The High Court has rejected an asylum applicant’s challenge to a report recommending that she not be declared a refugee, finding that the Refugee Applications Commissioner had investigated the health concern she raised and was not obliged to pursue a further theory of discrimination that had not been advanced before the Commissioner.
The applicant, identified in the judgment as N.N., is a South African national who arrived in Ireland in September 2006 and claimed asylum. She said she feared harm from her husband and would be denied treatment for her HIV condition if returned to South Africa.
The Commissioner’s report, issued on 26 September 2006, found the applicant’s account of feared abuse by her husband lacked credibility. It also considered HIV treatment in South Africa, citing country information that treatment was available through government clinics or hospitals subject to criteria, though access to life-prolonging treatment remained limited. The report concluded there was no evidence she would be treated differently from other South Africans in the same situation.
The applicant sought judicial review to quash the report, arguing that once her HIV status was mentioned, the Commissioner had to investigate whether women with HIV faced discrimination amounting to persecution. Her counsel accepted that this particular issue had not been raised before the Commissioner. The applicant’s separate challenge concerning statutory factors under section 11B of the Refugee Act 1996 was withdrawn at the hearing.
In a reserved judgment delivered on 20 May 2009, Mr Justice Cooke held that the Commissioner had followed up the immediate implication of the applicant’s stated fear by obtaining country information about HIV treatment. The court said the Commissioner’s investigative duty did not extend to anticipating or formulating possible refinements of a fear of persecution that an applicant had not advanced.
The court found the remaining ground for quashing the report was unfounded. It therefore did not decide whether certiorari would have been appropriate given the statutory appeal route. The applicant had lodged an appeal with the Refugee Appeals Tribunal, but it had been rejected as out of time. The High Court did not issue an order quashing the report.