HIGH COURT N & Anor -v- MJELRJudgment delivered on April 24th, 2008, by Mr Justice Charleton.
JUDGMENT
The primary focus for an application for subsidiary protection is the situation in the applicant's country of origin, which must be such that he or she cannot safely return to any substantial part of it.
BACKGROUND
The case concerned a number of Nigerian asylum-seekers who had failed in their application for asylum. At the end of the process they were asked if they were seeking protection under the EU Subsidiary Protection Directive, which had been incorporated into Irish law in 2006. They responded that they were and made representations, but their applications for subsidiary protection were rejected by the Minister.
It was argued on their behalf that the Minister should have applied the case law of the superior courts applicable to refusals of refugee law, and not that relating to his discretionary power to give leave to remain in Ireland on humanitarian grounds.
Counsel for the Minister argued that this was an administrative measure and the essential question to be decided was whether conditions in the applicants' country of origin were such as to require the State to offer them subsidiary protection.
Mr Justice Charleton said that each case must be considered in the light of its specific facts.
One of the applicants, Ms N, said her family wanted her to be the head of an occult shrine and have her daughter subjected to genital mutilation.
She claimed to have been threatened by shrine and family members, but not by the Nigerian authorities, and stated also that she had been subjected to genital mutilation, which was widespread among her particular group.
Following the rejection of her application and the making of a request for subsidiary protection, N's solicitors wrote to the Minister with country of origin information and medical reports indicating she was distressed and depressed. Medical reports also showed a healed fracture consistent with her claims of physical abuse.
She argued that adequate medical treatment was not available for her in Nigeria.
A second applicant, Ms Em, claimed she had been brought to Italy on the basis of a promise that she would get work in a factory.
Before her departure she was induced to make an oath at a pagan shrine that she would not run away and that she would repay her travel expenses.
In Italy, she said she was forced to take another such oath, and agree to pay the woman €60,000. She claimed she was also tortured until she agreed to work as a prostitute.
She eventually ran away and travelled to Austria, thence to Dublin via Belfast.
A third woman, Ms O, claimed she had also been forced to work in Italy as a prostitute by a Nigerian woman. However, she said a client helped her escape and come to Ireland.
In all cases the Refugee Applications Commissioner and the Refugee Appeals Tribunal did not find the accounts credible.
"The court is not, in these judicial review applications, entitled to put itself in the shoes of the decider of fact and substitute its own assessment as to credibility for that already arrived at," Mr Justice Charleton said.
The applicants claimed they had a right to subsidiary protection under Irish and European law and that this was not a discretionary matter for the Minister.
DECISION
Mr Justice Charleton examined in detail the council directive and regulations.
"The principle of protection contained in the regulations is against human action. It is not against illness or natural disaster," he said. "Threats of the most serious kind to life or person can occur through individual criminal activity or gang warfare. That can happen in Ireland or in Nigeria."
However, international protection could only be afforded in situations of armed conflict or where there was such a breakdown of society that there could be no attempt at law enforcement.
Deciding on subsidiary protection, therefore, required an examination of the situation in the country of origin and the personal circumstances of the applicant.
There was an obligation on a person seeking international protection to look first to the authorities in their own country for protection.
He defined the basis for entitlement to subsidiary protection as follows:
1. No substantial part of the applicant's country of origin was capable or providing them reasonable protection;
2. A substantial part of this country could offer such protection, but the conditions there were such that the applicant could not reasonably be expected to relocate there;
3. An applicant is likely to suffer a real risk of being executed other than in accordance with due process of law, for a crime not normally considered to allow for the imposition of the death penalty;
4. A person is likely to suffer a real risk or torture or inhuman or degrading treatment from the state authorities, or from a source from which the state authorities would be unwilling or unable to protect him.
The situation in the country of origin of an applicant was critical to a decision on subsidiary protection, he said. The applicants had argued that the Minister relied on country of origin information that was not made known to them and where they were not allowed to make submissions on it.
Although the applicants could offer their own country of origin information, there was no obligation on the Minister to enter into correspondence about it.
Where the facts used as a basis for subsidiary protection were the same as those used to argue for refugee status, the Minister was entitled to rely on the assessment of those facts.
However, where fresh information was brought forward it must be given fair and reasoned consideration.
Referring to these specific applicants, Mr Justice Charleton said that Em and O did not complain to the police in Italy about having been tricked into prostitution, nor did they return to Nigeria to assist the authorities there in bringing to justice the people who had tricked them.
According to the country of origin information, there was nothing to stop them returning to Nigeria and living quietly in another part of the country.
In relation to N, he said that she could seek protection in the very large part of Nigeria which forbids female genital mutilation. There was nothing to suggest that the state was going to discriminate against her because of her depression.
The applicants had not brought forward any substantial new material for consideration by the Minister.
They therefore were not entitled to judicial review of the Minister's decision to refuse them subsidiary protection.
The full text of this judgment is available on www.courts.ie
Solicitors: Synnott and Co and Seán Mulvihill and Co, Cork, for the applicants; Robert Barron SC, Patrick O'Reilly BL, Denise Brett BL for the Chief State Solicitor's office