Article 2(1)(b) since, by any standards, the treatment she endured at the hands of some person in some circumstances was inhuman and degrading. The 2005 Spirasi report leaves open the question of whether this was at the hands of State actors in the manner alleged.
23. The 2006 Regulations are, of course, designed to transpose the Qualification Directive 2004/38/EC (“the 2004 Directive”). As the Court of Justice made clear (at para. 52 of its judgment) in Cases C-175/08 et seq., Aydin Salahadin Abdulla  ECR I-1493:-
The decision in MST v. Minister for Justice, Equality and Law Reform
28. Cooke J. summarised the issues thus:-
(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?”
(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.”
30. As indicated above, subsidiary protection is accorded to someone who is not a refugee but is nevertheless in need of international protection. A person is eligible only when, if required to return to the country of origin he or she would “face a risk of serious harm”. The risk of serious harm is thus one which is faced only on return to the country of origin. The person must be unable or, owing to that risk, be unwilling to avail of protection in the country of origin. If the meaning of the expression “person eligible for subsidiary protection” is read into the additional wording, the phrase becomes something of a non-sequitur: - “compelling reasons arising out of previous serious harm alone may nevertheless warrant a determination that the applicant is a person who, if returned to his or her country of origin, would face a real risk of suffering serious harm”. If, however, on return, there is no danger of the previous serious harm being repeated, as the criteria of the common parts of the two provisions appear to envisage, it is difficult to understand in what would lie the real risk of serious harm upon return.
31. That there must be a continuing real risk of further or other serious harm upon return when eligibility is recognised, is reaffirmed by the wording of Regulation 14 (1) (a) and (2) (transposing Article 16) which provide that subsidiary protection may be revoked if the circumstances which led to its grant ceased to exist or have changed to such a degree that international protection is no longer required, provided that the change of circumstances is “of such significant and non-temporary nature that the person no longer faces a real risk of serious harm”.
32. Notwithstanding the difficulties presented by the additional wording, there cannot be any doubt, in the Court’s view, that the additional wording can only be construed as intending to permit some limited extension to the conditions of eligibility prescribed in Article 4(4) designed to allow some latitude in according subsidiary protection based exclusively upon the fact of previous serious harm when it is accompanied by compelling reasons. It is relevant to bear in mind that “serious harm” is defined as including “inhuman or degrading treatment”….It is possible therefore to envisage a situation in which an applicant had escaped from an incident of mass murder, genocide or ethnic cleansing in a particular locality. 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 might still be such as to give rise to compelling reasons 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.
33. The Court is accordingly satisfied that the additional wording does have some limited effect in extending the possible scope of application of Article 4(4). In particular, the wording appears to be designed to grant some latitude to the Minister to recognise eligibility for subsidiary protection in a case of proven previous serious harm giving rise to compelling reasons for according international protection notwithstanding the fact that there may exist some doubt as to the likelihood of risk of repetition of that previous serious harm.”
32. It was otherwise - or, least, potentially so - so far as the “second incident” involving the burglary and house break-in was concerned:-
53. What is important for present purposes, however, is that the potential significance of the “second incident” as a matter of fact does not appear to have been taken into consideration in the analysis that led to the Minister’s refusal. Whether or not the evidence in its entirety constitutes a basis for proof of the fact of “previous serious harm” is primarily a matter which must be dealt with by the protection decision maker in the first instance as is the assessment as to whether the fact is accompanied by “compelling reasons”. Although this is obviously a difficult and perhaps borderline case, the Court is satisfied that these applicants might be judged eligible for subsidiary protection if the “second incident” was considered as part of the “previous serious harm” on the basis that it involved inhuman or degrading treatment. It should be emphasised that the Court is not now deciding that this is a case in which the fact of such previous serious harm has been proved. It is deciding only that, having regard to the apparent absence of consideration of the “second incident” in the analysis upon which the refusal was based, it would be open to the protection decision maker upon a reconsideration of all of that information to reach a different conclusion.
54. It is possibly unnecessary to point out that while such a reconsideration involves an appraisal of past events so far as concerns the fact of previous serious harm, the test for a determination of eligibility for subsidiary protection remains a forward looking one. Thus, upon a reconsideration of the application, the appraisal of the ‘compelling reasons’ will necessarily take account of any changes that have taken place since September 2008 both in relation to the progress made in the medical treatment of the applicants in this jurisdiction and the prevailing conditions faced by ethnic Serbs in Croatia.”
34. At the same time, as counsel for the Minister, Mr. Donnelly, observed, Article 3 of the 2004 Directive provided that Member States might introduce or retain more favourable international standards for determining who qualifies as a refugee or a person eligible for subsidiary protection, insofar as those additional standards are compatible with the Directive. Effectively, therefore, as Cooke J. pointed out in MST, the counter-exception must be construed as adding to Article 4(4) in a manner which is in ease of the applicant by providing for a more “favourable standard for determining eligibility for protection” and, on this basis, is thus compatible with Article 3.
The Minister’s analysis
36. The task confronting the Minister was a three fold one. He was first required to ask himself whether the applicant had suffered “serious harm” in the past. If the answer to this question was in the affirmative, he was then required to consider whether were good reasons to consider that such persecution or serious harm would not be repeated should the applicant be returned to Uganda. If that question was affirmative (i.e., in the sense that it was considered that the risk of future persecution was small), the Minister was nonetheless required to consider the application of the counter-exception, namely, whether there were compelling reasons arising out of previous persecution or serious harm alone such as might nevertheless warrant a determination that the applicant is eligible for protection.
37. For the reasons I shall now explain, it is necessary for me only to consider the application of the first and third limbs of this test.
38. So far as the first limb of this test is concerned, it seems very likely from the medical evidence that Ms. N. suffered serious harm at some stage in her life in the sense that it was intentionally inflicted by a third party. This serious harm might have been inflicted in the manner which she has alleged, but, in the language of the Istanbul Protocol, there are many other possible causes. The Minister appears to have accepted that the applicant suffered the injuries alleged, but drawing attention to the use of the word “consistent” in its Istanbul Protocol, he took the view that there were many other possible causes for the injuries in question.
39. That might well be, but it still requires the Minister to address the question of whether the applicant did, in fact, suffer serious harm in the special sense of the Regulations, namely, whether the such injuries were inflicted by State actors in the manner alleged. Beyond a reference to the significance to the use of the term “consistent” in the context of the Istanbul Protocol and a later reference to the view of the Tribunal member to the effect that “it was impossible to say how the injuries and illnesses were caused”, the Minister appears to have reached no firm view on this critical question.
40. Putting this another way, if one accepts that another person or persons intentionally inflicted these injuries, then the Minister must grapple with how these injuries were actually caused in the manner indicated by Cooke J. in Pamba v. Minister for Justice, Equality and Law Reform, High Court, 19th May, 2009. Specifically, the Minister must ask whether, in the light of the country of origin information, it is possible that such injuries were inflicted by State actors.
41. In these circumstances, therefore, it must be concluded that the Minister did not fully address his mind to the question of whether Ms. N. suffered “serious harm” in the sense envisaged by Regulation 5(2), Alternatively, it can be said that the reasoning here is defective in the Meadows sense (Meadows v. Minister for Justice, Equality and Law Reform  IESC 3,  2 IR 701) in that the reasons for the conclusion on whether Ms. N. had in fact suffered serious harm in this sense is not sufficiently clear.
42. So far as the third limb of the test is concerned, it is plain from the decision in MST that the potential application of the counter-exception in Regulation 5(2) must also be considered. This means that if the Minister is satisfied that there is no reason for considering that the previous serious harm will now be repeated, he must nonetheless consider, in the words of Cooke J., whether the “historic serious harm may be such that the fact of its occurrence alone gives rise to compelling reasons for recognising eligibility.” In this context, it should be recalled that the second Spirasi letter expressed the view that the forced repatriation of the applicant to Uganda “would serve only to reinforce the negative impressions that she has developed since her traumas.”
43. The evaluation of this evidence and the consideration of this counter-exception is, of course, entirely a matter for the Minister in the first instance. But consider it he must. Yet an examination of the file does not disclose that the Minister ever gave any consideration to the counter-exception in the original decision. This is a further reason why the decision cannot be allowed to stand.