Ireland - High Court, 27 June 2008, A.B.O. v Minister for Justice, Equality and Law Reform [2008] IEHC 191

Facts:

The applicant was from Nigeria and sought asylum in Ireland. She claimed that she was Pentecostal Christian who had begun a relationship with a Muslim man who converted to Christianity and to whom she subsequently married. Upon becoming pregnant for a second time her father-in-law, who was a leader in the Muslim community, brought three people to her house and ordered them to beat her, causing her to suffer a miscarriage. The applicant did not report the matter to the police as she believed that the police would not investigate family matters. She claimed to have moved home on a number of occasions but that her father-in-law was able to find them. She claimed that in 2005 her father-in-law kidnapped her six year old son. Although the police initially said that they would investigate the kidnapping, after speaking to her father-in-law they told her that the matter should be sorted out by the family. An applicant for asylum was refused, as was a subsequent application for subsidiary protection. The applicant sought review of the decision on subsidiary protection on the ground that the Minister had erred in his approach to the availability of state protection.

Decision & reasoning:

In assessing the standard of review that it is to be applied in considering an application for subsidiary protection, the court can have regard to the stage at which an application for subsidiary protection is made. Here, the issue of the threat posed was under consideration at every stage of the process, including the first instance decision and the decision of the statutory appeal body. Although more recent country of origin information was submitted to the Minister in the context of the subsidiary protection application, no new evidence relating specifically to the applicant’s circumstances was submitted, nor was it suggested that the situation in Nigeria had changed significantly.

If the case for subsidiary protection is put on an entirely new basis which has never been considered at any stage of the asylum process and is not one that can be regarded as inherently implausible, a particularly careful and thorough analysis will be required. Conversely, if the Minister is being asked to consider once more, albeit in a different context, what has already been considered by him as well as by the first instance decision maker and the statutory appeal body, he is not expected to shut his eyes to what has gone before.

The onus lies on an applicant to provide clear and convincing proof of a state’s inability to protect its citizens.

The concept of subsidiary protection is to offer protection to those who are seen as being at risk of serious harm for reasons that fall outside of the scope of the Refugee Convention, rather than to provide a further or parallel appeal against a conclusion reached after due deliberation that the applicant was not in fact at risk of serious harm.

The Minister was entitled to have regard to the views reached in relation to credibility by the first instance decision-maker and the statutory appeal body on credibility. 

Outcome:

Leave to apply for judicial review refused.