S (E M) v Minister for Justice

• Jurisdiction: Ireland
• Judge: Mr. Justice Clarke
• Judgment Date: 21 December 2004
• Neutral Citation: [2004] IEHC 398
• Docket Number: [No. 369 JR/2003]
• Court: High Court
• Date: 21 December 2004

[2004] IEHC 398

THE HIGH COURT

[No. 369 JR/2003]

S (E M) v. MINISTER FOR JUSTICE

JUDICIAL REVIEW

BETWEEN

E.M.S.

APPLICANT

AND

THE MINISTER FOR JUSTICE EQUALITY AND LAW REFORM

RESPONDENT

Citations:

ILLEGAL IMMIGRANTS (TRAFFICKING) ACT 2000 S5(2)(b)

ILLEGAL IMMIGRANTS (TRAFFICKING) ACT 2000 S5

REFUGEE ACT 1996 S17(7)

R V SECRETARY OF STATE FOR THE HOME DEPARTMENT EX PARTE ONIBIYO 1996 2 AER 901

SINGH V SECRETARY OF STATE FOR THE HOME DEPARTMENT UNREP CA STEWART-SMITH 8.12.1995 (UK)

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

CONVENTION ON THE STATUS OF REFUGEES & STATELESS PERSONS 1951 (GENEVA CONVENTION)

XAYLE V REFUGEE APPLICATIONS COMMISSIONER & MIN FOR JUSTICE UNREP CLARKE 10.12.2004

KUTHYAR V MIN IMMIGRATION & MULTICULTURAL AFFAIRS 2000 FCA 110

O (A) V REFUGEE APPEALS TRIBUNAL & MIN FOR JUSTICE UNREP PEART 26.5.2004

O'KEEFFE V BORD PLEANALA 1993 1 IR 39

GASHI V MIN FOR JUSTICE & ORS UNREP CLARKE 3.12.2004

R V SECRETARY OF STATE FOR THE HOME DEPARTMENT EX PARTE NAZIR 1999 INLR 92

Synopsis:

IMMIGRATION

Asylum

Refusal of consent to allow re-application for refugee status - Standard to be applied by authorised officer - Health status of applicant - Geneva Convention as statutory interpretation aid - Whether arguable case - Whether standard of review higher than test in O'Keeffe v An Bord Pleaná la [1993] 1 I.R. 39 - Whether new claim sufficiently different - Whether HIV sufferer member of particular social group - Whether entitlement to refugee status on health grounds - Refugee Act 1996 (No 17), s 17(7) - Leave granted (2003/369JR - Clarke J - 21/12/2004) [2004] IEHC 398

S (E M) v Minister for Justice, Equality and Law Reform

Facts: The applicant sought leave to issue judicial review proceedings challenging a decision of the respondent refusing consent under s. 17(7) of the Act of 1996 to enable the applicant to make a further application for a declaration of Refugee Status. The applicant submitted that the decision was made on the basis of an erroneous view of the law, which led to a failure to take into account appropriate matters or if all proper matters were taken into account the decision was irrational.

Held by Clarke J. in granting leave to the applicant:

1. That it was at least arguable that the Minister took the view that the information provided by the applicant concerning treatment in relation to AIDS in South Africa raised purely a health issue and could not amount to an issue of discrimination sufficient to give rise to persecution for the purposes of the 1996 Act. If that was the view taken by the respondent then it was arguably wrong in law. Alternatively, if the respondent did apply his mind to the possibility that in certain circumstances discriminatory health treatment and other discrimination could amount to persecution on convention grounds then it was arguable that his decision in that respect was irrational.

2. That it was at least arguable that the Minister was obliged to give his consent under s.17(7) where it was demonstrated that there had been an error in the determination of the Refugee Appeals Tribunal which had potentially affected its judgment, even where that error may have been due to a mistake on the part of the applicant’s legal advisors.

Reporter L. O’S

Mr. Justice Clarke

1 In these proceedings the applicant seeks leave to issue judicial review proceedings which application for leave is, by virtue of s. 5(2)(b) of the Illegal Immigrants (Trafficking), Act2000required to be on notice to the respondent. Furthermore it is accepted by the parties that the higher threshold for the grant of such leave variously described as being equivalent to "reasonable", "arguable" and "weighty" but not "frivolous" or "tenuous" is applicable. In passing it should be noted that the question of the applicability of the notice and threshold requirements of s. 5 to this application has already been the subject of a determination of both this Court and the Supreme Court which resulted in a final determination to the effect that s. 5 did apply.

2 The applicant seeks to challenge a decision by the respondent Minister refusing consent under s. 17(7) of the Refugee Act,1996which consent was necessary to enable the applicant to make a further application for a declaration of Refugee Status under that Act. While the precise relief sought is expressed in a number of different ways in para. 4 of the intended statement grounding an application for judicial review and while the grounds are specified in some considerable detail in para. 5 of the same document, in substance the applicant contends that on a reading of the reasons given on behalf of the respondent Minister for the refusal concerned it is clear that the decision was made either:-

3 (a) On the basis of an erroneous view of the law which led to a failure to take into account appropriate matters; or

4 (b) If all proper matters were taken into account was irrational.

5 There was some debate in the course of the hearing as to the appropriate standard to be applied by the Minister in the case of an application for consent under s. 17(7) of the Refugee Act,1996. It was accepted by counsel for the respondent that the Minister could not resile from the test specified on his behalf in the refusal letter of 2^nd April, 2003. That test is stated to be as follow:-

"As you will be aware in coming to a decision as to whether to allow an applicant to make a further application for asylum, the deciding officer compares the new application with the application earlier rejected. Excluding material which is irrelevant or material on which the applicant could reasonably have been expected to rely in the earlier application, s/he decides if the new application is sufficiently different from the earlier application as to amount to an application warranting further investigation by the Office of the Refugee Applications Commissioner."

6 It should be noted that the decision, including the specification of the above test, was in fact taken by a deciding officer to whom the Minister's powers were delegated. Nothing in this case turns on that fact.

7 Counsel for the applicant suggests that the appropriate test is that adopted by the Courts in the United Kingdom where the case ofR v. The Secretary of State for the Home Department ex parte Onibiyo (1996) 2 A.E.R. 901 is a convenient starting point. In OnibiyoSir Thomas Bingham M.R. stated at page 497:-

"There is an overriding obligation to which states party to the convention commit themselves. The risk to an individual if a state acts in breach of this obligation is so obvious and so potentially serious that the courts have habitually treated asylum cases as calling for particular care at all stages of the administrative and appellate process."

"The obligation of UK under the Convention is not to return a refugee (as defined) to a country where his life or freedom would be threatened for any reason specified in the Convention. That obligation remains binding until the moment of a return. A refugee (as defined) has a right not to be returned to such a country, and a further right not to be returned pending a decision whether he is a refugee (as defined) or not."

At page 499 the judgment goes on to state:-

8 Based upon that logic the Master of the Rolls approved the dicta of Stewart-Smith L.J. inSingh (Manvinder) v. Secretary of State for the Home Department (8^th December 1995 CA) to the following effect:-

"in my opinion in deciding whether or not a fresh claim to asylum is made, it is necessary to analyse what are the essential ingredients of a claim to asylum and to see whether any of those ingredients have changed. A useful analogy is to consider a cause of action. In order to establish a cause of action a plaintiff must prove certain ingredients. How he proves them is a matter of evidence. If he changes the essential ingredients, he is asserting a different cause of action. What are the essential ingredients of a claim for asylum?. First that the applicant has a well founded fear of persecution; secondly that he has that fear in relation to the country from whence he came; thirdly that the source of persecution is the authorities of that state or, alternatively, some other group or local population where the actions of the group are knowingly tolerated by the authorities or that the authorities refused or are unable to offer effective protection (see the handbook of the United Nations High Commissioner for Refugees, para. 65); finally that the persecution is by reason of the applicant's race, religion, nationality or membership of a particular social or political group. In my view it is only if the applicant asserts that one or more of these essential ingredients is different from its earlier claim that it can be said to be a fresh claim."

9 Having agreed with the above passage Bingham M.R. went on to formulate an acid test as follows:-

"The acid test must always be whether comparing the new claim with that earlier rejected, and excluding material on which the claimant could reasonably have been expected to rely in the earlier claim, the new claim is sufficiently different from the earlier claim to admit of a realistic prospect that a favourable view could be taken of the new claim despite the unfavourable conclusion reached on the earlier claim."

10 Furthermore relevance was made to the speech by Lord Steyn inShah and Islam 1999 AC 629 at 639 where explanation is given for the relevance of other human rights instruments in interpreting the Geneva Convention.

11 There is a potential difficulty in applying the jurisprudence of the Courts of the United Kingdom in refugee matters to the Irish situation having regard to the difference in the manner in which the respective jurisdictions have legislated for the protection of those seeking refugee status (see my comments on the above issue in...