S (B) v Refugee Appeals Tribunal (Nolan)

• Jurisdiction: Ireland
• Judge: MS. JUSTICE M. H. CLARK
• Judgment Date: 20 January 2010
• Neutral Citation: [2010] IEHC 138
• Court: High Court
• Date: 20 January 2010

[2010] IEHC 138

THE HIGH COURT

[No. 1059 J.R./ 2008]

S (B) v Refugee Appeals Tribunal (Nolan)

JUDICIAL REVIEW

BETWEEN

B. S.

APPLICANT

AND

THE REFUGEE APPEALS TRIBUNAL (SUSAN NOLAN)

RESPONDENT

AND

THE MINISTER FOR JUSTICE, EQUALITY AND LAW REFORM

NOTICE PARTY

REFUGEE ACT 1996 S13

UNHCR HANDBOOK ON PROCEDURES & CRITERIA FOR DETERMINING REFUGEE STATUS PARA 54

REFUGEE ACT 1996 S2

EUROPEAN COMMUNITIES (ELIGIBILITY FOR PROTECTION) REGS 2006 SI 518/2006 REG 9

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

KUTHYAR v MIN FOR IMMIGRATION & MULTICULTURAL AFFAIRS UNREP 11.2.2000 2000 FCA 110

I (EF) v REFUGEE APPEALS TRIBUNAL & ORS UNREP CLARK 25.2.2009 2009 IEHC 94

A (PP) & ORS v REFUGEE APPEALS TRIBUNAL & ORS 2007 4 IR 94 2007 1 ILRM 288 2006/3/519 2006 IESC 53

IMMIGRATION

Asylum

Fear of persecution - Societal discrimination - HIV positive - Distinction between persecution and societal discrimination - Duty to give reasons -Consideration of previous similar decisions - Whether societal discrimination amounted to persecution for the purposes of the act -Whether tribunal member considered previous relevant decisions - Refugee Act 1996 (No 17) s 2 - European Communities (Quality and Safety of Human Tissues and Cells) Regulations (SI 158/2006), reg 9 - S(EM) v MJELR [2004] IEHC 398 (Unrep, Clarke J, 21/12/2004), Atanasov v Refugee Appeals Tribunal [2006] IESC 53 (Unrep, SC, 26/7/2006) and Kuthyar v Minister for Immigration and Multicultural Affairs (2000) FCA 10 considered - I (BF) v Refugee Appeals Tribunal [2009] IEHC 95 (Unrep, Clark J, 25/2/2009) distinguished - Leave refused (2008/1059JR - Clark J - 20/1/2010) [2010] IEHC 138

S(B) v Refugee Appeals Tribunal

1 JUDGMENT OF MS. JUSTICE M. H. CLARK, delivered on the 20th day of January, 2010.

2 1. The applicant seeks leave to apply for an order of certiorari quashing the decision of the Refugee Appeals Tribunal ("the Tribunal"), dated the 21 ^st July, 2008 which affirmed the decision of the Refugee Applications Commissioner ("the Commissioner") to recommend that the applicant should not be declared a refugee.

3 2. The applicant, who was assisted by a solicitor when filling in her questionnaire, claims that she was born in 1963 in Nigeria, is separated from her husband and is the mother of four children two of whom are adults. She claims that she arrived in the State in April, 2007 having been brought here by an agent using a false passport. She came to take up employment as a child minder for a Nigerian couple who later abandoned her. At or around that time she became ill and was admitted to hospital and was diagnosed as HIV positive. She applied for asylum at the end of November, 2007 and on her ASY 1 form she stated that she came to the State to claim asylum as she had no money and could work here. In her questionnaire she claimed that she would suffer stigma, hostility and a persecutory denial of medical treatment in Nigeria. Her solicitors made written submissions on her behalf prior to the interview, claiming that she feared persecution on grounds of membership of two particular social groups being (i) individuals and / or women suffering from HIV in Nigeria and (ii) women and / or single women in Nigeria. At interview she claimed that she was molested, beaten and robbed many times on her way back from the market in Nigeria. She also claimed that she would be isolated in Nigeria because she is HIV positive and would not receive treatment. Two days after the interview her solicitors made further written submissions clarifying her fears.

4 3. Her application for refugee status failed before the Commissioner. In the s. 13 report the Commissioner, relying on paragraph 54 of the UNHCR Handbook, concluded that any discrimination asserted would not reach a level which would amount to persecution. Paragraph 54 of the Handbook states:-

"Differences in the treatment of various groups do indeed exist to a greater or lesser extent in many societies. Persons who receive less favourable treatment as a result of such differences are not necessarily victims of persecution. It is only in certain circumstances that discrimination will amount to persecution. This would be so if measures of discrimination lead to consequences of a substantially prejudicial nature for the person concerned, e.g. serious restrictions on his right to earn his livelihood, his right to practise his religion, or his access to normally available educational facilities."

5 4. The applicant appealed the Commissioner's recommendation before the Tribunal but was unsuccessful and the recommendation was affirmed. In her decision the Tribunal Member noted that the applicant's evidence had been that when she was diagnosed with HIV, she knew that she would get good medical treatment in Ireland and she might not get medical treatment in Nigeria because she did not have the money and that persons living with HIV are usually isolated in Nigeria because everyone is afraid of them. The Tribunal Member considered country of origin information (COI) furnished by the applicant and by the Commissioner on the treatment of AIDS in Nigeria and concluded that while there was some evidence of discrimination against persons living with HIV including from certain healthcare professionals, this was not of such a level as to amount to persecution and was not attributable to any policy taken by the Nigerian government.

6 5. The Tribunal Member then considered whether the applicant would face discrimination in Nigeria as a single woman if she returned. It was accepted that COI on the attitude of the police towards single women suggested that there were some barriers to single women seeking protection but it was noted that the applicant had a father and brothers living in Nigeria and therefore she had a family support network in the country. The Tribunal Member found that the applicant's own evidence was that other traders, including men, were attacked and vulnerable and therefore the applicant had failed to establish that the attacks were as a result of her being a woman / single woman in Nigeria and therefore no Convention reason was established. It was also noted that her evidence was that she left Nigeria in order to get work and that she wanted to return but that she had no documents.

7 6. The applicant challenges the validity of the Tribunal decision on the ground that the Tribunal Member erred in her assessment of the applicant's fear of persecution by reason of her HIV status and in particular:

8 (i) Erred in her assessment of state protection for persons living with HIV in Nigeria;

9 (ii) Failed to take into account and / or was selective in her reference to the country of origin information submitted by the applicant relating to the discriminatory treatment of persons living with HIV in Nigeria; and

10 (iii) Failed to have regard to previous decisions relating to Nigerian nationals living with HIV.

11 7. At the hearing Ms. Bourached B.L., counsel for the applicant, argued that the applicant had claimed persecution on two distinct grounds: (i) the denial of medical treatment on a discriminatory basis at the hands of the government and (ii) societal discrimination and stigmatisation amounting to persecution by non-State actors. She argued that the Tribunal Member confused these two issues and proceeded in error on the basis that there was a requirement of state complicity in societal discrimination before persecution could be found. As a matter of law, there is no requirement of state complicity in order for non-state persecution to be established.

12 8. The applicant also argued that COI before the Tribunal Member indicates that there is widespread societal discrimination against persons living with HIV in Nigeria and that the Nigeria government does not provide any method of redress or protection against such discrimination. Such discrimination therefore might amount to persecution within the meaning of s. 2 of the Refugee Act 1996 when read in conjunction with Regulation 9 of the European Communities (Eligibility for Protection) Regulations 2006 ( S.I. No. 518 of 2006). A state is required to have in place an effective legal system for the prevention and punishment of acts amounting to persecution which, it is argued, includes acts of discrimination against persons living with HIV. Reliance was placed on the judgment of Clarke J. in E.M.S. v. The Minister for Justice, Equality and Law Reform [2004] I.E.H.C. 398 and on the judgment of the Federal Court of Appeal in Australia in Kuthyar v. Minister for Immigration and Multicultural Affairs (2000) FCA 110.

13 9. Ms. O'Sullivan B.L., counsel for the respondent, submitted that an examination of the COI furnished to the Tribunal Member indicates that it is of variable relevance, reliability or objectivity and that not all of it refers to HIV / AIDS. The particular document relied upon by the applicant as a source of information on state discrimination against persons living with HIV is of doubtful provenance being an internet...