The High Court has quashed the Minister for Justice’s refusal to let a Nigerian man make a further application for refugee status, ruling that the decision was reached using an incorrect test. It remitted the matter to the Minister for fresh consideration and made no order for costs in the applicant’s favour.
The applicant, identified in the judgment as A. A., sought judicial review of a decision refusing consent under section 17(7) of the Refugee Act 1996. His earlier asylum claim had been rejected by the Refugee Applications Commissioner and on appeal by the Refugee Appeals Tribunal. He claimed to fear persecution by relatives for refusing to become a village shrine’s high priest, and because his homosexuality was discovered after he was raped during a robbery at his home in 2003.
The applicant was diagnosed as HIV positive in December 2004. The judgment records a dispute over whether he gave the Tribunal a hospital letter confirming his status. In March 2008, his solicitors sought consent for a further asylum application, arguing that he feared persecution because of his HIV status, including stigma and discrimination and inadequate access to essential treatment in Nigeria. They submitted 16 country-of-origin reports. The Minister refused consent, reasoning that the information could have been produced during the original asylum process with due diligence.
The court held that the Minister could take account of the applicant’s failure to raise the material earlier, but could not reject the application solely on that basis. The Minister first had to consider whether the information had already been fully assessed. If it had not, the Minister had to consider whether it had substance and whether it indicated a risk that the applicant’s life or freedom could be threatened in Nigeria for a Convention reason. If new information had substance, the matter should be referred to the Refugee Applications Commissioner for investigation.
The judge said the Minister was not required to use a particular formula or address every argument individually. The Minister could also consider the history of the earlier claim, the timing of the HIV-related claim, prior consideration of available treatment in Nigeria, the medical evidence and other relevant factors. The court’s role was to review the legality and rationality of the Minister’s decision, not to decide whether the applicant qualified as a refugee.
The court found that the Minister had not adequately considered the substance of the new information or the possibility of refoulement. It quashed the refusal on grounds including error of law and breach of fair procedures and natural and constitutional justice. The judgment did not itself grant refugee status or decide whether the applicant faced persecution; it ordered a fresh consideration by the Minister.