AS v Minister for Justice

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Respondent/Defendant:Minister for Justice and Equality
Court/s:High Court
Citation/s:[2015] IEHC 178
Nature of Proceedings:Judicial Review
Judgment Date/s:16 Mar 2015
Judge:Stewart J.
Category:Deportation
Keywords:Country of Origin Information, Deportation
Country of Origin:Bangladesh
URL:https://www.courts.ie/acc/alfresco/b64b904c-cf40-4f71-9094-b37d69be71e7/2015_IEHC_178_1.pdf/pdf#view=fitH
Geographic Focus:Ireland

Facts:
The applicant was a national of Bangladesh who unsuccessfully applied for asylum in Ireland and later became the subject of a deportation order. He claimed to have been a political activist in Bangladesh and to have been forced into hiding to escape the attentions of the authorities. He omitted to mention that he had been granted two visas to enter the United Kingdom, one of which covered a period during which he claimed to have been in hiding. He then stated that he conducted those visits to the United Kingdom in order to visit some educational institution and to learn about the education system there. He said that he did not tell the Irish authorities about the visits as he feared he would be returned to the United Kingdom and deported to Bangladesh. He applied to revoke the deportation order, relying on political strife in Bangladesh, which he claimed would expose him to harm if returned there.

The Minister held that he was not at risk in Bangladesh as he had a low political profile and the political situation there had returned to normality, with the party of which he claimed to be a member participating in local elections with considerable success. Further, she disbelieved his narrative about why he had to flee Bangladesh, having regard to the fact that he was actually in the United Kingdom for a considerable period of the time he claimed to have been in hiding.

He issued proceedings and obtained leave ex parte to challenge the affirmation by the Minister of the deportation order. He also sought an interlocutory injunction enjoining his deportation from the State. He contended that deporting him would breach the prohibition against refoulement given ongoing political violence in Bangladesh. He maintained that previous his lack of candour had no bearing on that submission and that he had obtained leave on arguable grounds and that therefore there were arguable grounds for granting him the injunction sought.

The Minister contended that the default position outlined by the Supreme Court in Okunade v. Minister for Justice meant that the order should be enforced pending the outcome of the proceedings. She also submitted that his wrongful conduct and lack of candour should lead to his injunction application being refused.

The court refused the injunction.

Reasoning:
It noted that the applicant had sought revocation of the deportation order because of a changed political situation in Bangladesh, but that his reasons for his fears of persecution were not new and had been rejected in a series of decisions given by the asylum authorities and the Minister on his various claims for protection. The rules governing the circumstances in which deportation orders would be stayed as set out in Okunade did not  cease to apply just because the subject of such an order asserted a fear of refoulement, and the fact that leave had been granted to challenge a refusal to revoke the order did not establish to the standard required the existence of circumstances which tipped the balance in favour of restraining deportation and against the default position that deportations were to be effected pre-trial if the State so wished.

The principles governing an application for interlocutory relief where an applicant alleged that the rejection by the Minister of his stated fear of refoulement was unreasonable had been restated by the Supreme Court in PBN v Minister for Justice, namely whether, on an arguable grounds basis, there was a credible basis for suggesting that a real risk of significant harm would attach to the non-national on deportation. If the answer was in the affirmative, then, in the absence of very weighty countervailing considerations, the balance of justice favoured granting an interlocutory injunction restraining deportation.

The court held that the applicant had not satisfied that test There was nothing in the material relied upon by him to support the suggestion that low-level members of his political party were at risk of harm. It also considered it important that the alleged fears which formed the basis of the injunction application were the same as the fears which formed the basis of his protection applications and revocation application. It considered the lack of candour in his claim presented two problems for him: first, it harmed his claim that his fear of persecution forced him into hiding; and, secondly, the fact that he returned from the United Kingdom to the alleged source of his fear, suggested that he had no such fear at the relevant time.

It held that he ought to have made some effort on the injunction application to explain why earlier decisions on his claims were wrong, and he had failed to do so. It also noted that other negative factors about his history were before the court and were unaddressed, such as how he came to be arrested in a restaurant in the State in 2007 and only made a claim for asylum afterwards. Unlike the situation in PBN, it noted that there were no evidential conflicts in the material considered by the Minister on his application for revocation and it accepted the Minister’s argument that he had not put forward any evidence to contradict that or to displace the views of the Minister that he would not be at risk on account of his political activities if returned to Bangladesh. Although he had obtained leave to challenge the Minister’s decision, more was required to obtain an interlocutory injunction.

Decision:
The court therefore refused the application for an interlocutory injunction to enjoin deportation of the applicant.

Principles:

Where an applicant has obtained leave to challenge a decision to affirm a deportation order and wishes to obtain an injunction enjoining his deportation pending the substantive hearing, he must still show  that, on an arguable grounds basis, there is a credible basis for suggesting that he would be at real risk of significant harm on deportation.

Where an applicant for such an injunction relies on assertions to support it which are the same as assertions which underpinned earlier, unsuccessful applications for, for instance, protection, then he must set out some basis for contending that those decisions were wrong.

Lack of candour permeating an injunction application may result in the relief sought being refused.

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