S.I. v Minister for Justice, Equality and Law Reform and Another

• Jurisdiction: Ireland
• Judge: Ms. Justice
• Judgment Date: 11 May 2007
• Neutral Citation: [2007] IEHC 165
• Court: High Court
• Docket Number: [No. 1054 J.R./2005]
• Date: 11 May 2007

[2007] IEHC 165

THE HIGH COURT

[No. 1054 J.R./2005]

I (s) v MIN FOR JUSTICE & ORS

JUDICIAL REVIEW

IN THE MATTER OF THE REFUGEE ACT 1996 AND THE ILLEGAL

IMMIGRANTS (TRAFFICKING) ACT 2000

BETWEEN

S. I.

APPLICANT

AND

THE MINISTER FOR JUSTICE, EQUALITY AND LAW REFORM AND THE REFUGEE APPEALS TRIBUNAL (TRIBUNAL MEMBER, ELIZABETH O'BRIAN)

RESPONDENT

REFUGEE ACT 1996 S13(1)

ILLEGAL IMMIGRANTS (TRAFFICKING0 ACT 200 S5(2)(B)

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

MCNAMARA v BORD PLEANALA 1995 2 ILRM 125

EUROPEAN CONVENTION ON HUMAN RIGHTS & FUNDAMENTAL FREEDOMS ART 6

EUROPEAN CONVENTION ON HUMAN RIGHTS & FUNDAMENTAL FREEDOMS ART 14

ILLEGAL IMMIGRANTS (TRAFFICKING0 ACT 200 S5

DA SILVEIRA v REFUGEE APPEALS TRIBUNAL UNREP HIGH PEART 9.7.2004 2004 IEHC 436(EX TEMPORE)

CAMARA v MIN FOR JUSTICE UNREP KELLY 26.7.2000 2000/4/124

REFUGEE ACT 1996 S2

HATHAWAY LAW OF REFUGEE STATUS 1991 87

REFUGEE ACT 1996 S16(1)(A)

REFUGEE ACT 1996 S5

EUROPEAN CONVENTION ON HUMAN RIGHTS & FUNDAMENTAL FREEDOMS ART 3

EUROPEAN CONVENTION ON HUMAN RIGHTS & FUNDAMENTAL FREEDOMS ART 8

REFUGEE ACT 1996 S16(8)

KUTHYAR v MIN FOR IMMIGRATION & MULTICULTURAL AFFAIRS 2000 FCA 110

HATHAWAY LAW OF REFUGEE STATUS 1991 108-112

HORVATH v SECRETARY OF STATE FOR THE HOME DEPARTMENT 2000 WLR 379 2000 3 AER 577

Abstract:

I migration -Asylum - Judicial review - Membership of a particular social group -Country of Origin Information - Refugee Act, 1996 - Whether the applicant established substantial grounds for contending that the decision of the second named respondent was invalid.

The applicant sought leave to challenge by way of judicial review the decision of the Refugee Appeals Tribunal (RAT) refusing to grant him refugee status. The grounds for the application were that the delay in giving the decision subsequent to the oral hearing was contrary to public policy, the RAT made an incorrect finding of fact of sufficient importance to invalidate the decision, the RAT in making negative conclusions regarding the applicant’s credibility failed to take account of relevant material, information and evidence and the RAT erred in law in concluding that personal targeting was a precondition for a finding of a well founded fear of persecution. Those grounds related to the applicant’s claim for refugee status based on a fear of persecution by reason of his religion. The applicant also relied upon a well founded fear of persecution based on his (his wife’s and his child’s) membership of a particular social group, namely persons suffering from HIV/AIDS and he submitted further grounds for reviewing the decision of the RAT in relation to that claim. The applicant submitted that the RAT relied on country of origin information which was not drawn to his attention nor was he given an opportunity to make submissions in relation thereto, came to unreasonable conclusions and erred in the manner in which it purported to consider a change of circumstances in the country of origin.

Held by Finlay Geoghegan J. in granting leave: That there were reasonable and weighty arguments that the alleged failure to bring certain country of origin information to the attention of the applicant amounted to a breach of s. 16(8) of the 1996 Act and the applicant’s right to fair procedures in the context of the appeal hearing before the RAT. Furthermore, the applicant established substantial grounds for contending that the conclusion reached by the RAT that the applicant would receive treatment for HIV in his country of origin was unreasonable or irrational. There were also substantial grounds for contending that the RAT failed to consider certain claims of the applicant and erred in law in the manner in which it purported to assess and consider a change of circumstances in the country of origin in relation to the position for persons with HIV/AIDS.

Reporter: L.O’S.

JUDGMENT of

Ms. Justice

1 Finlay Geoghegan delivered on the 11th day of May, 2007.

2 This judgment is circulated in redacted form to avoid identification of the parties

3 The applicant is a national of Nigeria. He arrived in the State on the 10^th February, 2003 and made an application for a declaration of refugee status on the 11^th February, 2003. The application was processed by the office of the Refugee Applications Commissioner with interview in the normal manner and a report issued under s. 13(1) of the Refugee Act 1996 on the 8^th July, 2003, recommending that he not be granted a declaration of refugee status. He served a notice of appeal from that recommendation to the Refugee Appeals Tribunal on the 28^th August, 2003.

4 The applicant's claim for refugee status was based upon an alleged well founded fear of persecution by reason of his religion. He is a Christian and claims to have been living in Kaduna and to have been subject to persecution by Muslim extremists in 2002.

5 The applicant's wife came to the State in December, 2002. She gave birth to their daughter V. in the State in 2002.

6 Prior to the first hearing of the applicant's appeal before the Tribunal, it was disclosed that both he and his wife were HIV positive. Their daughter V. was diagnosed shortly after her birth with HIV infection, which rapidly progressed to AIDS. The applicant and his wife are under medical care, as is their daughter, who has been stabilised on what is described as "a complex therapeutic regimen".

7 Following the disclosure and procurement of medical reports, additional grounds of appeal dated 15^th February, 2004, were lodged claiming a well founded fear of persecution by reason of the applicant's membership of a particular social group, namely persons suffering from HIV. It was claimed that such persons are subjected to denial of fundamental rights including the right to essential medical care and to discrimination amounting to persecution in Nigeria. Further, that there was a significant risk that his daughter would die if returned to Nigeria and that the essential treatment and monitoring and long term follow-up required by the applicant and his wife would not be available to them in Nigeria.

8 There was an initial oral appeal hearing in 2004 and a decision issued by a letter dated the 18^th May, 2004, refusing the applicant's appeal. The applicant challenged that decision by way of an application for judicial review and it appears from his grounding affidavit herein that such application was compromised on terms favourable to him resulting in his appeal being remitted for fresh adjudication by a different Tribunal Member.

9 The further oral hearing was scheduled before a new Tribunal Member on the 7^th March, 2005 and certain additional submissions, legal authorities and country of origin information was submitted in advance of and at the time of the hearing.

10 By letter of the 31^st August, a decision of the Tribunal Member dated the 29^th July, 2005, rejecting the applicant's appeal was furnished to him. That decision is a decision of Ms. Anne Tait and is the decision now sought to be challenged in these proceedings. It is not a decision of Ms. Elizabeth O'Brian who is named in the title to the proceedings. Nothing turns on this apparent error in the title. This was not adverted to by counsel for either party at the hearing before me. Subject to any submissions of counsel, it appears probable that an order should be made amending the title to this application.

Application for Leave

11 This is an application for leave to issue judicial review. It is subject to s. 5 of the Illegal Immigrants (Trafficking) Act2000. The applicant must therefore satisfy the court that there are substantial grounds for contending that the decision is invalid or ought to be quashed as required by s. 5(2)(b) of the Act of 2000. In accordance with the decision of the Supreme Court in The Illegal Immigrants (Trafficking) Bill 1999 [2000] I.R. 360, approving the formulation of Carroll J. in McNamara v. An Bord Pleanála (No. 1) [1995] 2 ILRM 125 that such grounds must be reasonable, arguable and weighty and must not be trivial or tenuous.

12 At the time of the appeal hearing in March, 2005, the applicant's claim for a declaration of refugee status was based on two separate and distinct grounds:-

13 (i) A claim to a well founded fear of persecution by reason of his religion; and

14 (ii) A claim to a well founded fear of persecution by reason of his (and his wife and daughter's) membership of a particular social group i.e. HIV sufferers.

15 Each of the above claims was rejected by the Tribunal Member. The applicant seeks leave on a number of grounds which relate to the procedure followed by the Tribunal Member and the principles applied and conclusions reached on each of the claims. Whilst there is some overlap in the reasoning of the Tribunal Member, having regard to the distinct basis of the claims and the nature of the challenges advanced, it appears appropriate to consider separately, whether the applicant has established substantial grounds in relation to each claim.

16 There is, however, one ground which relates to the entire decision and which is independent of the specific claims made. It is contended at para. B(ii) of the statement of grounds that the delay in giving the decision subsequent to the oral hearing is contrary to public policy, is a breach of the relevant appeals regulations and a breach of the applicant's rights under articles 6 and 14 of the ECHR.

17 To obtain leave under s. 5, the relevant ground must be a substantial ground for contending that the decision is invalid. It does not appear to me that the applicant has made out on the facts herein any legal basis for contending that the delay of approximately 5 months herein in issuing the decision is such that it, of itself, constitutes substantial...