High Court dismisses judicial review of deportation order regarding HIV/AIDS patient and Article 3 ECHR claims.

Neutral Citation Number: [2010] IEHC 372

THE HIGH COURT

JUDICIAL REVIEW

2008 529 JR

BETWEEN/

J. E.

APPLICANT

AND

THE MINISTER FOR JUSTICE, EQUALITY AND LAW REFORM

RESPONDENT

JUDGMENT of Mr. Justice Cooke delivered the 22nd day of October, 2010.

1. By order of this Court of 25th March, 2010, leave was granted to the applicant to seek judicial review of a deportation order made

in respect of the applicant by the respondent on 10th April, 2008. Leave was granted to seek, in particular, an order of certiorari

quashing that order by reference to two specific grounds as follows:

(a) Having accepted that the applicant suffers from and is being treated for HIV/Aids, the respondent failed to consider,

to analyse and to determine the applicant’s claim that his deportation to Nigeria would, in the light of the country of origin

information submitted to him or recited in the file note containing the purported reasons for the decision, violate the

prohibition on refoulement in s. 5 of the Refugee Act 1996 and/or Article 3 of the European Convention on Human Rights;

and

(b) It fails to disclose the salient or any reason for the finding that the deportation “is not contrary to s. 5 of the Refugee

Act 1996 (as amended)”.

2. As indicated in an extempore judgment given on the same day, the Court granted leave with some hesitation but considered that

the issues embodied in those grounds warranted more deliberate consideration at a substantive hearing having regard to what

appeared to be a potential similarity between the approach adopted in the “Examination File Note” which supported the order and that

which formed the basis of the judgments of the Supreme Court in the then recently decided appeal of Meadows v. Minister for

Justice, Equality and Law Reform of 21st January, 2010. The issues raised by these grounds arise in the following circumstances.

3. The applicant is a failed asylum seeker who had arrived in the State in July 2004. He was subsequently diagnosed as suffering from

HIV/Aids and has been receiving treatment for the condition in this country since. Following the failure of his application for asylum, a

deportation order was made against him on 15th September, 2005. That order was subsequently revoked and the applicant was given

a further opportunity to submit representations against deportation. This was done on his behalf by his solicitor on 3rd July, 2007. The

order which is now contested was then made on 10th April, 2008.

4. The issues arise, accordingly, out of the fact that the applicant suffers from this particular medical condition and are based upon

the proposition that the termination of the treatment which he currently receives for it in this jurisdiction combined with the

conditions he would face in Nigeria both as regards access to equivalent treatment and, more importantly, the allegedly pervasive

attitude of stigmatisation and discrimination he would encounter, give rise to a threatened infringement of his rights under s.5 of the

1996 Act and/or Article 3 of the ECHR. These possible infringements, it is argued, have been inadequately considered by the Minister

in evaluating the representations made against the making of a deportation order. Counsel for the applicant has acknowledged that as

a matter of law, a mere discrepancy in the standard of medical treatment available in a country of origin cannot except in very rare

circumstances, constitute a ground for challenge to an order of deportation. (The exceptional case which can give rise to a violation

of Article 3 of the ECHR is illustrated by the judgment of the European Court of Human Rights in D. v. United Kingdom where it was

found that an applicant who was terminally ill would be “exposed to a real risk of dying under the most distressing circumstances”

such that the deportation would amount to inhuman treatment.) In the present case, however, it is not argued that the applicant’s

condition is such that his actual deportation to Nigeria would constitute a threat to his life.

5. The present claim is not, accordingly, grounded upon a simple proposition that the treatment available to the applicant in Nigeria is

inferior but upon a more specific procedural point. It is claimed that in the representations made against the deportation order,

extensive country of origin information was put forward to show that the applicant if returned would be subjected to stigma and

discrimination including discriminatory treatment at the hands of personnel in the health and medical services there and that this

would constitute a threat to his life or freedom which required the Minister to consider whether the prohibition on refoulement in s. 5

of the 1996 Act would amount to inhuman or degrading treatment and thus an infringement of the protection afforded by Article 3 of

the Convention. Secondly, an argument based upon a failure to state any or any adequate reason is advanced by analogy with the

Meadows case in that it is alleged the Examination of File Note, while acknowledging the evidence as to stigmatisation and

discrimination prevalent in Nigeria, gives no reason or explanation for the conclusion that the prohibition on refoulement does not

apply.

7. Before dealing with these questions it is, perhaps, no harm to recall that, according to the case law, the basis upon which a

challenge can be raised to a deportation order is limited. The approach of the Court was described in the judgment of Clarke J. of 9th

November, 2005 in Kouaype v MJELR, [2005] I.E.H.C. 380 at para. 5.1 as follows:

“For all of the above reasons it seems to me that the grounds upon which a decision by the Minister to make a

deportation order in the case of a failed asylum seeker can be challenged are necessarily limited. Without being

exhaustive it seems to me that it would require very special circumstances for such a review to be possible unless it can

be shown that:

(a) The Minister did not consider whether the provisions of s. 5 applied. Where the Minister says that he did so

consider and in the absence of any evidence to the contrary this will be established;

(b) The Minister could not reasonably have come to the view which he did. ….

(c) The Minister did not afford the applicant a statutory entitlement to make representations on the so-called

‘humanitarian grounds’, or,

(d) The Minister did not consider any such representations made within the terms of the statute, or the factors set

out in s. 3 (6) of the 1999 Act or (possibly) the Minister could not reasonably have come to the conclusion he did in

relation to those factors.”

8. There is no doubt that in the representations made on behalf of the applicant on 3rd July, 2007, a body of material was put before

the Minister in support of the proposition that sufferers from HIV/Aids faced considerable difficulties in Nigeria. This was put forward in

support of the proposition: “In view of the foregoing it is respectfully submitted that our client’s deportation to Nigeria would be in

breach of Article 3 of the European Convention on Human Rights and Article 40.3.2 of the Irish Constitution”. (No direct mention was

made of s. 5 of the Refugee Act 1996).

9. The memorandum entitled “Examination of File under s. 3 of the Immigration Act 1999, as amended” (“the File Note”,) which

supplements the statement of the Minister’s reasons for making the deportation order given in the letter of notification dated 16th

April, 2008, deals at its very outset with the prohibition of refoulement in s. 5 of the 1996 Act. It does so primarily by reference to

the background to the asylum claim and to the more obvious threats to the applicant’s life and well-being in the context of the

account he originally gave in his asylum claim arising out of the alleged violence experienced by Christians at the hands of Muslims and

his fear of Sharia courts and their punishments. Significantly, however, within the section devoted to consideration of the prohibition

of refoulement in s. 5, the memorandum contains some five pages devoted to the consultation of information on attitudes to and the

treatments available for HIV/Aids sufferers in Nigeria. The overall effect of this information coincides with that in the material quoted

in the representations. It confirms, for example, the existence of evidence as to discrimination against people with Aids and the

difficulties they experience in obtaining access to basic prevention, care, support and treatment services. At the end of the section

the author states: “Having considered all the facts of this case, I am of the opinion that repatriating Mr. E. to Nigeria is not contrary

to s. 5 of the Refugee Act 1996, as amended, in this instance.” Clearly, this conclusion covers all of the facts dealt with in the

preceding fifteen pages of the memorandum, including the material relating to the conditions faced by HIV/Aids sufferers in Nigeria. It

cannot therefore be argued that there has been a failure as such to address that material as required by s. 3(6) (i) of the Act of

1999 nor to do so by reference to the prohibition in s. 5 or the protection afforded by Article 3. Although no express invocation of s.5

was made in the representations of 3rd July, 2007, it is in that context that the material has been covered in the file note.

10. The file note then proceeds to consider the possible application of s. 4 of the Criminal Justice (UN Convention Against Torture)

Act 2000 followed by the headings required to be considered under s. 3 (6) (h), (i) and (g) of the Immigration Act 1999. The

consideration of the rights of the applicant under Article 8 of the European Convention on Human Rights as regards private life and

family life are then set out. The memorandum ends with an overall conclusion and a recommendation in these terms:

“J. E.’s case was considered under s. 5 of the Refugee Act 1996, as amended, and under s. 3 (6) of the Immigration Act

1999, as amended. Refoulement was not found to be an issue in this case. Consideration was also given to Jude Edoas’s

rights under Article 8 of the ECHR. In addition no issue arises under s. 4 of the Criminal Justice (UN Convention Against

Torture) Act 2000. Therefore, on the basis of the foregoing, I recommend that the Minister, having also had regard to s. 3

(1) of the European Convention on Human Rights Act 2003, in making his decision, signs a deportation order in respect of

Mr. J. E..”

11. As indicated by the Court when granting leave, there is at least a superficial similarity between the approach adopted in the

present File Note in expressing a conclusion and that which was before the Supreme Court in the Meadows case. It is clear from the

judgments in that case that the applicant had made representations to the Minister in accordance with s. 3 (3) (b) of the 1999 Act

which brought into play the possible application of the prohibition on refoulement on the basis that she claimed to risk being subjected

to female genital mutilation (“FGM”), if repatriated. In other words, information was put before the Minister raising a possible

implication of torture or serious assault in the sense of section 5.

12. In his judgment, Murray C.J. said:

“… before making a deportation order the Minister is required to consider in the circumstances of each particular case

whether there are grounds under s. 5 which prevent him making a deportation order. In cases where there is no claim or

factual material put forward to suggest that a deportation order would expose the deportee to any of the risks referred to

in s. 5 then no issue as regards refoulement arises and the decision of the Minister with regard to s. 5 considerations is a

mere formality and the rationale of the decision will be self evident. On the other hand, if such material has been

presented to him by or on behalf of the proposed deportee, as the case here, the Minister must specifically address that

issue and form an opinion.”

13. In the earlier part of his judgment the Chief Justice records material contents of the decision under examination in that case

including the text of the letter communicating and enclosing the Minister’s decision to make a deportation order. It contained the

sentence: “In reaching this decision the Minister has satisfied himself that the provisions of s. 5 (prohibition of refoulement) of the

Refugee Act 1996 are complied with in your case.” Exactly the same sentence appears in the second paragraph of the corresponding

letter in the present case dated 16th April, 2008. Indeed, the fuller text of the letter quoted by the Chief Justice is replicated in

virtually the same words in the latter letter and also in the corresponding letter considered by the Supreme Court in the case of F.P.

v. MJELR [2002] 1 I.R. 164 (at 171), where the court found that the reasons thus given were adequate and sufficiently

understandable. (See the judgment of Hardiman J. on behalf of the court at 174-175.)

14. The Meadows judgment of the Chief Justice also gives the summary of the information relating to the claim based upon the threat

of FGM and quotes the conclusion at the end of the file note: “[The applicant’s] case was considered under s. 5 of the Refugee Act

1996 and s. 3 (6) of the Immigration Act 1999. Refoulement was not found to be an issue in this case.” Murray C.J. said:

“In my view the decision of the Minister in the terms couched is so vague and indeed opaque that its underlying rationale

cannot be properly or reasonably deduced. The recommendation with which the memorandum submitted to the Minister

with the file is not helpful and adds to the opaqueness of the decision. That states that ‘refoulement was not found to be

an issue in this case’. This decision is open to multiple interpretations which would include: (i) that refoulement was not

an issue and therefore it did not require any discretionary consideration. On the other hand, it may well be that the

Minister did consider refoulement was an issue and that there was evidence of the appellant in this case being subject to

some risk of being exposed to FGM but a risk that was so remote that being subject to FGM was unlikely: alternatively, he

may have considered that while there was evidence put forward to suggest the appellant might be subjected to FGM that

evidence would be rejected as not being of sufficient weight or credibility to establish that there was any risk. The fact

remains that it is not possible to properly discern from the Minister’s decision the actual rationale of which he decided that

s. 5 of the Act had been ‘complied with’. Accordingly, in my view, there was a fundamental defect in the conclusion of the

Minister on this issue.”

15. Notwithstanding these apparent similarities of approach, however, the Court does not consider that this is an instance in which it

would be justifiable to quash the deportation order for a failure to state an adequate reason. In the first place, the Court is not

satisfied that there has been a material failure to give a reason for considering the prohibition in s. 5 to be inapplicable. Secondly,

even if there could be said to be doubt as to the adequacy of the explanation for rejecting the basis upon which Article 3 (and by

implication, s. 5,) had been invoked, the remedy of certiorari is at the discretion of the Court in a case of this nature and the Court is

satisfied that the information which the Minister was required to consider could not in any event have constituted a basis for an

opinion that the prohibition on refoulement was applicable or that Article 3 would be infringed.

16. As regards the first of these considerations, it is to be noted that quite apart from the conclusion to the File Note (see para 10

above,) and the content of the letter of 16th April, 2008, a direct conclusion in relation to all of the matters covered under the

heading of s. 5 is given at the top of its page 16: “Having considered all the facts of this case, I am of the opinion that repatriating

Mr. E. to Nigeria is not contrary to section 5, etc.”. (It is not apparent from the judgments in Meadows whether any similar comment

on the s. 5 analysis was contained in the File Note in that case.)

17. Section 5 (1) of the Act of 1996 prohibits the return of a person where “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”. Subsection (2) provides

that a person’s freedom “should be regarded as being threatened if, inter alia, in the opinion of the Minister, the person is likely to be

subjected to a serious assault (including a serious assault of a sexual nature)”.

18. The conclusion given at the top of page 16 of the File Note can only be construed, in the view of the Court, as the expression of

an opinion that repatriation of Mr. E. to Nigeria would not expose him to any threat to his life or freedom (including serious assault,)

on the basis that, as a sufferer from HIV/Aids, he is a member of a particular social group. To the extent that the representations

made on 3rd July, 2007, were treated in the memorandum as invoking both the protection of Article 3 and s. 5, the conclusion can

only be interpreted as a rejection of that claim on that basis. It is to be noted that the Meadows case was concerned with an

application for leave to seek judicial review, and the claim of exposure to a risk of FGM appears to have been addressed differently by

the Minister under s. 3 of the Act as compared with the reason given for rejecting it by the Refugee Appeals Tribunal. (See the

judgment of Fennelly J. at paragraph 17.) In those circumstances and because the “refoulement is not an issue” conclusion was open

to at least three possible interpretations, the rationale of the decision to deport was not apparent. As already noted above (see para.

7) by reference to the decision of Clarke J. in the Kouaype case, the Minister’s obligation to give reasons does not otherwise involve

the need for any detailed or narrative statement. In his judgment in Meadows, Murray C.J. cited the statement on this point by Keane

C.J. in Baby O. v. MJELR [2002] 2 I.R. 169 where the latter said:

“Section 5 of the Act of 1996 does not require the first respondent to give any notice to a person in the position of the

second applicant that he proposes to make a decision under that section: it simply requires the first respondent to satisfy

himself as to the refoulement issue before making a deportation order. … I am satisfied that there is no obligation on the

first respondent to enter into correspondence with the person in the position of the second applicant setting out detailed

reasons as to why refoulement does not arise. The first respondent’s obligation was to consider the representations made

on her behalf and to notify her of his decision: that was done, and accordingly, this ground was not made out.”

19. Similarly, in the present case, the obligation of the Minister was to consider whether the prohibition on refoulement under s. 5

(and/or a possible infringement of the protection accorded by Article 3 of the Convention) arose both generally by reference to

information available to him as to conditions at the deportation destination, and particularly, in the light of the information put before

him when that protection was invoked. While it is possibly desirable that the author of a file note might go further by way of

explanation, the Court is satisfied that it is sufficiently clear from a reading of this File Note as a whole that the opinion had been

formed that notwithstanding the effect of the information as to conditions faced by HIV/Aids sufferers in Nigeria, the return of this

applicant to that country would not bring about a threat to his life or freedom or expose him to torture or inhuman or degrading

treatment for the purposes of Article 3.

20. The second reason for refusing relief is that even if, (quod non,) some criticism could be made of the absence of a more detailed

explanation in the File Note so far as concerns the s. 5 conclusion, the Court is satisfied that it would be an inappropriate exercise of

discretion to quash the deportation order by certiorari. This is because the information put before the Minister in the representations

together with that consulted and recorded by the author of the File Note, could not in any event constitute a basis for an opinion

that the repatriation of the applicant to Nigeria would violate the prohibition on refoulement or the protection afforded by Article 3.

21. Taken at its strongest, the information undoubtedly points to serious deficiencies in the health services of Nigeria so far as

concerns the care and support given and treatment available to HIV/Aids sufferers. Furthermore, the information indicates that

HIV/Aids sufferers face stigmatisation and discrimination including such treatment at the hands of some personnel in the health

services in that country. Nevertheless, as a matter of law, stigmatisation and discrimination arising out of prejudice and ignorance on

the part of even a large number of individuals (including individuals employed in the health services) will constitute ill-treatment which

comes within the scope of the prohibition in s. 5 or the protection of Article 3 only in exceptional cases involving a minimum level of

severity and probably some clear evidence that the ill-treatment is so endemic and institutionalised as to raise a presumption that it is

official policy or condoned by state authorities. (See for example the judgment of the Strasbourg court in Smith & Grady v. U.K.

[2009] 29 EHRR 493 at paras 117 – 123: and the judgment of Clarke J. in E.M.S v. MJELR [2004] IEHC 398 and the authorities cited

therein including Kuthyar v. Minister for Immigration & Multicultural Affairs, [2000] FCA 110. See also, by analogy, the judgment of

this Court in MST & JT v. MJELR [2009] IEHC 529 and the authorities referred to at paras. 42 & 43 on the concept of “inhuman or

degrading treatment” in the context of the EC (Eligibility for Protection) Regulations 2006). As appears from those cases, an inferior

standard of medical treatment resulting from discriminatory attitudes towards a particular social group will not amount to persecution

for a Convention reason unless it is associated with an unwillingness or inability on the part of the relevant authorities to protect

members of the group from such ill-treatment. A fortiori, such conditions will not come within the scope of s. 5 or Article 3.

22. It is to be noted that the medical opinion put before the Minister in the representations fell far short of raising any implication that

the applicant’s then current condition was life threatening or that it would be so if he was returned to Nigeria. In the letter from the

Mater Hospital dated 21st June, 2007, submitted with the representations of 3rd July, 2007, the Registrar and Social Worker say that

his recent examination showed “that his CD4 count and his viral load are 375 and 7300 respectively. Normal CD4 counts are between

500 and 1000 therefore Mr. E.’s CD4 count needs to be monitored regularly; if his CD4 count dropped he would be susceptible to

developing opportunistic infections and would need to be placed on Anti-retroviral therapy.” In other words, the applicant was not

then on anti-retroviral therapy or in immediate need of such treatment. Further their opinion was that: “His fears of being exported to

Nigeria where he will not have access to the same medical treatment available in Ireland may effect (sic) his mental well-being”.

Again, the opinion is directed at mental well being and not at any life threatening facet of his condition. As already pointed, out a

discrepancy in the standard of available medical treatment alone is not a circumstance which attracts the prohibition of refoulement

or the protection of Article 3.

23. Thus, no question of any imminent threat to the life of the applicant was raised by the combination of the medical evidence and

the country of origin information relied upon. In that regard the position of the applicant was and is materially different from that of

the female applicant in the Meadows case who had alleged and (at least arguably), substantiated a risk to her of serious assault and

even torture in the form of FGM. It follows in the judgment of the Court that no material error could be said to have been made in the

forming of an opinion that neither the prohibition in s. 5 nor the protection of Article 3 would be infringed by the repatriation of the

applicant.

24. For these reasons the application for judicial review is refused.