By Niamh Ellis
The High Court has refused a Nigerian woman permission to challenge the rejection of her asylum claim based principally on fears of discrimination and inadequate treatment because she is HIV positive.
The applicant, identified as B.S., said she was born in Nigeria in 1963 and arrived in Ireland in April 2007 to work as a child minder. She later became ill, was admitted to hospital and was diagnosed as HIV positive. She applied for asylum in November 2007.
She argued that returning to Nigeria would expose her to stigma, hostility and discriminatory denial of medical treatment. She also relied on her position as a separated or single woman and described having previously been beaten, robbed and molested while travelling home from markets.
The Refugee Applications Commissioner rejected her claim and the Refugee Appeals Tribunal upheld that recommendation in July 2008.
The Tribunal accepted that people living with HIV in Nigeria faced societal discrimination and stigma. However, it concluded that the evidence did not show discrimination severe enough to amount to persecution under refugee law. It also found that available country information did not establish a Nigerian government policy of deliberately denying HIV treatment.
In the High Court, B.S. argued that the Tribunal had confused two separate issues: discriminatory denial of healthcare by the State and persecution arising from societal discrimination by private actors.
Ms Justice Clark rejected that argument. She held that the Tribunal had considered those questions separately and had not treated State sponsorship as a necessary condition for persecution by non-State actors.
The judge said discrimination or stigma must reach the level of a severe violation of basic human rights before refugee protection arises. Poorer healthcare than that available in Western Europe was not itself persecution; a materially different issue could arise if adequate treatment existed but was deliberately withheld from an identifiable group.
The court also rejected claims that the Tribunal selectively used country information or inadequately addressed earlier Tribunal decisions involving HIV-positive Nigerian applicants.
As no substantial ground for challenging the Tribunal decision was established, the application for leave to seek judicial review failed.