M.E.O v The Minister for Justice, Equality and Law Reform

JurisdictionIreland
JudgeMr. Justice Cooke
Judgment Date05 September 2012
Neutral Citation[2012] IEHC 394
CourtHigh Court
Date05 September 2012

[2012] IEHC 394

THE HIGH COURT

[No. 956 J.R./2010]
O (ME) [Nigeria] v Min for Justice
MR JUSTICE COOKE
APPROVED TEXT
JUDICIAL REVIEW

BETWEEN

M. E. O. [Nigeria]
APPLICANT

AND

THE MINISTER FOR JUSTICE, EQUALITY AND LAW REFORM
RESPONDENT

MEADOWS v MIN FOR JUSTICE 2010 2 IR 701

CONSTITUTION ART 40.3.2

EUROPEAN CONVENTION ON HUMAN RIGHTS ART 3

EUROPEAN CONVENTION ON HUMAN RIGHTS ART 8

B (B) v FRANCE 1998 VI 2596

REFUGEE ACT 1996 S13

REFUGEE ACT 1996 S2

IMMIGRATION ACT 1999 S3

REFUGEE ACT 1996 S9

IMMIGRATION ACT 2004 S5

IMMIGRATION ACT 2004 S4

IMMIGRATION ACT 2004 S4(6)

EAST DONEGAL CO-OPERATIVE LIVESTOCK MART LTD v AG 1970 IR 317

CONSTITUTION ART 40.3

O'REILLY v LIMERICK CORPORATION 1989 ILRM 181

D (T) v MIN FOR EDUCATION 2001 4 IR 259

CONSTITUTION ART 45

CONSTITUTION ART 45.4.1

FAJUJONU v MIN FOR JUSTICE 1990 2 IR 151

CONSTITUTION ART 40

CONSTITUTION ART 26

ART 26 OF THE CONSTITUTION & S5 & S10 OF ILLEGAL IMMIGRANTS (TRAFFICKING) BILL 1999, IN RE 2000 2 IR 360

REFUGEE ACT 1996 S5

CRIMINAL JUSTICE (UNITED NATIONS CONVENTION AGAINST TORTURE) ACT 2000 S4

D v UK 1997 24 EHRR 423

N v SECRETARY OF STATE FOR THE HOME DEPARTMENT 2005 2 AC 296

KARARA v FINLAND UNREP APPLICATION NO. 40900/98 29.5.1998

M (M) v SWITZERLAND UNREP APPLICATION NO. 43348/98 14.9.1998

TATETE v SWITZERLAND UNREP APPLICATION NO. 41874/98 6.7.2000

C (S C) v SWEDEN UNREP APPLICATION NO. 46553/99 15.2.2000

NDANGOYA v SWEDEN UNREP APPLICATION NO. 17868/03 22.6.2004

AMEGNIGAN v THE NETHERLANDS UNREP APPLICATION NO. 25629/04 25.11.2004

BENSAID v UK 2001 33 EHRR 205

N v UK 2008 47 EHRR 39

IMMIGRATION ACT 1999 S3(6)

K (S) v REFUGEE APPEALS TRIBUNAL & MIN FOR JUSTICE UNREP HOGAN 7.7.2011 2011/29/7886 2011 IEHC 301

DA SILVEIRA v REFUGEE APPEALS TRIBUNAL (HURLEY) & MIN FOR JUSTICE UNREP PEART 9.7.2004 2005/15/3102 2004 IEHC 436

STATE (KEEGAN & LYSAGHT) v STARDUST VICTIMS COMPENSATION TRIBUNAL 1986 IR 642

A (A)[IRAQ] v MIN FOR JUSTICE & ORS UNREP COOKE 24.5.2012 2012 IEHC 222

AGBONLAHOR v MIN FOR JUSTICE 2007 4 IR 309

MARCKX v BELGIUM 1979 2 EHRR 330

EZZOUHDI v FRANCE 2001 ECHR 85

BOULTIF v SWITZERLAND 2001 33 EHRR 50

Judicial Review - Refugee status - Deportation - Application for subsidiary protection refused - Deceptive conduct of applicant - Constitutional rights - Art 3 of the European Convention on Human Rights - Medical treatment - Adequacy of treatment in native country

Facts: The applicant was originally from Nigeria. She claimed she had come to Ireland after receiving death threats in relation to debts incurred after the burning down of her business. Her asylum claim was rejected grounds that the form of persecution she was alleging was not covered by s. 2 of the Refugee Act 1996 and she had not reported the threats to domestic authorities. Her subsequent claim for subsidiary protection was also rejected.

Whilst in the state, she had been diagnosed as HIV positive and had been receiving treatment for same. She sought judicial review were that if deported she would face inferior treatment breaching her rights. Despite this, the respondent made a deportation order in June 2010 rejecting her application to remain on humanitarian grounds. The respondent held that the medical evidence showed that there was no infringement of the applicant's right to life under art 3 of the European Convention on Human Rights because her treatment in Nigeria would not render her condition critical.

Held by Cooke J that, whilst information before the Court showed Nigeria had a widespread HIV problem, there was nothing to suggest the applicant would not receive adequate treatment for her condition. Indeed, there was clear evidence that large numbers of people received treatment, including the applicant, and the respondent was therefore entitled to take this into account. As a non-national, the State had no obligation to continue to treat the applicant unless it was shown that deportation would result in a critical deterioration in her condition.

Application for judicial review refused.

1

JUDGMENT of Mr. Justice Cooke delivered the 5th day of September, 2012

2

1. By order of the Court (Hogan J.) of the 16 th September, 2011, leave was granted to the applicant to apply for judicial review of a deportation order (the "contested decision") made in respect of her by the respondent on the 17 th June, 2010. The application for leave was the subject of a detailed judgment of Hogan J. of the 9 th September, 2011.

The Leave Grounds.
3

2. In the order of the Court of the 16 th September, 2011, the grounds upon which leave was granted are set out in narrative form in three paragraphs, but as ground no. 1, appears to contain a number of subsidiary grounds it is useful to identify the different grounds more precisely as follows:

4

(1) The Minister's decision was vitiated by material error of fact, namely that the applicant's concerns regarding access to anti-retro viral therapy was (sic) "unfounded".

5

(2) The Minister's reasoning was deficient "in the Meadows sense". (This is a reference to the judgment of the Supreme Court in Meadows v. Minister for Justice [2010] 2 I.R. 701)

6

(3) The examination of the file in relation to the Nigerian material was highly selective.

7

(4) The specialised material relied upon by the Minister ought to have been disclosed to the applicant in advance in compliance with fair procedures.

8

(5) The applicant's rights under Article 40.3.2 of the Constitution will be breached if deported to Nigeria, where, possibly deprived of access to life saving treatment, indigent, poor and bereft of family and friends and suffering from impaired mental cognition, she will be condemned to face a decline and death over months in circumstances where her human dignity cannot be maintained.

9

(6) Her rights under article 3 and article 8 of the European Convention on Human Rights may be similarly breached having regard in particular to the Commission's decision in B.B. v. France 9 March 1998, RJD, 1998 VI, p2596.

10

3. The background to the application is as follows. The applicant is a national of Nigeria who arrived in the State in November 2006 and claimed asylum on the 22 nd November, 2006. She was at that time 40 years of age. She claimed to have left behind her in Nigeria three children and a husband from whom she had been separated for a considerable period.

11

4. She claimed to have been a business woman in Nigeria with a shop selling clothes. In 2005 a nearby pipeline exploded and her shop was burnt down. She later got a second shop with financial assistance from business partners, but this shop too was destroyed by fire started, she thinks, by drunken youths. She reported the fire to the police and they offered to investigate the matter if she brought them money. As a result of the fire she was unable to repay the money she owed to her business partners and they threatened to kill her. These alleged events had formed the basis of her claims to fear persecution and to be at risk of serious harm.

12

5. In a report dated the 14 th December, 2006, under s. 13 of the Refugee Act 1996, the Commissioner made a negative recommendation on the asylum application. This was appealed to the Tribunal but the negative recommendation was affirmed by a decision of the Tribunal on the 25 th May, 2007. Essentially, the Tribunal member held that the particular source of the feared persecution namely, the threats from her business partners, was not one with a Convention nexus and did not therefore constitute "persecution" for the purposes of s. 2 of the Act of 1996. In addition however, the Tribunal member held that there had not been any failure on the part of Nigerian authorities to provide State protection as the claimed persecution had never been reported to the police.

13

6. On the 19 th July, 2007, in response to the letter under s. 3 of the Immigration Act 1999, representations for leave to remain and an application for subsidiary protection were submitted on behalf of the applicant. The application for subsidiary protection was refused on the 24 th June, 2008.

14

7. On the 12 th March, 2009, a deportation order in respect of the applicant was made by the respondent. An initial judicial review application (Record No. 2009, No. 351 J.R.) was commenced but subsequently compromised and the applicant was given an opportunity to make further representations in support of her application for leave to remain. These were duly forwarded by letters of the 26 th April, 27 th April and 12 th May, 2010.

15

8. A new deportation order was then made on the 17 th June, 2010, following consideration of the additional representations. This is the contested decision the subject of the present judicial review.

The Main Issues.
16

9. As indicated in the judgment of Hogan J. granting leave, the applicant's challenge to the deportation order is essentially based upon the humanitarian considerations raised by her medical condition and her personal circumstances. Shortly after her arrival in the State the applicant was diagnosed as HIV positive and she has been receiving anti-retro viral (ARV) therapy and care in the State since 2006. Apart from the particular flaws alleged under the heading of grounds (1) to (4) above, her essential claim accordingly, is that her deportation to Nigeria in these circumstances and having regard particularly to the circumstances in which she would live in Nigeria, is unlawful as an infringement of the various rights set out in the grounds for which leave was granted.

17

10. The underlying issue raised by this application, therefore, is primarily a humanitarian one. The applicant entered the State without permission in 2006, but was then entitled to remain in accordance with s. 9 of the Refugee Act 1996, so long as her asylum...

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