Feb 23, 2017

Court of Appeal: Armenian man who claimed to be a Jehovah's Witness has deportation order reaffirmed

High Court
Seosamh Gráinséir
Irish Legal News
23 February 2017

The Minister for Justice and Law Reform has successfully appealed an Order of the High Court, which quashed the Minister’s decision to affirm an Armenian national’s deportation order. Delivering the judgment of the three-judge Court of Appeal, Mr Justice Michael Peart found that the trial judge had erred on both the issue of suicidal ideation, and the risk of assault as a Jehovah’s Witness.

Background

In December 2010, the Minister for Justice and Law Reform affirmed a 2003 deportation order in respect of RB, an Armenian national who came to this country in the year 2000, and whose application for a declaration of refugee status was refused.

RB made an application for judicial review in the High Court, seeking to have the Minister’s decision 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, 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”.

In December 2014, Justice Barr made an order quashing the Minister’s decision, finding that the decision had to be quashed on both grounds.

Court of Appeal

In the Court of Appeal, the Minister appealed the decision of Justice Barr, submitting that the trial judge erred by entering into a consideration of the merits or weight of the reports of Dr McCaffrey, and the Country of Origin Information (COI) that was referred to in relation to the Jehovah’s Witness issue.

In relation to the Jehovah’s Witness issue, Justice Peart found that the trial judge fell into error by failing to “apply the lower test appropriate to a review of a decision not to revoke a deportation order”.

By the time the Minister came to deal with RB’s application as a revocation application his claim for asylum based on his association with the Jehovah’s Witnesses and the risk of persecution thereby claimed to arise, had already been considered at the various stages of the process and rejected. Accepting the authorities outlined on behalf of the minister, Justice Peart agreed that the trial judge erred in failing to appreciate the limited scope of the review required in respect of a revocation decision (as per O(O) v. Minister for Justice [2008] IEHC 325; Kouyape v. Minister for Justice [2011] 2 IR 1; and P.O. v. Minister for Justice [2015] IESC 64).

Furthermore, it was reasonable for the Minister to conclude that even if there were such dangers disclosed in the COI, RB himself was not a person at such risk as he was not a Jehovah’s Witness even on his own case.

Accordingly, Justice Peart was satisfied that “the Minister considered the application appropriately, and in the exercise of his discretion was entitled to conclude as he did”.

In relation to the issue of suicidal ideation, Justice Peart explained that the Minister’s duty on the application being dealt with under s. 3(11) of the Immigration Act 1999 was “to consider all the medical evidence in his possession, and in particular the two reports from Dr McCaffrey which had not been available to him when he considered the s. 3 leave to remain application, and to form a view whether any new issue was raised in Dr McCaffrey’s two reports in 2005 which justified a revocation of the 2003 deportation order in 2010 or whether something of an exceptional nature arose in relation to RB’s personal circumstances that would merit a revocation”

Justice Peart was of the view that “the question whether the reports of Dr McCaffrey constituted credible evidence that RB was a suicide risk was not the correct question for the trial judge to consider”, and that the correct question was “whether those reports raised some new issue in 2010 for the Minister’s consideration which had not been previously considered when the deportation order was made”.

As such, Justice Peart was satisfied that t he trial judge erred in determining that these reports had to be considered in a more specific way than was done by the Minister because they constituted new evidence of suicide risk.

Allowing the Minister’s appeal, Justice Peart held that the High Court Order must be vacated and RB’s application for judicial review dismissed.
https://www.irishlegal.com/6681/court-of-appeal-armenian-man-who-claimed-to-be-a-jehovahs-witness-has-deportation-order-reaffirmed/

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