Nigerian wins right to challenge refusal

A man with HIV, whose wife also has HIV and whose Irish-born four-year-old daughter has Aids, has secured leave from the High…

A man with HIV, whose wife also has HIV and whose Irish-born four-year-old daughter has Aids, has secured leave from the High Court to bring a legal claim that he is entitled to refugee status on grounds that he and his family will be denied essential medical care for HIV/Aids in Nigeria.

The man had sought refugee status on several grounds, including a well-founded fear of persecution in Nigeria because he has HIV.

On July 29th, 2005, a member of the Refugee Appeals Tribunal rejected his application.

The man then applied to the High Court for the necessary leave to challenge the tribunal's decision and Ms Justice Mary Finlay Geoghegan yesterday ruled he had established the necessary "substantial grounds", in relation to the HIV issue, to bring that challenge.

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In her decision, the judge noted it was undisputed that the man only learned he was HIV positive after arriving in Ireland in 2003. The same position appeared to apply to his wife's case. Their daughter was born here with HIV infection which had since unfortunately developed into AIDS.

Among the grounds on which the man claimed the tribunal's decision was invalid was that the tribunal had unreasonably and irrationally concluded that he would receive treatment for his condition in Nigeria. He also claimed the tribunal had erred in law in how it assessed there was a change of circumstances in Nigeria in relation to the position of persons with HIV and Aids.

The man had established these were substantial grounds on which to bring his challenge, the judge ruled.

She noted the tribunal's conclusion that the man would receive treatment for his condition in Nigeria was based on a Nigerian newspaper article to the effect that a bill was to be passed into law in 2005 on the issues of stigmatisation and discrimination against those with HIV and Aids.

She found the man had made "reasonable and weighty arguments" that he was deprived of fair procedures because of the alleged failure to bring the article to his attention and to permit him to make submissions about it.

As the tribunal's conclusion that the man would receive treatment for his condition in Nigeria was based on the same article, she was also satisfied the man had made out substantial grounds for claiming such a conclusion was unreasonable.

The judge stressed she was not determining whether or not the tribunal member was required to reach a conclusion about whether the man would receive treatment in Nigeria as part of its assessment of his claim of a well-founded fear of persecution on account of having HIV.

However, having claimed he was entitled to rely on a fear of persecution because of a denial of essential medical care to himself and his family in Nigeria, the man was entitled to have that claim determined in accordance with the relevant legal principles, she held.

The tribunal was also obliged to consider the availability of updated information on developments in Nigeria relating to the treatment of persons with HIV and Aids.