A. (A.) v Minister for Justice, Equality & Law Reform

• Jurisdiction: Ireland
• Judge: MS. JUSTICE M. H. CLARK,
• Judgment Date: 28 October 2009
• Neutral Citation: [2009] IEHC 436
• Court: High Court
• Docket Number: [2006 No. 344 JR]
• Date: 28 October 2009

A (A) v Min for Justice

JUDICIAL REVIEW

BETWEEN

A.A.

APPLICANT

AND

THE MINISTER FOR JUSTICE, EQUALITY AND LAW REFORM

RESPONDENT

[2009] IEHC 436

[No. 344 J.R./2006]

THE HIGH COURT

IMMIGRATION

Asylum

Further application on basis of fresh evidence - Refusal - Discretion - Whether Minister unlawfully fettered his discretion in refusing to allow re-application for refugee status - Test - Criteria for re-admission of claim - Status as HIV positive - Medical reports - Whether applicant's HIV condition previously considered as basis and reason for fear of persecution - Whether correct test applied in refusing application - Matters to be considered - New information not previously fully considered - Whether discretion exercised in accordance with natural and constitutional justice - Prohibition against refoulement - R v Secretary of State for the Home Department, ex parte Onibiyo [1996] 2 WLR 490, [1996] 2 All ER 901; COI v Minister for Justice [2007] IEHC 180, [2008] 1 IR 208; KCC v Minister for Justice [2007] IEHC 176, [2008] 1 IR 219; Ladd v Marshall [1954] 1 WLR 1489, [1954] 3 All ER 745; Singh v Secretary of State for the Home Department(Unrep, HL, 8/12/2005); N v United Kingdom (2008) 47 EHRR 39 and Muresan v Minister for Justice [2004] 2 ILRM 364 considered - EMS v Minister for Justice [2004] IEHC 398, (Unrep, HC, Clarke J, 21/12/2004) followed - Refugee Act 1996 (No 17), ss 5, 11 and 17(7) - Immigration Act 1999 (No 22), s 3(11) - Convention on the Status of Refugees 1951, art 33 - Relief granted but no order as to costs made (2006/344JR - Clark J - 14/10/2009) [2009] IEHC 436

A (A) v Minister for Justice

Facts: The applicant sought judicial review of a decision of the Minister to refuse consent to the re-admission of the applicant to the asylum process. The applicant alleged that the respondent erred in law and applied an incorrect test having regard to the criteria to be met by an applicant in relation to the re-admission of a claim for refugee status based on new information. The applicant applied for asylum in 2004 claiming fear of persecution for refusing to become a high priest of a shrine in Nigeria and because his homosexuality was uncovered in a distressing fashion in 2003. The application was refused. An application was made in 2008 pursuant to s. 17(7) Refugee Act 1996, as amended, indicating that the applicant was suffering from HIV. The Minister, arriving at a negative decision, had posed the question as to whether this documentation could have been produced during the course of he processing of the asylum claim with due diligence and the Minister had determined that this would have been possible.

Held by Clark J. that the applicant would succeed in quashing the decisions of the Minister on the grounds that he erred in law and acted ultra vires and in breach of his right to fair procedures. The Court would make no order as to costs. The Minister applied an incorrect test as to the matters requiring consideration where an applicant sought consent under s. 17(7). The Minister should have approached his assessment of a s. 17(7) application more widely. The application should not have been rejected solely on this basis. The Minister should have considered more broadly threats faced to the life of the applicant and the time period between 2004 and 2008, the date of diagnosis to the date of the assertion of the HIV status, should have been considered. The matter would be remitted for further consideration.

Reporter: E.F.

REFUGEE ACT 1996 S17(7)

REFUGEE ACT 1996 S11

IMMIGRATION ACT 1999 S3

REFUGEE ACT 1996 S5

IMMIGRATION ACT 1999 S3(11)

R v SECRETARY OF STATE FOR THE HOME DEPT, EX PARTE ONIBIYO 1996 2 WLR 490 1996 2 AER 901 1996 QB 768

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

I (CO) v MIN FOR JUSTICE 2008 1 IR 208 2007/29/5917 2007 IEHC 180

C (KC) v MIN FOR JUSTICE 2008 1 IR 219 2007/8/1468 2007 IEHC 176

CONVENTION ON THE STATUS OF REFUGEES & STATELESS PERSONS 1951 (GENEVA CONVENTION) ART 33(1)

CONVENTION ON THE STATUS OF REFUGEES & STATELESS PERSONS 1951 (GENEVA CONVENTION) ART 33

LADD v MARSHALL 1954 1 WLR 1489 1954 3 AER 745

SINGH v SECRETARY OF STATE FOR THE HOME DEPT UNREP 8.12.1995 1995 EWCA CIV 53

MURESAN v MIN FOR JUSTICE & ORS 2004 2 ILRM 364 2003/38/9156

ILLEGAL IMMIGRANTS (TRAFFICKING) ACT 2000 S5(2)

CONVENTION ON THE STATUS OF REFUGEES & STATELESS PERSONS 1951 (GENEVA CONVENTION) ART 3

N v UNITED KINGDOM 2008 47 EHRR 39 25 BHRC 258

1 This is an application for judicial review of the decision of the Minister for Justice, Equality and Law Reform ("the Minister"), dated the 23 ^rd March, 2006, to refuse to consent to the re-admission of the applicant to the asylum process pursuant to s. 17(7) of the Refugee Act 1996, as amended. The applicant is seeking inter alia an order of certiorari quashing that decision. Leave was granted by Birmingham J. on the 4 ^th June, 2008. Although the leave was granted on four grounds the primary ground with which this judgment is concerned is:-

"A. The Respondent erred in law and has applied an incorrect test having regard to criteria to be met by an applicant in relation to the re-admission of a claim for refugee status based on new information and / or information not previously available."

2 The substantive hearing took place at the Kings Inns, Court No. 1, on the 7 ^th May, 2009. Mr. Saul Woolfson B.L. appeared for the applicant and Ms. Ann Harnett O'Connor B.L. appeared for the respondent.

Section 17(7) of the Refugee Act 1996

3 Section 17(7) of the Refugee Act 1996 provides as follows:-

"A person to whom the Minister has refused to give a declaration may not make a further application for a declaration under this Act without the consent of the Minister."

4 Thus s. 17(7) enables a person who has been refused a declaration of refugee status to apply to the Minister for his consent to make a further application for a declaration of refugee status. The section is silent as to procedure and imposes no express restrictions on the Minister's discretion to grant or refuse his consent. The question for the Court in this case is, in essence, whether the Minister's discretion under s. 17(7) is fettered and if so, how and to what extent.

Background

5 The applicant is a national of Nigeria, born in 1971. He claims to be university-educated. In 2004 he made an application for asylum to the Refugee Applications Commissioner claiming to fear persecution on two grounds - first, at the hands of his relatives' for refusing to become high priest of the shrine in their village and secondly, because his homosexuality was uncovered after he was raped during a robbery at his home in 2003. The applicant was represented by the Refugee Legal Service (RLS) during the asylum process. The Commissioner recommended that the applicant should not be granted a declaration of refugee status and that recommendation was affirmed on appeal to the Refugee Appeals Tribunal.

6 The Minister refused to grant the applicant a declaration of refugee status and in September, 2005 informed the applicant that he was proposing to deport him. The applicant engaged a firm of private solicitors who made representations to theMinister on his behalf as to why he should be permitted to remain in the State. At that point, it was disclosed that he had been diagnosed as being HIV positive in December, 2004, just days before his s. 11 interview with ORAC. ¹ A number of medical reports was furnished confirming the diagnosis. The Minister's agents examined the applicant's file pursuant to s. 3 of the Immigration Act 1999 and s. 5 of the Refugee Act 1996. It was determined that the humanitarian grounds on file were not such as to conclude that he should not be returned to Nigeria and that no issues arose in relation to refoulement. The file was re-examined after the applicant's solicitors submitted two further medical reports but the same conclusion was reached and the applicant was informed in February, 2006 that the Minister had signed a deportation order. The applicant has been refused leave to challenge that decision by way of judicial review.

7 The applicant engaged a further firm of private solicitors and on the 16 ^th March, 2008 they made an application under s. 17(7) of the Act of 1996, seeking the Minister's consent to make a further application for a declaration of refugee status on his behalf. While additional materials were furnished in relation to his original claim, the primary basis for the s. 17(7) application was as follows:-

"Our client's status as HIV positive and his fear of persecution by reason of his membership of the social group comprising such persons. Persons who are HIV positive in Nigeria are subjected to stigma, discrimination and harassment within society amounting to persecution and are also subject to discrimination in the failure by the state and its policies and practice to provide essential life prolonging healthcare and treatment."

8 The applicant's solicitors furnished a number of medical reports in support of the s. 17(7) application; certain of those reports had previously been considered by the

1 ¹ The applicant claims that after his oral hearing in March, 2005 he furnished the Tribunal Member with a letter from Beaumont Hospital confirming his HIV status. This is disputed by the respondents.

Minister at the leave to remain stage but a number of them had not. It was submitted that the applicant's HIV condition had not been previously been considered as a basis and reason for his fear of persecution. It was stated that his fear arises in the context of the discriminatory policy adopted by the Nigerian State in the manner in which it fails to make available essential, appropriate and necessary treatments for HIV sufferers and by reason of endemic societal discrimination and stigma and...