BS v Minister for Justice and Equality, Ireland and the Attorney General

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Respondent/Defendant:Minister for Justice and Equality, Ireland and the Attorney General
Court/s:High Court
Citation/s:[2014] IEHC 502
Nature of Proceedings:Judicial Review
Judgment Date/s:01 Oct 2014
Judge:Barr J.
Category:Deportation
Keywords:Deportation, Deportation Order
Country of Origin:Albania
URL:https://www.courts.ie/acc/alfresco/a775f14a-cfe3-4f6f-ad99-dda89924238f/2014_IEHC_502_1.pdf/pdf#view=fitH
Geographic Focus:Ireland
Facts:
The applicant was a national of Albania. She claimed asylum and claimed to have come to Ireland for a better life. She subsequently revised her claim and contended that she was fleeing traffickers in Albania, who had previously forced her into prostitution in Italy. It transpired that she had been in Belgium during the timeline contained in her narrative, and when this came to light, she revised her narrative once more. Her application for asylum was refused by the Minister for Justice and a deportation order was made against her in 2006. In 2006, before the order was notified to her, she had apparently attempted suicide by taking an overdose of medication, and had been treated in hospital. She subsequently applied unsuccessfully for subsidiary protection.
By letter dated the 11th June, 2010, the applicant sought revocation of the deportation order, which was primarily based on the applicant’s mental health and changed country conditions in Albania. A number of documents were submitted in support of the request. Whilst some of them related to matters already submitted to the Minister, or were capable of having been submitted in the leave to remain or subsidiary protection applications, three matters were new. The first was a report by one Dr. Giller, who interviewed the applicant on 11th November, 2009. She expressed the view that the applicant’s psychological distress was of such a degree that she had attempted suicide on one occasion and currently expressed suicidal ideation. Her opinion was that if the applicant were to be returned to Albania or threatened with return, her risk of suicide would be high. The second new matter was a report of Dr. O’Donovan, the applicant’s general practitioner. In his report, which was dated the 19th November, 2009, he stated that she suffered from post-traumatic stress disorder with depressive features. He also referred to her overdose in 2006. His view was that she would not be able to purchase or afford in Albania the medication she was receiving in Ireland for her mental condition. The third document was a “New York Times” suggesting that human trafficking might increase in Albania following a 50% decrease in recent years.
By letter dated the 3rd May, 2011, the applicant’s solicitors submitted a report from her general practitioner dated the 21st April, 2011. He stated that she suffered from post-traumatic stress disorder with depressive features and also from severe anxiety. He asked that she be granted leave to remain so that she could recover.
On foot of the request for revocation, an examination of the applicant’s file was carried out on the 3rd May, 2011. The report was signed off by departmental officials and the order was affirmed the following day, the applicant being deported that same day.
The applicant unsuccessfully challenged the affirmation of the deportation order by way of judicial review.

Facts:

The applicant was a national of Albania. She claimed asylum and claimed to have come to Ireland for a better life. She subsequently revised her claim and contended that she was fleeing traffickers in Albania, who had previously forced her into prostitution in Italy. It transpired that she had been in Belgium during the timeline contained in her narrative, and when this came to light, she revised her narrative once more. Her application for asylum was refused by the Minister for Justice and a deportation order was made against her in 2006. In 2006, before the order was notified to her, she had apparently attempted suicide by taking an overdose of medication, and had been treated in hospital. She subsequently applied unsuccessfully for subsidiary protection.

By letter dated the 11th June, 2010, the applicant sought revocation of the deportation order, which was primarily based on the applicant’s mental health and changed country conditions in Albania. A number of documents were submitted in support of the request. Whilst some of them related to matters already submitted to the Minister, or were capable of having been submitted in the leave to remain or subsidiary protection applications, three matters were new. The first was a report by one Dr. Giller, who interviewed the applicant on 11th November, 2009. She expressed the view that the applicant’s psychological distress was of such a degree that she had attempted suicide on one occasion and currently expressed suicidal ideation. Her opinion was that if the applicant were to be returned to Albania or threatened with return, her risk of suicide would be high. The second new matter was a report of Dr. O’Donovan, the applicant’s general practitioner. In his report, which was dated the 19th November, 2009, he stated that she suffered from post-traumatic stress disorder with depressive features. He also referred to her overdose in 2006. His view was that she would not be able to purchase or afford in Albania the medication she was receiving in Ireland for her mental condition. The third document was a “New York Times” suggesting that human trafficking might increase in Albania following a 50% decrease in recent years.

By letter dated the 3rd May, 2011, the applicant’s solicitors submitted a report from her general practitioner dated the 21st April, 2011. He stated that she suffered from post-traumatic stress disorder with depressive features and also from severe anxiety. He asked that she be granted leave to remain so that she could recover.

On foot of the request for revocation, an examination of the applicant’s file was carried out on the 3rd May, 2011. The report was signed off by departmental officials and the order was affirmed the following day, the applicant being deported that same day.

The applicant unsuccessfully challenged the affirmation of the deportation order by way of judicial review.

Reasoning:

The court held that the question for determination was whether the medical evidence before the Minister disclosed a real and substantial risk to the life of the applicant as of the date of the decision to affirm the deportation order, which could only be avoided by revoking it. The court noted that, in that regard, the evidence before the Minister was a report from Dr. Giller based on an interview with the applicant in November, 2009, which had not been submitted until the 11th June, 2010, and was almost eighteen months out of date at the time of the Minister’s decision. The court held that Dr. Giller’s opinion about the risk of suicide faced by the applicant appeared to have been based on her narrative of persecution. It considered it notable that the history of the applicant which had been held to be “relevant” by Dr. Giller, differed in some material particulars from the narrative related by her at various points to the Irish asylum authorities. The court also considered it notable that Dr. Giller was not a psychologist or psychiatrist, and that her experience lay in dealing with asylum seekers’ medical conditions. The court noted that the only other report before the Minister was a report of the applicant’s general practitioner dated the 19th November, 2009. That report did not state that deportation in and of itself would give rise to a risk of suicide.

The court held that it was open to the Minister to reach the conclusion that the medical reports did not establish that deportation would pose a real and substantial risk to the applicant’s life which could not be avoided other than by revoking the deportation order. It also held that there was no basis for quashing the decision on account of the lack of consideration of the second report of the applicant’s general practitioner. It pointed out that the report had been submitted too late for consideration as part of the applicant’s file.

Decision:

The court therefore upheld the Minister’s decision.

Principles:

In deciding whether or not to revoke a deportation order on the basis of a medical report containing an opinion that deportation would give rise to a risk of suicide, it is appropriate for the Minister for Justice to have regard to whether or not the report is contemporaneous with any request for revocation, whether or not its author is a psychologist or psychiatrist, and whether the assertions upon which such an opinion is based are consistent with the applicant’s history as related to bodies such as the asylum and immigration authorities. If the report is not contemporaneous, if the author is not psychologist or psychiatrist, and if the assertions upon which the opinion is based differ from the narrative furnished to the asylum and immigration authorities, it will be open to the Minister to affirm the order and deport the subject of the request for revocation.

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