The High Court refused a Nigerian man’s application for judicial review of a decision denying his request to re-enter the asylum process based on his HIV status. Mr Justice Cross held that the Minister’s assessment was not irrational or unreasonable, despite one irrelevant consideration in the decision.
The man, identified in the judgment as A.A. and Mr A., arrived in Ireland in November 2004 and sought asylum. His original claim included alleged risks from his extended family and because he was gay. He was refused refugee status, and a deportation order was made in 2006. He was diagnosed HIV positive in December 2004, but that had not been raised in his original application.
Under an agreement settling an earlier judicial review, he was allowed 28 days to make a fresh application under section 17(7) of the Refugee Act 1996, confined to his HIV status. The Minister refused that request in June 2010. The decision said country information showed 2.6 million people living with HIV in Nigeria and that no case had been made showing the applicant faced persecution from the authorities or other groups the authorities tolerated or could not protect against.
The applicant argued that the Minister had not properly assessed country information documenting discrimination against people with HIV, including by state employees and in hospitals. He said the threshold was whether the new material showed a reasonable prospect of a favourable decision on a fresh asylum claim. The Minister’s counsel argued that discrimination was not necessarily persecution and that the cited Nigerian cases did not establish that HIV status was the basis for a favourable refugee decision.
Cross J accepted that the threshold for a section 17(7) application based on new information was not onerous. He also found that the Minister’s statement that no circumstances differentiated the applicant from other Nigerian men with HIV was irrelevant: the fact that many people shared a condition would not itself defeat an asylum claim.
However, the judge held that this statement did not affect the remainder of the decision. The Minister had said he considered the country information, and there was no evidence that he had failed to do so. The court found the information showed discrimination, including occasional discrimination by state employees, but did not make the conclusion that the applicant was not at risk of persecution irrational or unreasonable. It also found the cited prior refugee appeals decisions did not establish the relevant position in Nigeria.
The court therefore refused the judicial review application. It did not grant the requested order quashing the Minister’s decision.