The High Court has refused an application for judicial review challenging a deportation order for an anonymised applicant who had been diagnosed with HIV/AIDS and was receiving treatment in Ireland.
The judgment, delivered by Mr Justice Cooke on 22 October 2010, concerned an order made by the Minister for Justice, Equality and Law Reform on 10 April 2008. The applicant argued that the Minister had failed to properly consider whether returning him to Nigeria would breach the prohibition on refoulement or protections against inhuman or degrading treatment under Article 3 of the European Convention on Human Rights. He also argued that the reasons given for the decision were inadequate.
The applicant’s solicitor had submitted representations in July 2007, including country information about stigma, discrimination and difficulties accessing HIV/AIDS care in Nigeria. The court noted that the representations did not expressly refer to section 5 of the Refugee Act 1996, but said the Minister’s file note addressed the information in its section on refoulement. The note concluded that repatriation would not be contrary to section 5.
Justice Cooke distinguished the case from the Supreme Court’s decision in Meadows, where the reasoning on refoulement had been found too opaque to discern. In this case, the file note contained a specific conclusion that return to Nigeria was not contrary to section 5, and, read as a whole, showed that the Minister had rejected the claim that the applicant would face a threat to life or freedom or treatment prohibited by Article 3. The court said the law did not require a detailed narrative explanation of why refoulement did not arise.
The court also held that the material before the Minister could not support an opinion that the return would breach section 5 or Article 3. It accepted that the country information described serious deficiencies in HIV/AIDS care and reported stigma and discrimination, including by some health service personnel. But the judgment said such treatment would fall within those protections only in exceptional circumstances, including evidence of sufficient severity and, likely, state policy or acquiescence.
A hospital letter submitted with the representations reported a CD4 count of 375 and viral load of 7,300. It said the count required monitoring and that a decline could make the applicant susceptible to opportunistic infections and require antiretroviral therapy. The court noted that he was not then receiving that therapy and that the medical opinion did not identify an immediate or life-threatening condition. It said a difference in available medical treatment alone was insufficient.
The court refused judicial review and declined to quash the deportation order. It concluded that no material error had been shown in the Minister’s opinion that neither section 5 nor Article 3 would be infringed.