The High Court granted J. T. M. leave to seek judicial review of the Minister’s refusal of subsidiary protection, finding substantial grounds to challenge the Minister’s approach to alleged serious harm by non-state actors. It refused leave on her separate argument about access to sickle cell treatment in Nigeria.
The judgment, delivered by Mr Justice Hogan on 11 October 2011, concerns an application under section 5 of the Illegal Immigrants (Trafficking) Act 2000. The applicant sought to quash a refusal notified to her on 29 October 2010. The court did not decide the judicial review itself or determine whether she should receive subsidiary protection.
The applicant, a Nigerian national, said she had been forced into an arranged marriage at 16 and later suffered physical abuse and a ritual involving cuts, sexual violence and animal claw marks. The Minister accepted that she had suffered serious physical injury. A medical report described abdominal scars as highly consistent with ritual incisions, and the judge noted that photographs corroborated her account of extensive lacerations.
The Minister’s decision was based on the view that alleged perpetrators who were not state actors could count as actors of serious harm only if the Nigerian state was unable or unwilling to protect her. Justice Hogan said the applicant had been subjected to inhuman and degrading treatment, but left open the difficult question of whether the 2006 regulations required her also to show that the state could not protect her. He said the wording of the regulations raised substantial grounds for challenging the refusal and granted leave on that issue.
The judgment noted that the Refugee Appeals Tribunal had rejected the applicant’s asylum claim in 2008 on the basis that she could avoid persecution through internal relocation. That decision was not challenged in these proceedings, and the Tribunal had made no express findings on her abuse claims.
On the medical-treatment issue, the applicant argued that she would not obtain adequate care for sickle cell disease if returned to Nigeria. The judge accepted that treatment there would be inferior to care available in Ireland, but said the country information indicated that treatment and blood transfusions were realistically accessible. He refused leave on this ground, finding the case did not fall within the exceptional category where return would expose a person to a grave medical outcome.