J.E. v Minister for Justice, Equality and Law Reform

• Jurisdiction: Ireland
• Judge: Mr. Justice Cooke
• Judgment Date: 22 October 2010
• Neutral Citation: [2010] IEHC 372
• Court: High Court
• Docket Number: [2008 No. 529 JR]
• Date: 22 October 2010

[2010] IEHC 372

THE HIGH COURT

[No. 529 JR/2008]

E (J) v Min for Justice

JUDICIAL REVIEW

MR JUSTICE COOKE

APPROVED TEXT

BETWEEN/

J.E.

APPLICANT

AND

THE MINISTER FOR JUSTICE, EQUALITY AND LAW REFORM

RESPONDENT

REFUGEE ACT 1996 S5

EUROPEAN CONVENTION ON HUMAN RIGHTS & FUNDAMENTAL FREEDOMS ART 3

MEADOWS v MIN FOR JUSTICE UNREP SUPREME 21.1.2010 2010 IESC 3

D v UNITED KINGDOM 1997 24 EHRR 423

KOUAYPE v MIN FOR JUSTICE & ORS UNREP CLARKE 9.11. 2005 2005/35/7364 2005 IEHC 380

CONSTITUTION ART 40.3.2

IMMIGRATION ACT 1999 S3(6)(I)

UN (CRIMINAL JUSTICE CONVENTION AGAINST TORTURE) ACT 2000 S4

IMMIGRATION ACT 1999 S3(6)(H)

IMMIGRATION ACT 1999 S3(6)(I)

IMMIGRATION ACT 1999 S3(6)(G)

EUROPEAN CONVENTION ON HUMAN RIGHTS & FUNDAMENTAL FREEDOMS ART 8

IMMIGRATION ACT 1999 S3(3)(B)

P (F) & ORS v MIN FOR JUSTICE 2002 1 IR 164 2002 1 ILRM 38 2001/20/5496

O v MIN FOR JUSTICE & ORS [BABY O CASE] 2002 2 IR 169 2003 1 ILRM 241 2002/3/501

SMITH & GRADY v UK 2000 29 EHRR 493

S (E M) v MIN FOR JUSTICE UNREP CLARKE 21.12.2004 2004/45/10370 2004 IEHC 398

KUTHYAR v MIN IMMIGRATION & MULTICULTURAL AFFAIRS 2000 FCA 110

T (MS) & T (J) (A MINOR) v MIN FOR JUSTICE UNREP COOKE 4.12.2009 2009/54/13750 2009 IEHC 529

EUROPEAN COMMUNITIES (ELIIGIBILITY FOR PROTECTION) REGS 2006 SI 518/2006

IMMIGRATION LAW

Deportation

Leave to remain - HIV/Aids - Stigma and discrimination - Prohibition on refoulement - Failure to give reasons for decision - Whether obligation to give reasons for decision - Whether adequate reasons for decision disclosed - Meadows v Minister for Justice [2010] IESC 3, [2010] 2 IR 701 distinguished; Kouaype v Minister for Justice [2005] IEHC 380, (Unrep, Clarke J, 14/12/2005), Baby O v Minister for Justice [2002] 2 IR 169 and EMS v Minister for Justice [2004] IEHC 398 applied; D v UK (1997) 24 EHRR 423 and Smith and Grady v. UK (2000) 29 EHRR493 approved - Refugee Act 1996 (No 17), s 5 - Immigration Act 1999 (No 22), s 3 - European Convention on Human Rights and Fundamental Freedoms 1950, article 3 - Relief refused (2007/529JR - Cooke J - 22/10/2010) [2010] IEHC 372

E(J) v Minister for Justice

Facts An application was made for leave to apply for judicial review of the deportation order made by the respondent against the applicant. The applicant was suffering from HIV/AIDS and was receiving treatment in the State. It was claimed that deportation would affect the treatment and would also result in stigmatisation and discrimination. It was contended that this would infringe the applicant's rights under section 5 of the Refugee Act, 1996 and the European Convention on Human Rights. These possible infringements, it was argued, had been inadequately considered by the Minister in evaluating the representations made against the making of a deportation order.

Held by Cooke J in refusing the relief sought. Taken at its strongest, the information presented pointed to serious deficiencies in the health services of Nigeria. The information indicated that HIV/Aids sufferers faced stigmatisation and discrimination including such treatment at the hands of some personnel in the health services in Nigeria. Stigmatisation and discrimination would constitute ill-treatment which came within the scope of the prohibition in s. 5 of the Refugee Act, 1996 only if there was clear evidence that the ill-treatment was so endemic as to raise a presumption that it was official policy. An inferior standard of medical treatment resulting from discriminatory attitudes towards a particular social group would not amount to persecution for a Convention reason unless it was associated with an unwillingness by the relevant authorities to protect members of the group from such ill-treatment.

Reporter: RF

1 JUDGMENT of Mr. Justice Cookedelivered the 22nd day of October, 2010.

2 1. By order of this Court of 25 ^th March, 2010, leave was granted to the applicant to seek judicial review of a deportation order made in respect of the applicant by the respondent on 10 ^th April, 2008. Leave was granted to seek, in particular, an order of certiorari quashing that order by reference to two specific grounds as follows:

3 (a) Having accepted that the applicant suffers from and is being treated for HIV/Aids, the respondent failed to consider, to analyse and to determine the applicant's claim that his deportation to Nigeria would, in the light of the country of origin information submitted to him or recited in the file note containing the purported reasons for the decision, violate the prohibition on refoulement in s. 5 of the Refugee Act 1996 and/or Article 3 of the European Convention on Human Rights; and

4 (b) It fails to disclose the salient or any reason for the finding that the deportation "is not contrary to s. 5 of the Refugee Act 1996 (as amended)".

5 2. As indicated in an extempore judgment given on the same day, the Court granted leave with some hesitation but considered that the issues embodied in those grounds warranted more deliberate consideration at a substantive hearing having regard to what appeared to be a potential similarity between the approach adopted in the "Examination File Note" which supported the order and that which formed the basis of the judgments of the Supreme Court in the then recently decided appeal of Meadows v. Minister for Justice, Equality and Law Reform of 21 ^st January, 2010. The issues raised by these grounds arise in the following circumstances.

6 3. The applicant is a failed asylum seeker who had arrived in the State in July 2004. He was subsequently diagnosed as suffering from HIV/Aids and has been receiving treatment for the condition in this country since. Following the failure of his application for asylum, a deportation order was made against him on 15 ^th September, 2005. That order was subsequently revoked and the applicant was given a further opportunity to submit representations against deportation. This was done on his behalf by his solicitor on 3 ^rd July, 2007. The order which is now contested was then made on 10 ^th April, 2008.

7 4. The issues arise, accordingly, out of the fact that the applicant suffers from this particular medical condition and are based upon the proposition that the termination of the treatment which he currently receives for it in this jurisdiction combined with the conditions he would face in Nigeria both as regards access to equivalent treatment and, more importantly, the allegedly pervasive attitude of stigmatisation and discrimination he would encounter, give rise to a threatenedinfringement of his rights under s.5 of the 1996 Act and/or Article 3 of the ECHR. These possible infringements, it is argued, have been inadequately considered by the Minister in evaluating the representations made against the making of a deportation order. Counsel for the applicant has acknowledged that as a matter of law, a mere discrepancy in the standard of medical treatment available in a country of origin cannot except in very rare circumstances, constitute a ground for challenge to an order of deportation. (The exceptional case which can give rise to a violation of Article 3 of the ECHR is illustrated by the judgment of the European Court of Human Rights in D. v. United Kingdom where it was found that an applicant who was terminally ill would be "exposed to a real risk of dying under the most distressing circumstances" such that the deportation would amount to inhuman treatment.) In the present case, however, it is not argued that the applicant's condition is such that his actual deportation to Nigeria would constitute a threat to his life.

8 5. The present claim is not, accordingly, grounded upon a simple proposition that the treatment available to the applicant in Nigeria is inferior but upon a more specific procedural point. It is claimed that in the representations made against the deportation order, extensive country of origin information was put forward to show that the applicant if returned would be subjected to stigma and discrimination including discriminatory treatment at the hands of personnel in the health and medical services there and that this would constitute a threat to his life or freedom which required the Minister to consider whether the prohibition on refoulement in s. 5 of the 1996 Act would amount to inhuman or degrading treatment and thus an infringement of the protection afforded by Article 3 of the Convention. Secondly, an argument based upon a failure to state any or any adequate reason is advanced by analogy with the Meadows case in that it is alleged the Examination of File Note, while acknowledgingthe evidence as to stigmatisation and discrimination prevalent in Nigeria, gives no reason or explanation for the conclusion that the prohibition on refoulement does not apply.

9 7. Before dealing with these questions it is, perhaps, no harm to recall that, according to the case law, the basis upon which a challenge can be raised to a deportation order is limited. The approach of the Court was described in the judgment of Clarke J. of 9 ^th November, 2005 in Kouaype v MJELR, [2005] I.E.H.C. 380 at para, 5.1 as follows:

"For all of the above reasons it seems to me that the grounds upon which a decision by the Minister to make a deportation order in the case of a failed asylum seeker can be challenged are necessarily limited. Without being exhaustive it seems to me that it would require very special circumstances for such a review to be possible unless it can be shown that:"

(a) The Minister did not consider whether the provisions of s. 5 applied. Where the Minister says that he did so consider and in the absence of any evidence to the contrary this will be established;

(b) The Minister could not reasonably have come to the view which he did. ....

(c) The Minister did not afford the applicant a statutory entitlement to make representations...