Ireland - High Court, 22 October 2010, J.E. v Minister for Justice, Equality and Law Reform [2010] IEHC 372

Facts:

The applicant in this case was a Nigerian national who arrived in Ireland in July 2004. He made an application for refugee status on the basis that he was at risk of persecution as a Christian from Kaduna in Northern Nigeria where a number of riots had recently taken place. He was subsequently diagnosed as suffering from HIV/Aids and had been receiving treatment for the condition in the country since.  The application for refugee status was refused. He then applied for ‘humanitarian’ leave to remain on the basis that in addition to the termination of his on-going treatment in Ireland, if returned to Nigeria the difficulties he would encounter both with regard to access to equivalent treatment and the stigma and discrimination, particularly in the health service, were such that there was a threat to his life or freedom contrary to section 5 of the Refugee Act 1996 and/or a risk of torture or inhuman or degrading treatment contrary to Art 3 of the European Convention on Human Rights. He was granted leave by the High Court (Cooke J.) on the grounds that, having accepted that the applicant suffered from and was being treated for HIV/Aids, the Minister failed to consider the applicant’s claim in respect of the prohibition on refoulement and that the order failed to disclose the reason for the finding that the deportation was not contrary to section 5 of the Refugee Act 1996, as amended. Section 5 of the Refugee Act, 1996, as amended, prohibits refoulement in the following terms:

“ 5 (1) A person shall not be expelled from the State or returned in any manner whatsoever to the frontiers of territories where, in the opinion of the Minister, the life or freedom of that person would be threatened on account of his or her race, religion, nationality, membership of a particular social group or political opinion. "

Decision & reasoning:

The Court (Cooke J.),  in refusing the substantive relief sought, held:

1. The obligation on the Minister to give reasons for a decision does not involve the need for any detailed or narrative statement.

2. That an inferior standard of medical treatment resulting from discriminatory attitudes towards a particular social group does not amount to persecution for a Convention reason unless it was associated with an unwillingness or inability on the part of the relevant authorities to protect members of the group from such ill-treatment.

3. That it was only in exceptional cases that stigmatisation and discrimination on the part of even a large number of individuals constituted ill-treatment which comes within the scope of the prohibition in section 5 of the Refugee Act 1996 or the protection of Art 3 of the European Convention on Human Rights and probably would require a minimum level of severity and clear evidence that the ill-treatment was so endemic and institutionalised as to raise a presumption that it was official policy or condoned by state authorities.

Outcome:

Certiorari refused. Judicial Review dismissed.

Observations/comments:

This case involved a different approach to question of protection for persons with HIV/AIDS. The applicant claimed that he would suffer discrimination and have difficulty accessing medical treatment because he is a member of a particular social group (persons with HIV/AIDS). Country of origin information clearly revealed that there was a difficulty with Nigerian healthcare workers and even Doctors who simply refused to deal with persons with HIV/AIDS. The Court found that this ill-treatment was not so endemic (or institutionalised) as to raise a presumption that it was official policy or condoned by the State authorities.