Msengi v Minister for Justice and Another

• Jurisdiction: Ireland
• Judge: Mr. Justice John MacMenamin
• Judgment Date: 26 May 2006
• Neutral Citation: [2006] IEHC 241
• Court: High Court
• Docket Number: [No. 456 J.R./2005]
• Date: 26 May 2006

MSENGI v MIN FOR JUSTICE & REFUGEE APPEALS TRIBUNAL

JUDICIAL REVIEW

BETWEEN

NOLUVOYO MSENGI

APPLICANT

AND

THE MINISTER FOR JUSTICE EQUALITY AND LAW REFORM AND THE REFUGEE APPEALS TRIBUNAL

RESPONDENTS

[2006] IEHC 241

[No. 456 J.R./2005]

THE HIGH COURT

IMMIGRATION:

Asylum

Judicial review - Application for leave - Whether decision of Refugee Appeals Tribunal intra vires - Whether substantial and arguable grounds - Whether evidence of HIV positive status adequately considered - Whether proper definition of social group applied - Whether availability of state protection appropriately considered - Whether materials before the tribunal which placed the tribunal on inquiry - EMS v Minister for Justice, Equality and Law Reform (Unrep,Clarke J, 21/12/2004); R v Home Secretary exparte Robinson [1997] Imm AR 568; Ravichandaran v Secretary of State for the Home Department [1996] Imm AR 97; O(A) v Refugee Appeals Tribunal (Unrep, Peart J,26/5/2004); Kuthyar v Minister for Immigration and Multi Cultural Affairs [2000] FCA 110; R v Immigration Appeals Tribunal, ex parte Shah and Islam v Secretary of State for the Home Department [1999] 2 AC 629; Rostas v Refugee Appeals Tribunal (Unrep,Gilligan J, 31/7/2003); Skenderai v Home Secretary [2002] 4 All ER 555; Lelimo v Minister for Justice, Equality and Law Reform (Unrep, O'Sullivan J, 12/11/2003) and Horvath v Home Secretary [2001] 1 AC 489 considered - McNamara v An Bord Pleanála [1995] 2 ILRM 125 applied - Leave granted (2005/456JR - MacMenamin J - 26/5/2006)[2006] IEHC 241 M(N) v Minister for Justice, Equality and Law Reform

The applicant sought leave to apply for judicial review quashing the decision refusing her refugee status. The applicant contended that there were materials before the Tribunal that placed the Tribunal itself on inquiry as to whether the applicant would be a victim of discrimination as an HIV positive woman in South Africa.

Held by McMenamin J. in granting leave that the applicant was entitled to apply for judicial review on the grounds that the first respondent failed to take into account adequately or at all the fact or significance of the applicant’s status as an HIV positive person in the consideration of persecution in the future and as to her membership of a particular social group in the consideration of whether State protection was available to her.

Reporter: R.W.

HUMAN RIGHTS REVIEW SOUTH AFRICA 2004

ROSTAS v REFUGEE APPEALS TRIBUNAL UNREP HIGH 31.7.2003 2003/46/11163

SYMES CASE LAW ON THE REFUGEE CONVENTION REFUGEE ACT 1996 S2

UNHCR HANDBOOK

REFUGEE ACT 1996 S13

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

REFUGEE ACT 1996 S17(7)

R v HOME SECRETARY EX PARTE (ROBINSON) 1997 IAR 568

R v SECRETARY OF STATE FOR THE HOME OFFICE EX-PARTE RAVICHANDRAN 1996 IAR 97

ALI v MIN JUSTICE UNREP PEART 26.5.2004 2004/2/244

REFUGEE ACT 1996 S11(A)(3)

REFUGEE ACT 1996 S12(4)

REFUGEE ACT 1996 (SAFE COUNTRIES OF ORIGIN) ORDER SI 714/2004

KUTHYAR v MIN IMMIGRATION & MULTICULTURAL AFFAIRS 2000 FCA 110

R v IMMIGRATION APPEALS TRIBUNAL & ANOR EX-PARTE SHAH 1999 2 AC 629

SKENDERAJ v SECRETARY OF STATE FOR THE HOME DEPARTMENT 2002 EWCA CIV 567 2002 4 AER 555

REFUGEE ACT 1996 S1

LELIMO v MIN FOR JUSTICE 2004 2 IR 178

MCNAMARA v AN BORD PLEANALA 1995 2 ILRM 125

HORVATH v HOME SECRETARY 2001 1 AC 489

Mr. Justice John MacMenamin

1 The applicant in these proceedings is an asylum seeker in the State. She is a native of South Africa. She seeks leave to apply for a judicial review quashing the decision of the first named respondent dated 26th November, 2004 wherein she was denied the status of asylum seeker.

2 The applicant comes from Capetown in South Africa. She is single. She has two children. Her eldest child is living with her sister in South Africa. She herself worked as a domestic servant.

3 The applicant states that in February 2003 she was in her house in Capetown with her child when a man broke into her house armed with a gun, tried to beat her with the gun and then raped her. He said that if she spoke to anybody about the rape that he would kill her. The man then left her house. A neighbour took her to the local police station. She made a formal complaint. The applicant states that she met the man who raped her the next day. He said that he knew that she had made a complaint to the police. She says that one month later she was at a bus stop when this man fired a shot at her. She said that she had been threatened many times by this man during the intervening period. She was not injured as a result of the shot having being fired at her.

4 The applicant says that the man who threatened assaulted and raped her was a gangster. After the incident she went to live with her sister for approximately four months. However that man came to her sister's house after two months. Her sister organised for her to leave South Africa. She alleges that she could not be safe anywhere else in South Africa.

5 As a result of the rape she became pregnant. Her second child was born in this country. Both herself and the child are HIV positive. If she were to return to South Africa she would be concerned for her own safety and was also concerned about the health and well being of herself and her child.

6 While not strictly material to these proceedings, documents before the court disclose that in an interview with a Dr. Catherine O'Connor of the Western Health Board the applicant gave a somewhat different account of what transpired. To Dr. O'Connor she stated that agroup who were known as notorious gangsters in her region and who had contacts all over South Africa knocked on her door and gang raped her. She became pregnant as a result of this.

7 When the applicant came to Ireland she had not been previously tested for HIV and had not been expecting this diagnosis. While present in this jurisdiction and expecting her second child she was treated with retroviral therapy. As a result of this her blood tests have improved but she requires continuous therapy to keep her well. She has continued to take tablets daily. It is essential to maintain a certain level of drug in the body or the virus will develop resistance to the drugs if it falls below a certain limit. This applies not only to the drug the applicant is taking but causes a resistance to others as well which narrow the choices if a different regime had to be instigated. Taking medication at exactly the same time twice daily is essential. Dr. O'Connor has stated that she considers it essential the applicant be given leave to stay in the country as going back to South Africa would soon lead to her early demise from HIV.

8 The applicant sought refugee status on the basis that she had been raped whilst in South Africa and had become pregnant as a result of that rape. She states that she feared that the individuals who raped her and who were involved in that attack and that they might attack her again. In the course of her affidavit she stated that "following that rape I was diagnosed as being HIV positive and I fear that I will not obtain proper medical treatment and/or services in South Africa in relation to my condition". This statement may, or may not be entirely consistent with that given to Dr. O'Connor in relation to the time when the applicant discovered that she was HIV positive.

9 The applicant states that at the hearing of her appeal on 23rd August, 2004 counsel on her behalf made submissions to the first named respondent that to contract HIV in South Africa was like "a death sentence". A number of documents were also submitted, including submissions to the Parliamentary Portfolio Committee, a South Africa Country Report on Human Rights Practices 2003, The Human Rights Review South Africa 2004. The applicant states that counsel on her behalf made submissions in relation to the case ofRostas v. The Minister for Justice Equality and Law Reform (referred to below) and also referred to the textbook Symes and Jorrow.

10 Medical evidence was also submitted on her behalf outlining the nature of her complaints. While an issue arose in relation to the time within which the applicant might seek leave for judicial review counsel for the respondent indicated that it was not intended to rely on that point having regard to the facts of the case. Accordingly it is unnecessary to make any finding thereon.

11 The applicant does not furnish any recent details of her employment history in the questionnaire for refugee status. After May 1999 the applicant states that her partner paid for her journey to South Africa by giving money to a "travelling agent" who brought her here in the sum of 7,800 Rand. She says however that she separated from her partner in 2002 but they kept in communication thereafter. When asked in the course of interview whether she knew why she had been targeted by her attacker she said she did not know.

12 The tribunal member found that there were two issues to be considered. The first issue was whether or not the rape had ever occurred and whether or not the applicant was credible. There was one incident of sexual violence coupled with what transpired in evidence in regard to a number of serious threats following the assault wherein the alleged perpetrator threatened the applicant. Added to this was the attempt made to shoot her. Although the shot missed the applicant it is alleged that the person beside her was wounded.

13 The essential case made on behalf of the applicant is that what had occurred amounted to persecution and that it should further be taken into account that the consequences of the rape were horrific for the applicant. Both herself and her second child were now HIV positive. Proper state protection was not available to the applicant. The applicant could not be sure that she will receive proper medical treatment if she were...