N (N) v Min for Justice & Refugee Applications Commissioner

• Jurisdiction: Ireland
• Judge: Mr. Justice Cooke
• Judgment Date: 20 May 2009
• Neutral Citation: [2009] IEHC 234
• Court: High Court
• Date: 20 May 2009

[2009] IEHC 234

THE HIGH COURT

[No. 1219 J.R./2006]

N (N) v Min for Justice & Refugee Applications Commissioner

JUDICIAL REVIEW

BETWEEN /

N.N.

APPLICANT

AND

THE MINISTER FOR JUSTICE, EQUALITY & LAW REFORM AND THE REFUGEE APPLICATIONS COMMISSIONER

RESPONDENTS

A (RL) v MIN FOR JUSTICE EQUALITY & LAW REFORM UNREP COOKE 30.4.2009 2009 IEHC 216

REFUGEE ACT 1996 S16

REFUGEE ACT 1996 S12(4)

REFUGEE ACT 1996 S12(4)(B)

UNHCR HANDBOOK ON PROCEDURES & CRITERIA FOR DETERMINING REFUGEE STATUS PAR 66

UNHCR HANDBOOK ON PROCEDURES & CRITERIA FOR DETERMINING REFUGEE STATUS PAR 67

REFUGEE ACT 1996 S13

IMMIGRATION

Asylum

Judicial review - Country of origin designated as safe - Applicant HIV positive - Statutory appeal lodged but rejected as out of time - Failure to raise HIV status as grounds for asylum - Whether failure to take into account persecution of applicant by reference to HIV status - Whether obligation on respondent to anticipate possible variations on fear of persecution where not specifically raised by applicant - Whether exceptional case so as to warrant granting of relief notwithstanding availability of statutory appeal -Whether UNHCR handbook had force of law - Ajoke v MJELR [2009] IEHC 216 (Unrep, Cooke J, 30/4/2009) considered - Refugee Act 1996 (No 17), ss 11B, 12 and 16 - Relief refused (2006/1219JR - Cooke J - 20/5/2009) [2009] IEHC 234

N (N) v Minister for Justice, Equality and Law Reform

Facts: The applicant sought by way of judicial review an order of certiorari quashing the report and recommendation of the second named respondent which recommended that the applicant not be declared a refugee. The applicant submitted that the second named respondent failed to take into account adequately or at all the fact or significance of the applicant's status as a HIV Positive person in consideration of persecution in the future and as to membership of a particular social group in consideration of whether State protection as available to her. The report of the second named respondent did mention the applicant's HIV status and determined that whilst she might not receive in South Africa the medical attention she needed, there was no evidence to suggest she would be treated differently from any other South African nationals in the same situation. The applicant essentially argued that as a sufferer from HIV, the applicant was a member of a particular group, namely women suffering from HIV/AIDS, and that once that particular fact was mentioned, the respondent was/ought to have been put on enquiry as to whether the applicant would be exposed to discrimination amounting to persecution if returned to South Africa. In support of the alleged onus on the respondent to investigate the aforementioned, the applicant relied upon the UNHCR "Handbook on Procedures and Criteria for Determining Refugee Status."

Held by Cooke J. in refusing the application: That the UNHCR Handbook, whilst a useful and authoritative guide did not have force of law. In this case, the respondent did investigate the implication of fear expressed by the applicant and sought out country of origin information. The respondent did recognise the applicant as a member of the particular social group alleged. However, the investigative role and duty of the respondent did not extend so far as to require the respondent to examine government policy in South Africa on the question of the possible discriminatory distribution of the limited availability of drug treatment for HIV sufferers.

Reporter: L.O'S.

1 By order of 31 ^st July, 2008, O'Keeffe J. granted the applicant leave to apply for an order of certiorari by way of judicial review to quash a report and recommendation of the second named respondent ("The Commissioner") of 26 ^th September, 2006 ("the Contested Report") which recommended that the applicant be not declared a refugee. Leave was granted on two grounds as follows:-

1 ) The second named respondent failed to take into account adequately or at all the fact or significance of the applicant's status as a HIV Positive person in consideration of persecution in the future and as to a membership of a particular social group in the consideration of whether State protection was available to her.

2 ) The Refugee Applications Commissioner erred in law and in breach ofStatute by failing to take into account the matters set out in s. 11B of the Refugee Act 1996 (as amended) as there was an obligation to do so and in circumstances the decision is invalid. A mere statement that "this report has had regard to s. 11B of the Refugee Act (as amended)" is insufficient compliance with the terms of the said statutory requirement.

2 Upon the commencement of the hearing in this case the second above ground was withdrawn by counsel on behalf of the applicant in the light of the judgment which the court had delivered on 30 ^th April, 2009 in the case of Ajoke v. Minister for Justice Equality and Law Reform & Another in which the same ground had been rejected as unfounded.

3 In addition to submissions on the above remaining ground, the court invited the parties, in view of the judgment of the Supreme Court on 28 ^th January, 2009, in A.K. v. Minister for Justice, Equality and Law Reform & Ors. (Unreported) to make submissions on the issue as to whether the present case fell into the category of exceptional cases in which the court might exercise its discretion to issue an order of certiorari not withstanding the availability of the statutory appeal to the Refugee Appeals...