RB v Minister for Justice and Law Reform

• Jurisdiction: Ireland
• Judge: MR. JUSTICE MICHAEL PEART
• Judgment Date: 10 February 2017
• Neutral Citation: [2017] IECA 26
• Docket Number: [C.A. No. 384 of 2015],Neutral Citation Number: [2017] IECA 26 RECORD NO.: 2015 384
• Court: Court of Appeal (Ireland)
• Date: 10 February 2017

[2017] IECA 26

THE COURT OF APPEAL

Peart J.

FINLAY GEOGHEGAN J.

PEART J.

IRVINE J.

Neutral Citation Number: [2017] IECA 26

RECORD NO.: 2015 384

BETWEEN/

RB

APPLICANT/RESPONDENT

-AND -

THE MINISTER FOR JUSTICE AND LAW REFORM,

ATTORNEY GENERAL

AND

IRELAND

RESPONDENTS/APPELLANTS

Deportation – Revocation – Country of origin information – Respondent seeking to appeal against a deportation order – Whether appellant failed to properly consider country of origin information

Facts: The first appellant, the Minister for Justice and Law Reform, appealed against an order of Barr J dated 9th December 2014 quashing the Minister's decision dated 14th December 2010 to affirm a deportation order dated 17th June 2003 in respect of the respondent, an Armenian national who came to Ireland in 2000, and whose application for a declaration of refugee status was refused. According to his affidavit sworn on the 20th December 2010 to ground his application for judicial review in the High Court, the respondent had sought to have the decision to affirm the deportation order quashed on two grounds: (a) the Minister failed to properly consider certain country of origin information which had been submitted by the respondent which, he submitted, established a likelihood that he would, if refouled to Armenia, be exposed to the risk of assault as a Jehovah's Witness; and (b) the Minister failed to have regard to the respondent's mental health, and in particular to two medical reports of one Dr McCaffrey, Consultant Psychiatrist, dated respectively the 8th June 2005 and 28th July 2005 which noted suicidal ideation resulting from his fear of being returned to Armenia, and which went on to state that the respondent "is a high risk person for suicide if he is deported".

Held by Peart J that the trial judge erred in concluding that the decision of the Minister must be quashed for either of these reasons. Peart J held that the trial judge failed to apply the lower test appropriate to a review of a decision not to revoke a deportation order. Peart J held that the trial judge erred in deciding that the decision not to revoke the deportation must be quashed because the Minister "did not have regard to the particular dangers which would face the applicant as a Jehovah's Witness"; he clearly considered the country of origin information in this regard, and that was the extent of his duty. Peart J noted that not only was that risk already considered and rejected during the asylum process, but it was reasonable for the Minister to conclude that even if there were such dangers disclosed in the country of origin information, the respondent himself was not a person at such risk as he was not a Jehovah's Witness even on his own case. Peart J held that the trial judge erred in determining that the reports of Dr McCaffrey had to be considered in a more specific way than was done by the Minister because they constituted new evidence of suicide risk. Peart J was also satisfied that he erred in quashing the Minister's decision by reason of his conclusion that they constituted new information; that was not the relevant question, but rather whether they raised a new issue that had not previously been considered and which in 2010 could justify the revocation of the deportation order.

Peart J held that he would allow the Minister's appeal; it followed that the High Court order was vacated and the application for judicial review dismissed.

Appeal allowed.

JUDGMENT OF MR. JUSTICE MICHAEL PEART DELIVERED ON THE 10TH DAY OF FEBRUARY 2017

1 This is the Minister's appeal against an order of Barr J. dated 9th December 2014 (perfected on the 29th June 2015) quashing the Minister's decision dated 14th December 2010 to affirm a deportation order dated 17th June 2003 in respect of the respondent (hereinafter referred to as RB), an Armenian national who came to this country in the year 2000, and whose application for a declaration of refugee status was refused.

2 According to his affidavit sworn on the 20th December 2010 to ground his application for judicial review in the High Court RB had sought to have the decision to affirm the deportation order quashed on two grounds:

(a) that the Minister failed to properly consider certain country of origin information which had been submitted by RB which, he submitted, established a likelihood that he would, if refouled to Armenia, be exposed to the risk of assault as a Jehovah's Witness; and

(b) that the Minister failed to have regard to RB's mental health, and in particular to two medical reports of Dr. Brian McCaffrey, Consultant Psychiatrist, dated respectively the 8th June 2005 and 28th July 2005 which noted suicidal ideation resulting from his fear of being returned to Armenia, and which went on to state that RB 'is a high risk person for suicide if he is deported'.

3 In respect of (a) the trial judge at para. 26 of his judgment concluded as follows:

'26. The Court has regard to the fact that there was credible COI [country of origin information] which established that the Jehovah's Witnesses suffered discrimination in Armenia and that attacks upon them would go unpunished. [The Minister] in holding that there was a functioning police force in Armenia, did not have regard to the particular dangers which would face the applicant as a Jehovah's Witness. The applicant is entitled to have the decision of the respondent quashed on this ground.'

4 In respect of (b) the trial judge at paras. 44 and 45 of his judgment concluded as follows:

'44. The respondent submitted that the reference to suicidal ideation had been there all along and was not a new or changed circumstance.

45. The court is of opinion that the medical report submitted on the revocation application constituted new information, which had to be considered on the question of the revocation of the deportation order. While it is true to say that suicide had been mentioned in Dr. Whelan's reports, it was only referred to in passing in what were very brief reports, whereas the reports from Dr. McCaffrey put the issue of suicide on a much firmer footing. In the light of these reports, there was a credible risk that if deported, the applicant would commit suicide. This had to be taken into account by the decision maker. While the revocation decision makes reference to Dr. McCaffrey's reports, it does not deal with the reports in any explicit way. The decision maker should have addressed the fact that there was credible evidence that the applicant was a suicide risk. As this was not done, the decision will have to be quashed.'

5 For reasons which I will come to, I consider that the trial judge erred in concluding that the decision of the Minister must be quashed for either of these reasons. But before addressing the parties' submissions and stating my conclusions in more detail, in order to give context to the decision to affirm the deportation order which had been made some seven years previously in June 2003 I feel it would be helpful to set out the background facts relied upon by the applicant.

6 RB is an Armenian national who was born in 1973. Having completed his schooling he gained a third level business qualification. Between 1993 – 1995 he completed his obligatory military service achieving the rank of lieutenant. According to what he stated in his asylum application, it was during the course of this military service while serving on the front line near the border between Armenia and Azerbaijan in 1993 that he witnessed the shooting of a newly recruited young soldier by some members of the Fedayin (a paramilitary group). Earlier in the day these men had attempted to take the young recruit's uniform. The applicant had intervened causing the men to run away. However it appears that they returned later that night and shot the recruit. It appears that RB went to his assistance but was unable to save his life. He remained with the body during the night, and due to the extremely cold weather conditions and the lack of any winter clothing, he lost consciousness. It appears that he was eventually found and taken to hospital where he remained for some six months due to frostbite. He was eventually discharged from hospital fully fit.

7 Some four years later, in 1997, while walking home, RB says that he came upon a group of policemen who were mistreating a man who was one of a number of demonstrators whom they were trying to arrest. When RB tried to intervene he was told by the police to go away. But he was also asked to produce his own identity papers. As RB was leaving that scene he overheard one of the policemen saying that RB's face looked very familiar. RB then realized that the policeman was one of the men whom he had seen shooting the young recruit four years earlier in 1993.

8 On the following day the police began a search for RB. They went to his father's house. His father told them that he was out, and they left a message that they would meet him the following week. The trial judge notes that RB could not recall where that meeting was to take place, but in any event he did not keep the appointment. The police apparently returned to his father's house and became angry when RB was again not to be found there. They forced his parents to hand over his passport, and demanded that RB attend at the police headquarters on the following day. Again, RB did not do so, but instead went to live at his aunt's house. The police again returned to his parents' house that evening. This time they broke down the front door and demanded to know where RB was. When that information was not forthcoming the police became violent. They smashed up property in the apartment and assaulted RB's mother, breaking her arm in the process. They also caused injury to his father and his brother. It appears that when the police left the house his mother telephoned his aunt to tell RB not to return...