Judgment Title: A.A -v- Minister for Justice, Equality amd Law Reform
Neutral Citation:  IEHC 63
High Court Record Number: 2010 910JR
Date of Delivery: 31/01/2012
Court: High Court
Composition of Court:
Judgment by: Cross J.
Status of Judgment: Approved
Neutral Citation 2012 (IEHC 63)
THE HIGH COURT
[2010 No. 910 J.R.]
IN THE MATTER OF THE REFUGEE ACT 1996 AND IN THE MATTER OF THE ILLEGAL IMMIGRANTS (TRAFFICKING) ACT 2000
MINISTER FOR JUSTICE, EQUALITY AND LAW REFORM
JUDGMENT of Mr. Justice Cross delivered on the 31st day of January, 2012
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 16th June, 2010, to refuse the applicant's application pursuant to s.17(7) of the Refugee Act 1996, as amended.
2. Leave was given after a contested application by Hogan J. who on 8th April, 2011, decided to limit the grounds to the following:-
3. The applicant is a Nigerian national born on 26th May, 1971, who arrived in the state on 23rd November, 2004, and made an initial application for asylum on that date.
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. It was decided that the applicant should be refused refugee status and a deportation order was made in respect of the applicant on 27th February, 2006. A subsequent application to the respondent to exercise his discretion to revoke the deportation order was refused.
6. These various decisions of the respondents were challenged by way of judicial review and the applicant was refused leave to challenge same.
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. A judicial review application was compromised on 20th 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. 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. In granting the leave on the limited basis as outlined above, Hogan J. stated in this matter:-
11. The decision dated 3rd 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:-
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. 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. 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. 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. Mr. Woolfson also submitted that the Minister merely by reciting that he had seen and taken into account the COI documentation had not performed his functions. What was required was an analysis of the documents to show that he had properly considered the COI information. Mr. Woolfson also submitted that the Minister ought not to have concluded that Mr. A. could not be differentiated from any of the other Nigerian men in his position and the insertion of this sentence in the operative portion of the decision indicated not just an irrelevant factor but also suggested that the Minister was using that irrelevant factor as one of the grounds that he was refusing the relief sought.
The Respondent's Arguments
18. Ms. Harnett O'Connor further contended that in respect of the cases referred to in the COI information, only two of these refer to Nigeria, one of which has nothing to do with HIV status. In the other case [69/321/03BC] it was submitted that the applicant's claim was not allowed primarily because of discrimination/persecution because of the applicant's HIV status but on other grounds as follows:-
"The applicant stated at interview that she had been raped whilst staying with her parents in XXX but this assertion was not queried subsequently. The applicant's solicitor Mr. XXXX was required in his written submissions to inform the Tribunal that Mrs. XXXXXX and her baby daughter born in Ireland had both been diagnosed as HIV positive. I can only summarise that this condition resulted from the rape of the applicant in XXXX. If this conclusion is correct then I must ask if the applicant has been rejected by her husband and I expect that this may be the case. This may explain why, if her husband is a doctor she did not receive the support and protection to which she was entitled. Indeed it is possible that there is no circumcision problem and that the issue of further Christian/Muslim rioting is no more than a remote possibility. For the applicant, what happened in XXXX is the issue and this, in my view is the reason why she has come to this country. It seems to me that this applicant has been rejected by her family and, if returned to Nigeria would be forced to spend her life with her infected daughter as virtual outcasts in a society where is notable demarcation between those who may live within society and those who must live beyond the pale."
19. Accordingly, Ms. Harnett O'Connor indicated that the real core of the decision had nothing to do, or very little to do with the applicant's HIV status but rather the fact that she had been raped, had been made pregnant and had therefore gone outside the pale.
20. Ms. Harnett O'Connor conceded that in the COI information there is evidence of discrimination but not so that it would amount to persecution. Accordingly, it was open to the Minister to decide what he did and the way he did so.
23. In G.K. v. Minister for Justice  2 I.R. 418 at 426 and 427, Hardiman J. stated:-
25. I do not consider that the fact that the decision of O.H. v Minister for Justice, Equality and Law Reform (as cited above) or the earlier decision of Hardiman J. in the G. K. v. Minister for Justice (as cited above) were delivered prior to the decision of the Supreme Court in Meadows v. Minister for Justice, Equality and Law Reform (21st January, 2010) is at all relevant.
26. While the decision of The State (Keegan) v. Stardust Victims Compensation Tribunal  I.R. 640 and O' Keeffe v. An Bard Pleanala  1 I.R. 39, have been clarified by the Meadows decision to include questions of proportionality, the test in relation to the judicial review still remains the tests as set out in Keegan and in O'Keeffe i.e. unreasonableness or irrationality - see O.O.O-A (& Ors) v. Minister for Justice, Equality and Law Reform, Clark J., 28th January, 2011 ( 348 J.R.).
27. There is, in fact, no evidence to counter the Minister's statement that he did consider the COI documents and indeed reference to the number of HIV suffers in Nigeria is supportive of the claim that he indeed considered these documents.
28. I accept that the COl documentation presents a number of grounds in which someone with HIV status may be discriminated against in Nigeria. The discrimination is not from the State though some State employees e.g. in hospitals may have discriminated from time to time.
29. The issue before the Minister in this regard was whether this discrimination amounts or could amount to persecution (as sometimes discrimination may do so).
30. I further hold that the statement by the Minister in his decision that:-
31. I am not, however, of the view, that by including this statement in his decision, the remainder of the decision has been in any way polluted or affected by this irrelevant consideration.
32. The Minister has stated that he has considered all the COI documents and the decision of McCarthy in O.H. (as cited above) is indicative that is sufficient in the absence of any evidence to the contrary.
33. I believe that the statement by the Minister to the effect that there are 2.6m people living with HIV in Nigeria is, as was stated by Ms. Harnett O'Connor accurately referable to the COI documentation and is indicative of the fact that the Minister did indeed consider it.
34. I do not believe that any interpretation of the Meadows decision suggests that the Minister is obliged in making his decision to go through the COI documents and analyse them in any forensic manner.
35. It is sufficient that he has considered the documents if his statement that the applicant would not be at risk of persecution is not irrational or unreasonable.
36. In my view, this statement that "no case has been forward would suggest that the applicant would be at risk from persecution from the authorities of Nigeria" is not an irrational or unreasonable statement and indeed, it was entirely reasonable and rational for the Minister to conclude that the level of discrimination referred to in the documents did not and could not amount to persecution in this particular case.
37. I am further of the view that the previous decisions of the RAT which in certain circumstances indicated that discrimination because of HIV status of an applicant could result in a favourable refugee declaration are not relevant to this application as these decisions to do not relate to Nigeria and the situation therein. The one decision referred to that seemed to relate to HIV and Nigeria was not (as discussed above) based on the HIV status of the applicant but rather on the other matters considered.
38. The answer for the purposes of a judicial review application to the rhetorical question posed by Hogan J. in his granting of leave in this case: "But is this correct?"
(b) There is no evidence to suggest that he did not.
(c) There is some corroborative evidence to indicate that indeed he did consider the documents.
(d) The court having examined and been referred to the COI documents finds that there is nothing in the COI documents that would suggest that the decision that the applicant was not at risk of persecution by virtue of his HIV status was irrational or unreasonable.