A (A) v Min for Justice

• Jurisdiction: Ireland
• Judge: Mr. Justice Cross
• Judgment Date: 31 January 2012
• Neutral Citation: [2012] IEHC 63
• Court: High Court
• Date: 31 January 2012

[2012] IEHC 63

THE HIGH COURT

[No. 910 J.R./2010]

A (A) v Min for Justice

[2012] IEHC 63

JUDICIAL REVIEW

IN THE MATTER OF THE REFUGEE ACT 1996 AND

IN THE MATTER OF THE ILLEGAL IMMIGRANTS (TRAFFICKING) ACT 2000

BETWEEN

A.A.

APPLICANT

AND

MINISTER FOR JUSTICE, EQUALITY AND LAW REFORM

RESPONDENT

REFUGEE ACT 1996 S17(7)

H (L) [GEORGIA] v MIN FOR JUSTICE UNREP COOKE 28.10.2011 2011 IEHC 406

K (G) & ORS v MIN FOR JUSTICE & ORS 2002 2 IR 418 2002 1 ILRM 401 2001/13/3557

O (H) & ORS v MIN FOR JUSTICE UNREP MCCARTHY 28.11.2008 2008/47/10195 2008 IEHC 405

MEADOWS v MIN FOR JUSTICE 2010 2 IR 701 2011 2 ILRM 157 2010 IESC 3

KEEGAN & LYSAGHT, STATE v STARDUST VICTIMS COMPENSATION TRIBUNAL 1986 IR 642 1987 ILRM 202

O'KEEFFE v BORD PLEANALA & O'BRIEN 1993 1 IR 39 1992 ILRM 237

O-A v MIN FOR JUSTICE UNREP CLARK 28.1.2011 2011 IEHC 78

IMMIGRATION LAW

Asylum

Readmission to process - Refusal - Judicial review - Unreasonableness - Irrelevant considerations - Country of origin information - Discrimination - Persons with HIV - Whether reasonable prospect of favourable review of new asylum claim - Whether new application potentially contained ingredients required to establish refugee status - Whether requirement to provide new information onerous - Whether respondent stated in mechanical fashion that new country of origin information considered - Whether evidence to counter respondent's statement that information had been considered - Whether discrimination described in county of origin information amounted to persecution - Whether decision affected by irrelevant consideration - Whether respondent obliged to analyse country of origin information in forensic manner - Whether previous decisions of Refugee Appeals Tribunal indicated asylum could be granted based on HIV status - LH v Minister for Justice [2011] IEHC 406 (Unrep, Cooke J, 28/10/2011), OH (a minor) v Minister for Justice [2008] IEHC 405 (Unrep, McCarthy J, 28/11/2008) and OOO-A v Minister for Justice [2011] IEHC 78 (Unrep, Clark J, 28/1/2011) followed - GK v Minister for Justice [2002] 2 IR 418, The State (Keegan) v Stardust Victims Compensation Tribunal [1986] IR 640 and O'Keeffe v An Bord Pleanála [1993] 1 IR 39 applied - Meadows v Minister for Justice [2010] IESC 3, [2010] 2 IR 701 considered - Relief refused (2010/910JR - Cross J - 31/1/2012) [2012] IEHC 63

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

1 1. This is an application for judicial review by way of an order of certiorari to take up and quash the decision of the respondent as notified by letter dated 16 ^th June, 2010, to refuse the applicant's application pursuant to s. 17(7) of the Refugee Act 1996, as amended.

2 2. Leave was given after a contested application by Hogan J. who on 8 ^th April, 2011, decided to limit the grounds to the following:-

"In determining to refuse the applicant's application pursuant to s. 17(7) Refugee Act 1996 the Minister acted unreasonably and reached unreasonable conclusions in that the assessment of the potential risk to the applicant (and hence the possibility of a favourable outcome in a fresh asylum claim) did not have proper regard to the evidence before the Minister."

History

3 3. The applicant is a Nigerian national born on 26 ^th May, 1971, who arrived in the state on 23 ^rd November, 2004, and made an initial application for asylum on that date.

4 4. The basis for this claim was that he risked persecution at the hands of his extended family for refusing to become "head priest" at their village shrine and because he was a homosexual and had suffered persecution on that basis and would continue to suffer persecution if he returned to Nigeria.

5 5. It was decided that the applicant should be refused refugee status and a deportation order was made in respect of the applicant on 27 ^th February, 2006. A subsequent application to the respondent to exercise his discretion to revoke the deportation order was refused.

6 6. These various decisions of the respondents were challenged by way of judicial review and the applicant was refused leave to challenge same.

7 7. The applicant was diagnosed HIV positive in December 2004, when he arrived in the State. This issue had not, however, been raised in the applicant's original application and he then made an application pursuant to s. 17(7) to the respondent to exercise his discretion to allow the applicant to be readmitted into the asylum system on that basis of his HIV status.

8 8. A judicial review application was compromised on 20 ^th May, 2010 and that judicial review application [2010 No. 281 J.R.] was settled by agreement whereby the applicant agreed to supplement a fresh application pursuant to s. 17(7) of the Refugee Act 1996, as amended and would be afforded a period of 28 days to make the application and that the said application would be confined to the applicant's HIV status.

9 9. It is this revised s. 17(7) application that was the subject of the ministerial decision in respect of which leave was granted by Hogan J. as referred to above and which is the subject of this application.

10 10. In granting the leave on the limited basis as outlined above, Hogan J. stated in this matter:-

"There remains the question of the consideration which the Minister actually gave to the possible risks facing the applicant. The Minister took the view that there was nothing in the relevant country of origin information which would suggest that the applicant was at risk of persecution by virtue of his HIV status. But is this is correct?"

Decision

11 11. The decision dated 3 ^rd June, 2010, to refuse the application to be readmitted to the process referred to the criteria to be applied by the Minister in such decisions as follows:-

"Is there a reasonable prospect of a favourable view being taken of a new asylum claim by the applicant despite the unfavourable conclusions reached earlier, having regard to the new information presented by his solicitors."

The relevant portion of the decision states as follows:-

"Country of origin information indicates that there are 2.6m people living with HIV in Nigeria. No case has been put forward which would suggest that the applicant would be at risk of persecution from the authorities of Nigeria. No case has been put forward which would suggest that he would be at risk of persecution from a group whose operations within the State are knowingly tolerated by the authorities or that the authorities are unable, unwilling or refuse to offer protection. No overriding circumstances that would differentiate Mr. A. from any other Nigerian man in his position has been put forward that would warrant further investigations by ORAC."

The Submissions

12 12. I have been furnished and have considered the affidavits herein and the exhibits as well as the submissions of both the applicant and the respondent and the authorities which they have kindly furnished in book form.

13 13. Mr. Saul Woolfson, B.L., on behalf of the applicant argued that the task facing the Minister was not to decide whether or not the applicant had demonstrated that he would be successful as a matter of probability in any future application rather whether he had demonstrated new issues of substance showing some reasonable prospect of a favourable decision.

14 14. Mr. Woolfson argued that the applicant had in the COI information furnished documentary details of discriminatory treatment of HIV suffers in Nigeria including discrimination from employees of the State, in hospitals and other State institutions as well as a certain failure of the State to protect persons with HIV.

15 15. Mr. Woolfson also indicated that the COI documentation indicated that the RAT had in previous cases allowed refugee status on the basis of HIV status and discrimination and accordingly that the decision of the respondent was to the effect that there was no basis for any grounds of persecution was irrational.

16 16. Mr. Woolfson also submitted that the Minister merely by...