High Court dismisses judicial review of asylum decision where past persecution alone does not suffice for protection.

[2016] IEHC 112

THE HIGH COURT

JUDICIAL REVIEW

[2013 No. 558 J.R.]

BETWEEN

S.I.

APPLICANT

AND

MINISTER FOR JUSTICE AND EQUALITY,

THE REFUGEE APPEALS TRIBUNAL,

IRELAND AND THE ATTORNEY GENERAL

RESPONDENTS

JUDGMENT of Mr. Justice Richard Humphreys delivered on the 15th day of February, 2016

1. The applicant was born in Nigeria in the early 1970s although she says she is unaware of her date of birth. She claims she

encountered difficulties following the death of her husband, whereby in accordance with tribal customs, his brother sought to marry

her.

2. In 2003, she came to Ireland. She states that she was “trafficked” here, although there is nothing to suggest that the trafficking

was done without her consent. “Trafficking” in this context means by reason of an arrangement made with third parties. Applicants

tend to refer to such third parties as “agents” unless of course they are claiming victimisation at the hands of such persons, in which

case (and only in which case, as here) these persons are referred to as “traffickers”. In reality, virtually all asylum seekers are

trafficked. “Agent” is an unacceptable and rhetorical term which seeks to normalise and thereby impliedly excuse a trade which seeks

to undermine the immigration control system on an industrial scale.

3. The applicant, as I have mentioned, claims that she was victimised (or as her counsel puts it, “duped”) in the context of having

arranged to be trafficked to Ireland. She contends that on arrival she was required to perform domestic service and child-minding for

a five year period without pay. As the applicant’s story unfolded, this claim appeared to take on dimensions beyond non-payment of

wages and, as presented by her counsel, involved a claim of domestic servitude, false imprisonment and forced labour.

4. Despite looking after particular children for five years she was unable to state their names, a matter about which the Refugee

Applications Commissioner was not altogether satisfied judging from contributions made on the commissioner’s behalf at the tribunal

hearing. The details of the alleged false imprisonment (“not allowed to leave the house” according to her counsel) and servitude in so

far as they are set out on the papers are skeletal, almost to the point of invisibility.

5. On 4th January, 2013, she applied for asylum. That application was rejected by the Refugee Applications Commissioner by decision

dated 8th February, 2013.

6. She then appealed to the Refugee Appeals Tribunal. The tribunal member, Mr. Conor Gallagher, B.L., rejected her appeal in a

decision dated 2nd July, 2013.

7. This application for leave for judicial review, which is to be telescoped with the substantive hearing, is brought within time.

8. During the hearing before me, Mr. Michael Lynn, S.C., (who appeared with Mr. Paul O’Shea, B.L., who also addressed the court) for

the applicant applied for an amendment to ground (c) in order to incorporate certain points she wished to advance in all submissions.

This was granted on consent, and I appreciate the practical approach taken to the matter by Mr. Simon Boyle, S.C. (with Mr. Nap

Keeling, B.L.) who appeared for the respondents.

Was the assessment of internal relocation contrary to reg. 7 of the 2000 regulations and art. 8 of the qualification

directive?

9. Mr. Lynn submitted that the assessment of internal relocation was flawed and contrary to reg. 7 of the European Communities

(Eligibility for Protection) Regulations 2006 (S.I. 518 of 2006), and art. 8 of Directive 2004/83/EC (the qualification directive).

10. He complained firstly that the commissioner held that internal relocation may be unduly harsh (para. 3.3.2 of the commissioner’s

decision) whereas the tribunal found that internal relocation was available. In relation to this point, I have held in M.N. v. Refugee

Appeals Tribunal [2015] IEHC 831 that a tribunal which itself provides an effective remedy against a lower body may nonetheless

significantly alter the decision made (para. 23). The appeal to the tribunal is a complete rehearing (see M.A.R.A. (Nigeria) v. Minister

for Justice and Equality [2014] IESC 71), and accordingly, the tribunal can vary the decision of the commissioner adversely to the

applicant and resuscitate issues decided in the applicant’s favour at that level.

11. Secondly, Mr. Lynn complains that the discussion of internal relocation fails to comply with reg. 7 and art. 8 because it fails to

consider the personal circumstances of the applicant. However, the tribunal member provides a reasonably detailed decision in relation

to internal relocation and has clearly considered the relevant circumstances including the personal circumstances of the applicant,

even to the extent that acknowledging that internal relocation would give rise to a challenge for her. The existence of such a

challenge is not in itself and in the absence of other factors a basis for concluding that internal relocation is not available.

12. Next, Mr. Lynn sought to advance an argument that under the UNHCR Guidelines on International Protection on Internal Flight or

Relocation, 23rd July, 2013, para. 34, the decision maker bears the burden of proof on internal relocation and it is up to the party

asserting the availability of such relocation to establish the area concerned and to provide “evidence” that it is a reasonable

alternative. He says that the tribunal has not referred to any “positive evidence” to show that internal relocation is an option.

13. Even if the UNHCR guidelines were binding, the decision is not flawed within those guidelines, because the tribunal does not say

that the burden of proof is on the applicant. It says that there is no evidence to show that internal relocation is not an option.

14. More fundamentally, the UNHCR guidelines are not a legal instrument. If there were an ambiguity in any particular instrument of

Irish law which was intended to give effect to an international convention, such as the 1951 Refugee Convention, a court might have

regard to that convention or international instruments relevant to it in order to assist informing a view on resolving the ambiguity.

However, in this case, there is no relevant ambiguity in the 2006 regulations of the kind that could be resolved by reference to the

UNHCR guidelines of 2003. To grant relief to the applicant on the basis of the guidelines would be to give those guidelines a legal

status which they do not enjoy and do not purport to have. It is clear on the face of the guidelines that they are intended simply to

assist decision makers rather than to purport to provide a definitive interpretation of the Convention or fundamental principles of

international law.

15. In particular, under the heading of this argument, Mr. Lynn complains that the need for treatment for the applicant’s HIV should

have been dealt with in the context of internal relocation, by examining what level of treatment is available and where. It seems to

me that this is an attempt to rewrite the decision in a manner favourable to the applicant. It is a matter for the tribunal to assess the

personal circumstances of the applicant in accordance with reg. 5(1)(c) of the 2006 regulations. The case made on her behalf before

the tribunal was essentially that by reason of her illiteracy, trafficked status, HIV, and status as a single woman, she could not

relocate to anywhere within Nigeria. On its face, this is an entirely unsustainable proposition. There are clearly numerous individuals

falling into one or more of these categories who are capable of locating within Nigeria. The applicant did not make the case that HIV

treatment was only available in limited parts of Nigeria. In D. v. the United Kingdom, Application No. 30240/96, 2nd May, 1997, the

European Court of Human Rights held that only because of the seriousness of his condition, i.e. that he was near death, and had no

one in his home territory of St. Kitt's to care for him, that expulsion was contrary to art. 3 of the ECHR. More recently, in N. v. the

United Kingdom, Application No. 26565/05, 27th May, 2008, it was held that to expel a person with HIV, who is receiving treatment

and will likely not receive such treatment once expelled is not a breach of art. 3. The Grand Chamber in that case also set out a

detailed discussion of the Strasbourg caselaw on the expulsion of seriously ill persons since D. (see paras. 32-41). The court found

that the principle in D. has been consistently applied in the intervening years (para. 42). In the absence of exceptional

circumstances, “[a]liens who are subject to expulsion cannot in principle claim any entitlement to remain in the territory of a

Contracting State in order to continue to benefit from medical, social or other forms of assistance and services provided by the

expelling State. The fact that the applicant’s circumstances, including his life expectancy, would be significantly reduced if he were

to be removed from the Contracting State is not sufficient in itself to give rise to breach of Article 3”.

16. The argument that the applicant could not relocate to the original village because she was trafficked from there does not appear

to have been made to the tribunal, and in any event, is lacking in any factual basis. Mr. Lynn suggested that this may had been

because the money for the trafficking was not paid and she feared reprisals, but this is pure speculation, has not been grounded, still

less established, in evidence and in any event seems unlikely. People-traffickers would not be expected to carry out work in the

absence of advance payment. The mere fact that the applicant was “trafficked” from her village does not establish that it would be

unreasonable to expect her to return there. The incident whereby she arranged to be brought to Ireland, and then found herself

involved what she said was domestic servitude here, is not on its face a matter likely to be repeated.

17. In any event, given that there was also a finding of an absence of a well-founded fear of persecution, the decision in relation to

internal flight (if infirm, which I do not accept) could be severed, provided of course that the decision on well-founded fear was itself

valid.

Is there a contradiction between a finding of no well-founded fear and a consideration of internal relocation?

18. Mr. Lynn submitted that the tribunal found that there was no well-founded fear of persecution, but went on to consider the

question of whether internal relocation was available. The implication of this argument is that this gives rise to a contradiction in the

decision, because on the authority of K.D. (Nigeria) v. Refugee Appeals Tribunal [2013] IEHC 481, per Clark J. at para. 28 “internal

relocation should only be considered if the Tribunal has decided that there is a well-founded fear of persecution”.

19. For reasons more particularly discussed in my decision in M.N. v. Refugee Appeals Tribunal [2015] IEHC 831, I would respectfully

disagree with the judgment of Clark J. in this respect and instead follow the judgments of MacEochaidh J. in E.I. v. Minister for Justice

and Equality [2014] IEHC 27, and Faherty J. in A.N. v. Refugee Appeals Tribunal [2015] IEHC 699. As a matter of general first

principles, a decision-maker has an option, having found against an applicant on one decisive ground, to either say nothing further, or

alternatively to move on to consider one or more alternative decisive grounds. In the asylum context, this can be referred to as an

“even if I am wrong about the absence of a well-founded fear” basis, although of course the decision maker does not have to

specifically use the phrase “even if I am wrong” or any similar phrase. If there is a flaw in the reasoning in relation to any one or more

of the alternative decisive grounds, as discussed in M.N. the overall decision will be allowed stand if it is supported by at least one

valid ground capable of independently justifying the outcome, and of course provided that the case is not an exceptional one were a

particular error is capable of contaminating the result overall.

20. Therefore there was nothing wrong with the tribunal going on to consider internal relocation, having previously found that there

was no objective well-founded fear of persecution. Such consideration did not contradict the earlier finding or imply that it was

incorrect.

Was the finding of an absence of objective well-founded fear incoherent and unreasonable?

21. The tribunal member found that the subjective fear of persecution related to essentially religious or magical techniques being used

against her (“spiritual or traditional” means). He said that by the nature of things these were not objectively verifiable. This approach

is obviously correct.

22. The best that Mr. Lynn can do in criticising it is to contend that the applicant’s claim was wider than spiritual means, and included

fears in the physical sense. He referred to her questionnaire at question 47, where she said “you wouldn’t know when they would

come and attack you”, and question 51, that her persecutors “can kill me or make me to run mad”. These extremely vague and

nebulous statements are essentially valueless in the asylum context. They are so non-specific and meaningless as to fail to reach the

level whereby they would need to be addressed narratively by the decision maker or indeed the level whereby even the most

expansive view of any shared duty on the tribunal would trigger an obligation to inquire further.

Did the tribunal act unlawfully in failing to apply the rider to reg. 5(2) of the 2006 regulations in relation to serious harm?

23. Regulation 5(2) of the 2006 regulations provides that the fact that an applicant has already being subject to persecution or

serious harm, or threats of such, is a serious indication of a well-founded fear in the absence of good reason of the contrary. So far,

so uncontroversial. However the final clause of that paragraph goes on to say: “but compelling reasons arising out of previous

persecution or serious harm alone may nevertheless warrant a determination that the applicant is eligible for protection”.

24. This phrase was described as a “counter-exception” by Cooke J. in M.S.T. v. Minister for Justice, Equality and Law Reform [2009]

IEHC 529 (at para. 29). However, it is unclear to me how the phrase “counter-exception” got off the ground in this context, given

that a counter-exception is an exception to an exception, and that reg. 5(2) does not contain either an exception or a counter-

exception. It contains a rule regarding inferring a need for protection, and an additional rider which contains an extended ground on

which a need for protection may arise for an applicant.

25. Hogan J. in S.N. v. Minister for Justice, Equality and Law Reform [2011] IEHC 451 describes it as a “proviso” (para. 25), although

a proviso is a separate provision, normally beginning with the words “provided that”, the effect of which “is to narrow the effect of

the preceding words” (F. Bennion, Statutory Interpretation, 4th ed. (London, 2002), p. 616). In this case, the formula extends the

meaning of the preceding words.

26. Cross J. in J.T.M. v. Minister for Justice and Equality [2012] IEHC 99 described the final clause of reg. 5(2) as “an added tail”. It

could also be referred to as a “rider” or “final clause”.

27. In M.S.T. v. Minister for Justice Equality and Law Reform [2009] IEHC 529, Cooke J. on the one hand said 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”

(para. 32); but on the other hand that “[t]he words to not give rise to a new entitlement as such. They merely allow the protection

decision-maker the facility in a case of compelling reasons, to determine eligibility as established without being obliged to be fully

satisfied that the harm runs a risk of being repeated” (para. 34). It is not altogether easy to reconcile these two perspectives. The

latter element of his analysis was relied on by Clark J. in N.N. v. Minister for Justice and Equality [2012] IEHC 499 and Charleton J. in

Fr. M. v. Minister for Justice Equality and Law Reform [2008] IEHC 107.

Does the “serious harm” element of the rider to reg. 5(2) apply only in the subsidiary protection context?

28. The first issue to be considered in relation to the rider is whether, as a matter of statutory interpretation the tribunal in an asylum

case has to consider compelling reasons arising out of previous persecution only, or such persecution and serious harm.

29. It is clear from the 2006 regulations that they are intended to cover two quite different forms of decision; decisions by the

commissioner and tribunal in relation to asylum, and decisions by the Minister in relation to subsidiary protection (see the definition of

“protection” and the definition of “application for protection” in reg. 2(1) of the 2006 regulations).

30. An asylum application deals with persecution by virtue of the Refugee Act 1996, as amended by regs. 9 and 10 of the 2006

regulations. A subsidiary protection application, on the other hand, deals with serious harm as defined in reg. 2(1) of the 2006

regulations.

31. Given the drafting decision to deal with these two forms of application together not just in a single statutory instrument but also

in an intertwined way throughout various individual provisions of the 2006 regulations (a questionable decision, if I may say so, even

despite the fact that the qualification directive deals with both issues, given the potential for the generation of issues such as those

in the present case), a reader of the 2006 regulations must be particularly alive to context, and not assume that every word of the

regulations is intended to apply in full to both asylum and subsidiary protection decisions. On the contrary, it is clear from the very

nature of such decisions that references in the regulations to persecution generally apply only to asylum processes, and references to

“serious harm” as found in the regulations only apply to subsidiary protection decisions. This is for the very obvious reason, if nothing

else, that to require an asylum decision maker to consider serious harm would do away with the need for subsidiary protection

altogether. The very nature of subsidiary protection is to address other forms of serious harm not encompassed within the concept of

persecution under the Refugee Act 1996 and the 1951 Refugee Convention.

32. In my view therefore, it follows that the 2006 regulations are to be construed on the basis that references to “persecution or

serious harm” should be read as references to whichever of those concepts is applicable to the particular type of decision at hand. In

the context of the present case, the tribunal was only required to apply its mind to the question of persecution, and in so far as reg.

5(2) or the rider to it in particular referred to serious harm, this was not a matter that had any relevance to an application for asylum

such as the present one. In my view therefore, the decision of the tribunal cannot be questioned on the ground that it failed to

“address the question of quite serious harm” as contended by the applicant.

33. It is worth noting that shortly after the tribunal decision in this case, a new reg. 5(2) was inserted by reg. 32(2) of the European

Communities (Subsidiary Protection) Regulations 2013 (S.I. No. 46 of 2013) with effect from 14th November, 2013. This definition,

which is now limited to asylum cases, has removed reference to serious harm altogether. This is consistent with the intention of the

drafter to which I have referred, namely insofar as reg. 5(2) concerns asylum matters, only the provisions relating to persecution are

relevant and not those relating to serious harm.

34. While I appreciate that some of the previous case law on reg. 5(2) does not proceed on this basis, that is because the point was

not drawn to the court’s attention in those cases. A point not argued is a point not decided: The State (Quinn) v. Ryan [1965] I.R.

70 per Ó Dálaigh C.J. at p. 120, as cited in numerous cases, e.g., Ó Maicín v. Ireland [2014] IESC 12 per Hardiman J. (dissenting) at

paras. 83 to 84.

Whether there is evidence of serious harm

35. If serious harm had to be considered (a proposition I have rejected), there is in any event no infirmity arising in relation to a

failure to consider serious harm, because there is simply no evidence of serious harm within the meaning of the 2006 regulations,

namely the definition set out in reg. 2(1). “Serious harm” obviously does not enjoy its normal meaning in a context where it has been

specifically defined. The only part of the definition that is potentially relevant is that which refers to “torture or inhuman or degrading

treatment or punishment of an applicant in the country of origin”. There is no evidence that the difficulties experienced by the

applicant, even including what she says is forced servitude in Ireland, come within this definition. That is not to say that, if the

applicant’s story is correct, bringing her to Ireland for the purpose of requiring her to labour on an unpaid basis was not a breach of

her rights. But the definitions of different forms of harm in international human rights law cannot simply be collapsed into one another.

Torture or inhuman or degrading treatment is a particularly high test, as has been noted above in the context of the caselaw on HIV

treatment under the ECHR. Persecution is another distinct category. Trafficking also has distinct features. It is not permissible to

regard any and all forms of human rights violation as interchangeable and as liable to be simply transferred into whichever of these

categories suits the particular argument being made in any individual case. The definitions of particular types of violation have an

integrity that would be entirely diluted and lost in such an impermissible exercise. Even if the applicant’s story is to be believed, it did

not amount to “torture or inhuman or degrading treatment or punishment of an applicant in the country of origin” in such a manner

as to engage the definition of “serious harm” in reg. 2(1).

36. N.B. v. Minister for Justice and Equality [2015] IEHC 267 was a decision in which Faherty J. took the view that the trafficking and

its consequences in that case triggered the rider and therefore amounted to past persecution (see paras. 60 and 64). Mr. Boyle

submitted to me that the parties in that case do not appear to have drawn Faherty J.’s attention to the specific definition of “serious

harm” (which is not referred to in the judgment other than obliquely in a partial reference to it in a quotation from M.S.T. in para. 30

that does not disclose the exhaustive nature of it). While that appears to be the case, my reading of para. 60 of the decision is that

Faherty J. is of the view that the trafficking in that case amounted to persecution rather than serious harm, so there was no

particular need for her to have considered the definition of the latter expression. Furthermore she seems to have proceeded on the

basis that there was past persecution in that case which therefore would have been capable of triggering the rider, an issue to be

discussed below. I do not read N.B. as a decision to the effect that in every case, trafficking would automatically amount to

persecution.

37. Servitude and forced labour are self evidently significant human rights violations. However, they do not amount to torture or

inhuman or degrading treatment or punishment as a matter of course. They may do in particular circumstances but to hold that they

automatically do would, for example, collapse the distinction between arts. 3, 4 and 5 of the ECHR.

38. Furthermore, it is clear from the definition of “serious harm” that it only relates to serious harm in the country of origin. Whatever

treatment an applicant receives in any other state is not serious harm within this definition.

Does the rider have to be considered in every case or merely where persecution has been found?

39. We now come to what is really the core of the present case. Mr. Lynn submits that the rider to reg. 5(2) is a key part of the test

for protection, and therefore needs to be considered in every asylum case and not merely in a case where persecution has been

found.

40. To address this issue it is necessary to go back to the detailed analysis of reg. 5(2) carried out by Hogan J. in S.N. Without quite

comparing the doctrine of precedent to Chinese whispers, it seems to me that some of the small print of his analysis has not

altogether survived in later iterations. The really critical aspect of Hogan J.’s decision emerges from para. 36, the context being that

what was in issue was a subsidiary protection decision, so the question was firstly whether the applicant had suffered serious harm in

the past. It is only, as Hogan J. puts it, “if the answer to this question was in the affirmative” that the decision maker need go on to

consider whether such matters would not be repeated; and only “[i]f that question was affirmative”, would the obligation arise to

consider the question of compelling reasons arising out of past persecution or serious harm in accordance with the rider. In other

words, the application of the rider is predicated on an original finding of persecution or serious harm (as the case may be, I might take

the liberty of adding).

41. I might respectfully suggest that this analysis is entirely in keeping with the structure and wording of the regulation. The rider by

its terms does not apply unless there are “compelling reasons arising out of previous persecution or serious harm alone”, which

obviously presupposes and requires a finding that there has been previous persecution or serious harm, as the case may be. It can

have no relevance to a case where there is no such finding.

42. In subsequent case law, however, the qualification that the rider does not arise in the absence of a finding of persecution in the

first instance has been somewhat elided.

43. In K.B. v. Minister for Justice, Equality and Law Reform [2013] IEHC 169, Mac Eochaidh J. comments at para. 13 that even if

there are no facts which would warrant deploying the rider, the failure to consider it would be fatal to the decision. Reliance was

placed on the decision of Hogan J. in S.N. in this regard. Mr. Boyle submits that this observation is obiter because in K.B., such facts

did exist, and therefore it was not necessary for the court to go on to comment on a situation where such facts were absent. I would

accept this submission.

44. Mr. Boyle also submits that the obiter comment expressed at para. 13 of K.B. is in fact in conflict with S.N. which clearly

recognises the necessity for a prior determination of persecution or serious harm. Such a determination simply could not be made if

there were no facts warranting the consideration of the rider to reg. 5(2). In view of the structure and wording of reg. 5(2) I am

driven to accept the submission that there is a conflict between S.N. and the obiter comments in K.B. in this respect, and for the

reasons set out, I prefer the analysis in S.N. If there are no facts to warrant the deployment of the rider to reg. 5(2), the decision

maker cannot be faulted for failure to consider it narratively.

45. Having preferred S.N. to K.B. in this respect, for the reasons stated, I am required also to follow that decision in preference to the

reliance on K.B. in N.B., albeit that the quotation in the latter case was obiter seeing as Faherty J. considered that there was in fact

past persecution in N.B. I should mention for completeness that it is not clear whether Eagar J. relied on this particular analysis in

M.M. (Zimbabwe) v. Refugee Appeals Tribunal [2015] IEHC 325 and may, like Faherty J. in N.B., simply have taken the view that there

was past persecution in that case.

46. While Mr. Lynn also relies on the Canadian judgment of Viafar v. Minister for Citizenship and Immigration [2006] F.C. 1526

(Dorson J.), at para. 6, where it is stated that all grounds for an asylum claim must be considered even if not raised by the applicant,

and on the “shared duty” as between the tribunal and applicant, which would require the tribunal to consider the rider of its own

motion, I consider that the approach in S.N. is a more satisfactory one as no purpose can be served by considering the rider in the

absence of reasons to think it would bring anything to the table. Mr. Boyle describes the approach urged by the applicant as a “box-

ticking exercise” and I would respectfully agree. A failure to engage in such an exercise is not a basis for quashing a decision that

deals reasonably with facts that are in reality central to the actual case.

Was there past persecution such as to require narrative consideration of the rider to reg. 5(2)?

47. Mr. Lynn submitted that there was in fact past persecution in this case, consisting of two elements. Firstly, there is her story in

relation to difficulties in Nigeria, and the witchcraft threatened against her there. Secondly, there is her claim of being trafficked to

Ireland and being required to engage in unpaid labour.

48. As regards the claim of persecution by family members through witchcraft and the like, the tribunal member held, as I have

already pointed out, that this fear was not objectively well-founded. As set out earlier in this judgment, not only was that decision

not irrational, it was clearly correct.

49. The second leg of Mr. Lynn’s argument was that the trafficking and alleged servitude amounted to persecution within the meaning

of the Convention which itself is a springboard for deploying the rider to reg. 5(2) and therefore quashing the decision for failure to

give narrative consideration to that rider. I will leave aside for the moment whether this servitude actually occurred in the manner

alleged.

50. “Persecution” is not defined in the 2006 regulations, but as Hogan J. said in S.N. at para. 33, the provisions of the regulations

“must nonetheless be interpreted in a manner compatible with the Directive itself” (speaking in the context of interpreting the rider

generally rather than solely the term “persecution” within that rider).

51. The term “persecution” is not defined specifically in the qualification directive either. Mr. Lynn urges me, in effect, to apply the

definition of “acts of persecution” in art. 9 of that directive. That provision makes reference to acts which amount to “a severe

violation of basic human rights”, or other human rights violations which are sufficiently severe as to affect an individual in a similar

manner. He submits that the trafficking and servitude of the applicant constitutes acts of persecution within this definition and the

fact that this conduct took largely place in Ireland is immaterial.

52. However, to equate “acts of persecution” with “persecution” would be to give effect to only a partial and distorted interpretation

of the directive. It would be to put forward an extremely wide definition of persecution, shorn of necessary qualifications required by

the directive. In particular, the directive also defines “actors of persecution or serious harm” in art. 6, thereby implying that only acts

of persecution committed by actors of persecution come within the definition of “persecution” for the purposes of international

protection.

53. While the definition of “actors of persecution” is expressed to be inclusive of the categories specified, those categories include all

state actors and all non-state actors that meet the condition that the state is not providing effective protection, there are only a

limited number of other actors that could be included (e.g., intervening states acting within the territory of the state of origin) unless

the condition applying to non-state actors was to be set aside. This would seem to me to do violence to the purpose of the

qualification directive.

54. In the present case, the actor of persecution is alleged to be the woman who allegedly required the applicant to engage in unpaid

labour. She is, of course, a non-state actor. Thus, under art. 6(c) of the directive, she qualifies as an actor of persecution if the

State is “unable or unwilling to provide protection against persecution or serious harm as defined in Article 7”, unless some clear

basis exists to disregard this qualification, which I cannot see in the present case even if, in principle, such disregard were possible.

55. Therefore, in order to find that the experiences of the applicant in Ireland amount to persecution, I would have to find that this

State is unable or unwilling to provide her with protection. That is a clearly unsustainable position.

56. Insofar as the applicant is limited under this heading to the complaint in relation to events in Nigeria, she has not shown that

there was evidence before the tribunal which it should have been concluded that the applicant was persecuted there. The applicant

appears to have contended herself with very vague and laconic statements in relation to many of her experiences. There is certainly

an absence of evidence that there was anything involuntary from her departure from Nigeria. In the absence of evidence of matters

reaching the threshold in Nigeria, the necessity to consider the rider to reg. 5(2) simply did not arise.

57. Mr. Lynn relies on the UNHCR guidelines in relation to victims of trafficking (UNHCR, Guidelines on International Protection No. 7:

The Application of Article 1A(2) of the 1951 Convention and/or 1967 Protocol Relating to the Status of Refugees to Victims of

Trafficking and Persons At Risk of Being Trafficked, 7th April, 2006) at para. 15, which suggests that trafficking could amount to

persecution in particular circumstances. However, it is clear even from that document (which itself is of course only a guidance note)

that a quite significant threshold is envisaged before the test for persecution could be met. In this case, there is simply no evidence

of that threshold being met.

58. In any event, the matter should have been clearly put to the tribunal by the applicant. The tribunal member records the

submission made as to the nature of persecution, which clearly does not include any reference to trafficking or domestic servitude.

The claim made to the tribunal relates to the original story of persecution. A court should be reluctant to quash a decision made by

an administrative body, even one subject to a “shared duty”, on the basis of a failure to deal with an argument that was not made,

and certainly not clearly made, to that body.

59. Finally, the tribunal member proceeded on the basis that it was “accepted” that the applicant’s story in relation to trafficking and

servitude was correct. An issue arose at the hearing as to whether this meant it was accepted by the tribunal or by the

commissioner. Given the absence of any discussion of the issue by the tribunal, or any reasons for accepting this account, I infer that

the reference can only mean that the tribunal thought that the claim of servitude was accepted by the commissioner. However, that

finding does not appear to be correct, because, as appears from the decision, the presenting officer queried the fact that the

applicant did not know the names of the children she had been allegedly required to look after for a five-year period.

60. When I asked Mr. Lynn how it could be that the applicant did not know the names of children she had been responsible for on a

daily basis for five years, he suggested that it may have been simply that she was unwilling to name them for fear of reprisals. This is

speculation but in any event appears unlikely given that she made a complaint to the Garda Siochána about the alleged servitude. It

does not, in fact, appear from the decision as to whether or not there was an explanation for her failure to know the names of the

children or indeed for the vague nature of her claims overall in this respect. On the face of it, her inability to provide the children’s

names leaves her story in this respect somewhat open to question. Mr. Lynn submits that I cannot go behind any statement in the

tribunal decision in this regard, even one based on a concession or a mistaken view of the position of the commissioner, as I

understood him to say, although his primary submission was that “accepted” meant accepted by the tribunal rather than the

commissioner. He submits that the court should not take into account the apparent inherent implausibility of the applicant’s story in

the exercise of the discretion attaching to the grant of remedies by way of judicial review. I would not accept any of these

submissions.

61. As a matter of principle, if a party to judicial review proceedings put forward a version of events that was as much of an affront

to common sense as the notion that one could look after the children of a family for five years on a daily basis in the relatively recent

past and be unable to remember their names, without feeling under any obligation to put forward any explanation for this situation,

then a court might, in the exercise of its discretion, consider the absence of an explanation to be a basis for declining to grant any

relief. If it had been necessary to decide the case on this point, I would have given the applicant an opportunity to clarify the

position before making a decision on whether relief should be granted.

62. I would finally observe that the matter of alleged servitude in Ireland did not form part of any finding that this amounted to

persecution and, therefore, was not part of the core decision of the tribunal. It does not appear to me that the Minister is

automatically bound to accept the applicant’s version of events as set out or “accepted” in the tribunal decision in this respect, such

as it is, when considering subsidiary protection or humanitarian leave to remain, and she may consider it appropriate to investigate it

further to see whether it can be substantiated at the very high level (amounting to false imprisonment, forced labour and servitude)

at which that version of events was pitched before me.

Validity of the rider to reg. 5(2)

63. An issue that naturally arises from the foregoing discussion is whether the rider is, in fact, intra vires the European Communities

Act 1972, since it goes beyond the parameters of the qualification directive. While, of course, the rider is “compatible with” the

qualification directive (as Cooke J. held in M.S.T., at para. 36), in the sense that Member States are permitted to adopt “more

favourable standards” than the E.U. minimum (see art. 3 of the directive), it is not “necessitated by” the directive. The recast 2011

qualification directive, which does not apply to Ireland, does however include such a provision (art. 4(4)), but in the absence of any

provision in the original directive corresponding to this rider only reinforces the point that its absence from the original directive means

that it was not necessitated thereby. The basis for it to have been included in the 2006 regulations, under the 1972 Act, is therefore

unclear at best. However, in view of the conclusion I have arrived as to the meaning of the rider, as applied to this case, the

question of validity does not arise. Had it arisen, it might have been necessary to explore whether some form of amicus curiae could

have been put in place to assist the court in this respect, given that neither the applicant nor the State are in a position to contest

the rider’s validity.

64. In S.N., Hogan J. made a spirited attempt to impliedly defend the validity of the rider by construing it as applicable where the past

persecution only provided weak evidence of future persecution, in other words where the future risk was “small” (para. 36). Practical

though this approach is, it is hard to reconcile with the word “alone” in reg. 5(2). Reasons arising from past persecution alone means

reasons not connected with possible future persecution, not reasons only weakly connected with future persecution. It is unclear

whether reg. 5(2) can be saved in the manner suggested in S.N. The same difficulty attaches to Cooke J.’s already-referred to

suggestion that the rider was not intended to extend the ambit of protection. Such an analysis really drains all meaning from the word

“alone” in the rider.

65. An alternative approach to support the validity of the rider was taken by Cooke J. in M.S.T., in holding that the rider was a

legitimate “incidental” or “supplementary” provision within s. 3(2) of the 1972 Act (paras. 37 to 39). Whether that section can or

should be read in such a wide manner does not arise in the present case given my finding that the rider was not, in any event,

contravened.

Order

66. For the foregoing reasons, I will order:-

(i) that leave be granted in accordance with the amended statement of grounds but that substantive relief be refused;

(ii) that the matter be adjourned to enable the parties to consider any consequential applications; and

(iii) that any party intending to make such application should give the other party advance particulars in that regard.