The High Court has refused a judicial review application challenging a deportation order and the Minister’s later refusal to revoke it. The judgment, delivered by McCarthy J. on 18 January 2008, concerned an anonymised woman identified as B.J.N.
The woman sought to quash the deportation order, which the judgment says appeared to have been made on 15 November 2005, and the refusal to revoke it. Her main focus at the hearing was the refusal to revoke. The court also considered her challenge to the original order. It refused all relief sought; it did not quash either decision.
The woman had arrived in Ireland from South Africa in February 2004 and claimed asylum. Her claim was refused by the Refugee Appeals Tribunal. She later made representations asking to remain in Ireland, including information that she was HIV positive. The Minister made a deportation order after those representations were considered.
In November 2006, she asked the Minister to revoke the order, submitting an updated medical report. It said she was receiving intensive treatment and supervision for active HIV infection and that interrupting treatment was likely to harm her progress and reduce her prospects of a good long-term outcome. The Minister refused, stating that the new report did not warrant a change in the earlier decision.
The court applied the established O’Keeffe test for judicial review, under which a decision may be challenged if it is fundamentally at odds with reason and common sense. It rejected the argument that a lower or heightened scrutiny test applied, saying it was bound by existing law and that the Supreme Court had not departed from O’Keeffe.
On the medical evidence, the judge considered the later report to provide greater detail about treatment but not a substantial change in the woman’s condition. The judgment said the Minister had considered the medical information and country-of-origin material. The judge found no basis in the materials before the Minister to require further inquiry into discrimination against people with HIV in South Africa.
The woman also argued that removal would breach constitutional and Convention rights, including rights to life and private life. The court concluded that the evidence did not establish an entitlement to remain in Ireland for medical treatment, and that the Article 8 claim did not meet the threshold to engage that right. It said no refoulement issue arose on the material before it. The judge noted there had been no explicit submissions on the pleaded Article 2 claim and found no basis for the other alleged Convention or constitutional breaches.