High Court dismisses injunction against deportation due to lack of credible evidence contradicting Minister's risk assessment.

Neutral Citation: [2015] IEHC 178

THE HIGH COURT

JUDICIAL REVIEW

[2014 No. 631 J.R.]

BETWEEN

A. S.

APPLICANT

-AND-

THE MINISTER FOR JUSTICE AND EQUALITY

RESPONDENT

JUDGMENT of Mr. Justice Mac Eochaidh delivered on the 16th day of March 2015

1. This is an application for an interlocutory injunction restraining the applicant’s deportation pending the determination of a challenge

to a refusal to revoke a deportation order. Leave to seek judicial review was granted ex parte on 3rd November 2014.

Background:

2. The applicant is a Bangladeshi national born on 1st April 1971. The applicant states that he was a university lecturer in political

science and an active member of the Bangladesh Nationalist Party (BNP) in his home country. He states that he was 1st Joint

Secretary of a committee within the party in this regard. He is married with a son and daughter and his family continue to live in

Bangladesh. He states that following the declaration of emergency powers legislation in Bangladesh on 11th January 2007, the

government began arresting and torturing members of the opposition such as the BNP. He claims that he was dismissed from his

employment on 2nd February 2007 owing to his political involvement.

3. In his affidavit of 29th October 2014, the applicant avers that some of the information which he originally provided to the

authorities during his application for refugee status in the State was incomplete and misleading. In particular, the applicant admits

that he failed to tell the Irish authorities that he had been granted two visas permitting him to visit the United Kingdom. The applicant

states that he visited the UK from the 11th April 2006 to 1st August 2006 and from 15th November 2007 until 19th March 2008. He

states that these visa dates are confirmed by the relevant entry and exit stamps appearing on his Bangladeshi passport, possession

of which he had also failed to disclose to the authorities. The applicant states that he conducted these visits to the UK in order to

visit some educational institutions and to learn about the UK’s education system. The applicant claims that he did not tell the Irish

authorities about these visits as he feared he would be returned to the UK and eventually deported from there to Bangladesh.

4. The applicant now claims that following his return to Bangladesh on 19th March 2008 he organised a BNP party meeting in his

house. He states that the police found out about the meeting and raided the house. He claims that he escaped and ran away, staying

in a hotel and contacting his BNP colleagues from there. He claims that with the help of his older brother and a friend he went to

Dhaka and with the help of an agent arranged to travel to Iran before travelling to Turkey. He states that he left there by ship and

reached Ireland on 5th April 2008. He claims that he stayed with some Bangladeshi nationals in Trim, Co. Meath who informed him how

to apply for asylum but that he was in ill-health after the long journey and did not make his application immediately. He claims that

before he got the opportunity to apply for asylum he was arrested by Gardai when he was found to be without proper identification.

The applicant’s claimed fear is that he will be persecuted in Bangladesh owing to his political opinion and activities.

5. The applicant was refused a recommendation of refugee status by the Refugee Applications Commissioner on the basis of a lack of

credibility and this finding was affirmed on a ‘papers only’ appeal to the Refugee Appeals Tribunal. He subsequently made an

application for subsidiary protection and for leave to remain in the State. The Minister notified the applicant of the refusal of his

application for subsidiary protection on 10th August 2011 and by letter of 9th September 2011 he was informed that his application

for leave to remain was also refused and that a deportation order had been made against him. The applicant thereafter initiated

judicial review proceedings in respect of the decisions refusing subsidiary protection and leave to remain on 24th October 2011. On

26th March 2013, the respondent sought to have the proceedings dismissed on the basis that the applicant had failed to disclose

those material facts set out above during his application for refugee status. As such, the applicant withdrew the proceedings and the

respondent obtained an order for its costs.

6. An application pursuant to s. 3(11) of the Immigration Act 1999 was made on 6th November 2013 for revocation of the deportation

order made against the applicant. The applicant states that the basis of this application was the submission of a large amount of new

evidence and a change in circumstances in Bangladesh. The applicant also states that he sought an undertaking not to deport him

pending the consideration of this application but the undertaking was not forthcoming from the Minister. Updated submissions and

documentation was furnished to the Minister on 16th, 24th and 27th of January 2014 enclosing further country of origin information

which documented the developing situation in Bangladesh.

7. Following his attendance at the GNIB offices on Burgh Quay, Dublin on 11th April 2014, it became apparent to the applicant that

the authorities were seeking to organise an identification document from the Bangladeshi Embassy in London in order to facilitate his

deportation. As it appeared that his deportation was imminent and he had yet to receive a consideration of his s. 3(11) application for

revocation, the applicant launched judicial review proceedings seeking leave ex parte from this court on 12th May 2014. Leave was

granted on that date with an interim injunction restraining deportation until 19th May 2014 also granted. When the matter appeared in

the list on that date, counsel for the respondent stated that the Minister had agreed to give an undertaking not to deport the

applicant until 23rd June 2014.

8. By letter of 16th May 2014, the applicant was notified of the refusal of his s. 3(11) revocation application. On 23rd June 2014, the

applicant again sought the ex parte leave of the High Court to challenge the said refusal. Leave was granted on that occasion by

Keane J. and an interim injunction restraining deportation was also made in respect of the applicant. These proceedings were later

struck out on consent on 28th July 2014 following the agreement by the respondent to withdraw the refusal of the revocation

application and to issue a new decision in this regard.

9. Updated representations were made by the applicant’s solicitors on 19th August 2014 and by letter of 1st October 2014 the

applicant was notified that his application for revocation had been refused again. The applicant attended at the GNIB for signing

purposes on 21st October 2014 and was given his next signing date of 18th November 2014. It is noted that while the respondent has

previously, on occasion, granted an undertaking not to deport the applicant counsel was informed that any such undertakings would

not be continuing henceforth and commenced ex parte proceedings seeking leave to apply for judicial review. Leave to seek judicial

review was granted by this court on a second occasion on 3rd November 2014 and an interim injunction restraining deportation was

granted until 17th November 2014.

Submissions:

10. Counsel for the applicant, Mr. Anthony Hanrahan B.L., submits that this is a refoulement-type case in the context of apparent on-

going political violence in Bangladesh. In this regard, it is submitted that the law governing the granting or withholding of an

interlocutory injunction is clear and is as set down by Clarke J. in Okunade v. Minister for Justice [2012] IESC 48 and Laffoy J. in P.B.

N. [DR Congo] v. Minister for Justice & Equality [2014] IESC 9.

11. The applicant refers specifically to para 10.6 of the judgment of Clarke J. in Okunade to the effect that:

“if an applicant can demonstrate that deportation, even on a temporary basis, would cause more than what one might

describe as the ordinary disruption in being removed from a country in which the relevant applicant wished to live, such as

a particular risk to the individual or a specific risk of irremediable damage then such factors, if sufficiently weighty, could

readily tilt the balance in favour of the grant of an injunction or a stay.”

12. It is submitted that the applicant in this case faces a particular risk or a specific risk of irremediable damage if deported back to

Bangladesh. In this regard, counsel refers to the country of origin information furnished to the Minister highlighting the politically

motivated violence in the country, particularly around the elections held in January 2014. Counsel also refers to the applicant’s

political involvement in his home country and his fears of returning in light of the deterioration in the political situation.

13. Counsel refers to the dicta of Clarke J. at para. 10.7 where he states:

“Where, on an arguable grounds basis, the situation with which a judge of the High Court is faced when considering an

interlocutory injunction application in this field is one where there is a credible basis for suggesting that a real risk of

significant harm would attach to the applicant on deportation, then it would require very weighty considerations indeed to

displace the balance of justice on the facts of that case, certainly if what was intended was a deportation back to the

country in which the relevant applicant would face those risks (rather than, for example, to an earlier “safe” country in

accordance with the Dublin Convention). While, therefore, important and fundamental rights can be involved it does not

necessarily follow that, in each case in which an interlocutory injunction is sought, there is any credible basis for

suggesting that truly fundamental rights are, in fact, involved. Where such rights are involved a very heavy weight indeed

needs to be attached to them.”

14. It is submitted that in the light of the country of origin information submitted to the Minister, there is a real risk of significant harm

to the applicant if he was deported to his home country and that weighty considerations need to be shown by the respondents to

displace the balance of justice in favour of the applicant on the facts of this case. In this regard, counsel refers to a number of

different newspaper articles submitted by the applicant which outline the numbers killed in political violence in Bangladesh and to an

Amnesty international report highlighting the enforced disappearances and torture of people in Bangladesh.

15. It is conceded by counsel that the applicant has shown a lack of candour in the past, particularly in the context of his initial

application for asylum, however it is submitted that he has at all times maintained that his stated fear which caused him to flee from

his home country relates to the raid by police on the BNP party meeting held his house and the persecution of BNP party members in

this regard. It is stated that the entry and exit passport stamps confirm the applicant’s contention that he was in Bangladesh when

the claimed BNP meeting in his house was held and that he remains credible on the underlying basis for his stated fear. Counsel also

refers to further country of origin information in the form of a newspaper article submitted to the Minister (and which the Minister

does not appear to doubt) which shows the applicant running for mayor in 2002, information which it is said underpins the applicant’s

contention that he was politically involved in Bangladesh.

16. Counsel refers to the test to be applied by the court in this injunction application and notes that Laffoy J. in the Supreme Court in

P.B.N. [DR Congo] v. Minister for Justice & Equality [2014] IESC 9, examined the principles set out in Okunade and stated (at

paragraph 26):

“the question for this Court is whether, on an arguable grounds basis, there is a credible basis for suggesting that a real

risk of significant harm would attach to the appellant on deportation. If the answer is in the affirmative, then, in the

absence of very weighty countervailing considerations, the balance of justice favours granting an interlocutory injunction

restraining deportation.”

17. In this regard, it is noted that Clarke J. in relation to the standard of proof applicable in an application for an interlocutory

injunction to restrain deportation, observed in Okunade that:

“9. 41 Requiring that the applicant establish a prima facie case does not seem to me to, in any way, deprive an applicant

of an effective remedy for the purposes of European Union law. The relevant applicant has access to a tribunal and is

only required to satisfy that tribunal (being the High Court) that there is an arguable case to be tried on the merits. It is

hard to see how an applicant who fails to meet that relatively low threshold could be said to have been denied an

effective remedy in the event that the court does not make an interlocutory order.”

18. It is submitted that in refusing the application for revocation, the Minister found that the applicant would not be in danger from

political violence in Bangladesh if he were returned to that country. It is contended in the Statement of Grounds that this finding is

unreasonable and that on the 3rd November 2014, this court in granting leave to bring these proceedings found that the applicant

had shown arguable grounds. It is contended that it has thus already been established on an arguable grounds basis that the

respondent’s finding that the applicant would not be in danger in Bangladesh is unreasonable. It is submitted that it logically follows

that it has been established on an arguable grounds basis that there is a credible basis for suggesting that there is a real risk of the

applicant suffering significant harm in Bangladesh if returned there.

19. While it is conceded that the court must ask itself different questions when considering an application for leave and when

considering whether to grant an interlocutory injunction, it is submitted that the tests are very similar, as confirmed by Clarke J. in

Okunade:

“9.21 What the first part of the Campus Oil test requires is that the applicant establish a fair or arguable case. However,

if an applicant was in a position to have an immediate hearing of the leave application, then it would be necessary to

establish a sufficient case in order that leave be granted. I find it difficult to understand how it can be argued that an

applicant, who could be refused leave by reason of failing to establish a sufficient arguable case, has an effective remedy

but an applicant who, pending leave, is, in order to meet the first leg of the Campus Oil test, required to meet a similar

(or in some cases, where substantial grounds would need to be shown to obtain leave, lower) standard is said to be

denied access or an effective remedy.”

20. In this light, it is therefore submitted that the applicant is entitled to an interlocutory injunction restraining deportation pending

the determination of the proceedings.

21. Counsel for the respondent, Mr. Anthony Moore B.L., notes in the first instance that the applicant made his application for asylum

on 27th May 2008 after being arrested on the 15th May 2008 during the course of an inspection of a restaurant. Counsel states that

the applicant’s claim for asylum was based on the ground of “political opinion” as he had been a member of the Bangladesh Nationalist

Party and had to go into hiding in 2007 in Bangladesh and remained in hiding until March, 2008, when he held an unauthorised political

meeting. The respondent notes that the applicant failed to disclose that he had used a passport to obtain two visas to enter the

United Kingdom, and that the latter occasion on which he entered the United Kingdom in 2007 coincided with the time during which he

had untruthfully claimed to have been in hiding and in fear of his life in Bangladesh.

22. In this regard, it is noted that in refusing his revocation application, the Minister took the view that he was not at risk in

Bangladesh as he had a low political profile and the political situation in Bangladesh had returned to normality, with the party of which

the applicant claimed to be a member participating in local elections with considerable success. Further, it is said that the Minister

also disbelieved the applicant’s narrative about why he had to flee Bangladesh, having regard to the fact that he was actually in the

UK for a considerable period of the time he claimed to have been in hiding.

23. Counsel submits that the ‘default position’ with regard to the operation of deportation orders is set out by Clarke J. in Okunade v.

Minister for Justice [2012] IESC 49. Clarke J. states:

“10.2 The entitlement of the executive of any country to exercise a significant measure of control, within the law, of its

borders is an important aspect of the public interest of any state. It seems to me, therefore, that a significant weight

needs to be attached to the implementation of decisions made in the immigration process which are prima facie valid. It

would, in my view, be an insufficient recognition of the legitimate entitlement of the state to ensure the orderly conduct

of the immigration and asylum process not to place a high weight on the need to respect orders and decisions made in

that process unless and until they are found to be unlawful. The importance to be attached to the exercise by the state

of its right to control its borders and implement an orderly immigration policy has been touched on by this court in a

number of decisions most recently in Meadows v. Minister for Justice, Equality and Law Reform [2010] IESC 3. In

Meadows Murray C.J. referred to ‘public policy, including the integrity of the asylum system’ as being part of the balance

which needed to be struck in decision making. Likewise Denham J., in the same case, noted that ‘the Executive has a

primary role in relation to policy and immigration.’ While those comments were made in a case involving an assessment of

substantive rights it seems to me that like considerations require that appropriate weight be attached to the orderly

implementation of immigration policy in determining where the balance of justice lies at the interlocutory stage.”

24. Further, counsel notes that Clarke J. commented:

“10.4 [I]n the absence of any additional factors on either side, it seems to me that, if faced simply with an assertion on

the part of the Minister that it is desired that a deportation order be enforced unless and until it be found invalid and an

assertion on the part of an applicant that the applicant in question does not wish to run the risk of being deported only to

be readmitted if the relevant proceedings are sufficiently successful, the position of the Minister would win out. It should

also be taken into account that, at least in many cases, the result of a successful judicial review challenge will not

necessarily lead to the applicant in question being entitled to remain indefinitely in Ireland or if already out of Ireland to be

entitled to come back to Ireland for the purposes of remaining here indefinitely. In very many cases the only consequence

of a successful challenge is, as has been pointed out, that issues of substance will require to be considered again or that

some further process will need to be engaged in before a final decision is made. That too is a factor to which appropriate

weight should be attached and which favours, in the absence of material countervailing factors, the implementation of a

deportation order. Of course, where the presence of the relevant applicant in Ireland might be necessary to enable any

subsequent process to be conducted or hearing to be held, that factor too would need to be taken into account,

although there are many ways (such as an by appropriate undertaking) by which such attendance, if found necessary,

could be facilitated.

10.5 The default position is, therefore, that an applicant will not be entitled to a stay or an injunction.”

25. Counsel also refers to the comments of McCracken J. in the Supreme Court in Cosma v. Minister for Justice (Unreported, Supreme

Court, 10th July, 2006) where the court refused to grant an injunction as it was believed that the effect would be to thwart the

operation of a perfectly valid deportation order and would, to some degree, prevent the operation of a perfectly valid and

unappealable High Court order.

26. The respondent submits that the Supreme Court made clear in Okunade that, absent strong countervailing considerations, the

default position when it comes to assessing the balance of convenience is that the Minister should be allowed to enforce the

deportation order. Counsel refers to the decision of this court in Khan v. Minister for Justice [2013] IEHC 186 in that regard. In that

case this court took into account certain factors in reaching its decision:

“I bear in mind certain factors when I seek to answer the question whether sufficient countervailing circumstances have

been addressed or have been explained to the court: first, the length of the marriage, and this marriage, it must be said,

is not of long duration. Secondly, I bear in mind that unlike a situation in Okunade, there is no question of any children

being deported in this case. There will, undoubtedly, be disruption to the relationship the children have formed with their

mother's new husband, but they will not be deprived of their father.

I also bear in mind that it is a natural consequence of any deportation that people will be deeply upset at the disruption

that such deportation will cause. I have regard to the manner in which such disruption was addressed by the Supreme

Court in Okunade, where at paragraph 10.6, the court said as follows:

‘Furthermore, if an applicant can demonstrate that deportation, even on a temporary basis, would cause more than what

one might describe as the ordinary disruption in being removed from a country in which the relevant applicant wished to

live, such a particular risk to an individual or a specific risk of irremediable damage then such factors, if sufficiently

weighty, could readily tilt the balance in favour of the grant of an injunction or a stay.’

I have come to the conclusion that the disruption and the disadvantage which has been urged upon the court as being

the countervailing circumstances which should displace the default position are not sufficiently weighty and are not of the

order which would warrant this court interfering with a deportation, the legality or validity of which has never been

challenged before this court.”

27. In this regard, it is submitted that the wrongful conduct and lack of candour of the applicant ought to weigh heavily in the

balance when deciding whether or not to refuse his injunction application. It is asserted that the applicant has not come to court

with clean hands and it is submitted that he should be refused injunctive relief as a result. Counsel refers the court to the dicta of

Hardiman J. in Zadeh v. Minister for Justice (Unreported, Supreme Court, 2nd November, 2007), Peart J. in Oyenyi v. Minister for

Justice (Unreported, High Court, 3rd July, 2007), Hogan J. in Y.M. v. Minister for Justice [2011] IEHC 452 and Cooke J. in AW v.

Minister for Justice [2010] IEHC 258 in support of this proposition.

28. The respondent submits that the underlying principle applicable in this case was discussed by Clarke J. in Okunade, who stated:

“9.19 [T]he same underlying principle applies in any application taken in the context of a judicial review which is designed

to determine what position is to pertain until the substantive judicial review proceedings in question have been finally

determined (including the position which is to pertain pending a contested inter partes leave application). The court is

required to make an order which minimises the risk of injustice. I am also satisfied that the so called Campus Oil test

provides a useful starting point in determining the proper principles to be applied in the analogous situation which arises

pending the hearing of a judicial review application.”

29. In this regard it is contended that the Supreme Court’s approach applies equally to pre-leave and post-leave applications for

injunctions:

“9.24 This case is, however, concerned with is the proper test to be applied where there is an interlocutory application

before the court which is designed to prevent the implementation of a deportation order pending either a relevant leave

application in judicial review proceedings or, indeed, at least in theory, post leave and pending a full hearing. For the

reasons already analysed I am satisfied that the fair or arguable issue to be tried leg of the Campus Oil test must also be

met in the context of judicial review applications.”

30. Counsel submits that the Supreme Court recognised that it may be appropriate to give effect to orders such as deportation orders

pending trial and that the same applies even where, as in this case, arguable grounds have been shown for contesting an

administrative decision. The comments of Clarke J. are noted that:

“9.30 …An order or measure which is at least prima facie valid (even if arguable grounds are put forward for suggesting

invalidity) should command respect such that appropriate weight needs to be given to its immediate and regular

implementation in assessing the balance of convenience.”

31. The respondent asserts that a case-by-case analysis is required and notes that at para. 9.42 of Okunade Clarke J. said that as

part of the “overall test” the court is entitled to place all due weight on the strength or weakness of the applicant’s case.

32. Counsel notes that in P.B.N. [DR Congo] v. Minister for Justice [2014] IESC 9, the Supreme Court acknowledged this view, subject

to the qualification that the issues arising do not involve “detailed investigation of fact or complex questions of law” as per Lord

Diplock in American Cyanamid Co. v. Ethicon Ltd. [1975] 1 AC 396.

33. It is noted that Laffoy J., having found that the applicant had established an arguable case for the contention that the Minister

had erred in his assessment of her claims, went on to consider where the greatest risk of injustice would lie:

“26…Obviously, in applying that test, the Court must have regard to the factors outlined by Clarke J. at (i) to (iv) of

paragraph (b) of ‘the overall test’ set out in paragraph 9.42 of his judgment quoted earlier and, in particular, the Court

must have regard to guidance given as to the application of those factors to immigration cases in the Okunade judgment.

The aspect of that guidance which, in my view, is of most relevance to the circumstances of this appeal is to be found in

paragraph 10.7. Applying the passage from that paragraph quoted at paragraph 10 earlier, the question for this Court is

whether, on an arguable grounds basis, there is a credible basis for suggesting that a real risk of significant harm would

attach to the appellant on deportation. If the answer is in the affirmative, then, in the absence of very weighty

countervailing considerations, the balance of justice favours granting an interlocutory injunction restraining deportation.

27. I am satisfied that there is, on an arguable grounds basis, a credible basis for suggesting that a real risk of significant

harm would attach to the appellant if the Deportation Order were implemented. I am also satisfied that no very weighty

considerations have been identified to displace the balance of justice being in favour of granting an injunction. In reaching

that conclusion, I have had regard to whether this case falls within the category of judicial review cases identified by

Clarke J. in paragraph 10.7 in the judgment in the Okunade case. There Clarke J. referred to a situation where the Court is

in a much better position to form a judgment on the question whether there is a real risk of serious harm should a

deportation order be implemented because the applicant has had the opportunity to have the facts underlying his or her

claim to such a risk analysed by a series of administrative and judicial bodies. While there was before the High Court and

there is before this Court, not only the lengthy file examination carried out on the s. 3(11) application, but also a review

carried out by an official in the Ministerial Decisions Unit of the respondent’s Department on the s. 17(7) application, in my

view it is not possible, and it would be inappropriate to attempt, to form a view that there is not, on an arguable grounds

basis, a credible basis that there would be a real risk of harm to the appellant if she were deported to the DRC. The

reality is that the evidential conflicts raised on the documents considered by the administrative bodies and exhibited on

this application, including the Unsafe Return Report and the UKBA Report, which concern the fundamental right to be

protected from serious risk of harm, are such that it is not the function of the Court to attempt to resolve them on an

interlocutory application.”

34. It is submitted by the respondent that this case is distinguishable from that of P.B.N. While it is conceded that it is common to

both cases that arguable grounds have been identified for the contention that the Minister erred in making the decision under

challenge, it is submitted that in this case, unlike in P.B.N., there are “weighty considerations” which displace the balance of justice

being in favour of granting an injunction. In particular, counsel submits that the applicant has engaged in wrongful conduct and shown

a lack of candour throughout the asylum, subsidiary protection, and leave to remain processes, specifically asserting that he was in

hiding in fear of his life in Bangladesh in 2006 and 2007, whereas in fact he was actually lawfully in the United Kingdom during that

period and freely returned to Bangladesh thereafter.

35. It is submitted the applicant, even in these proceedings, has skirted the ramifications of the lies told by him throughout the

asylum process in respect of his overall claim. In this regard, it is stated that he admits that he was in the UK and returned to

Bangladesh on the 19th March, 2008, but fails to explain how, if at all, he managed to organise a meeting in his house on the 25th

March, 2008 which contravened a state of emergency and ultimately led to him fleeing his home country.

36. It is submitted that there is no credible basis that there would be a real risk of harm to the applicant were he to be deported

pending a post-leave hearing. It is contended that, at its height, his claim is that he has a low political profile in Bangladesh on

account of his activities with the BNP party. It is noted that he sought to argue in his revocation application that he would be at risk

arising out of electoral violence in January 2014, however it is submitted that the information obtained by the Minister showed that

there was nothing to suggest low-level BNP activists were being detained by the authorities and importantly that political tensions in

Bangladesh had abated, with reference being made to the BNP’s participation and success in local elections later that year. It is

submitted that the applicant has 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 with regard to the BNP if returned.

37. Therefore, counsel contends that unlike in P.B.N., there are no evidential conflicts raised on the documents before the court.

Using the language of Clarke J. in Okunade (at paragraph 10.6), it is submitted that it is relatively straightforward to establish on the

evidence that a person with the limited political profile of the applicant and the current situation in Bangladesh does not give rise to a

“particular risk to the individual or a specific risk of irremediable damage” in the event of his return there.

38. Finally, counsel for the respondent notes that the applicant maintains that there would be no risk of “floodgates” opening if an

injunction is granted in a case such as this where a refoulement issue is raised and leave is granted on it at the ex parte leave stage.

However, it is submitted that the success of his application for an injunction would in fact have the effect of rendering the considered

judgment of the Supreme Court in Okunade an exercise in theory and stymie the enforcement of deportation orders. The basis for this

contention is that any experienced legal team would be able to identify some arguable grounds (the threshold being low) for the

contention that returning their client to his country of origin would breach the prohibition on refoulement or otherwise expose him to

ill-treatment. Counsel submits that this is precisely why the Supreme Court in Okunade stated that:

“While, therefore, important and fundamental rights can be involved it does not necessarily follow that, in each case in

which an interlocutory injunction is sought, there is any credible basis for suggesting that truly fundamental rights are, in

fact, involved.”

39. It is submitted that this is precisely the type of case the court had in mind and that the argument that the applicant would be at

risk in Bangladesh on the basis of his low political profile in wholly illusory. It is therefore submitted that the injunction sought should

be refused.

Analysis:

40. The applicant has sought revocation of a deportation order because of a changed policitical situation in his country of origin.

However, the reasons for his fears of persecution are not new and have been rejected in a series of decisions given by ORAC, the

RAT and the Minister on his application for subsidiary protection and in his recent revocation application.

41. Interlocutory applications to prevent a deportation in proceedings against a refusal of revocation because of a rejection of the

alleged risk of refoulement are governed by the principles set out in Okunade. In other words, it is not possible to avod the Okunade

rules by simply asserting a fear of refoulement. That leave has been granted to challenge a refusal to revoke does not establish to

the standard required the existence of circumstances which tip the balance in favour of restraining deportation and against the well-

established default position which is that deportations must be effected pre-trial if the State so desires.

42. The principles governing an application for interlocutory relief where an applicant alleges that the rejection by the Minister of his

stated fear of refoulement was unreasonable have been restated by Laffoy J in P.B.N: “the question for this Court is whether, on an

arguable grounds basis, there is a credible basis for suggesting that a real risk of significant harm would attach to the appellant on

deportation. If the answer is in the affirmative, then, in the absence of very weighty countervailing considerations, the balance of

justice favours granting an interlocutory injunction restraining deportation”.

43. Ultimately, (assuming the applicant has met the basic Campus Oil / Okunade test but faces the default position in favour of

deportation) to succeed, the applicant must persuade me on an arguable grounds basis that he faces a real risk of significant harm if

deported.

44. Reviewing the applicant’s narrative of his fear of harm from its first telling to its final iteration in these proceedings, it is very

difficult to identify evidence of a real risk of significant harm attaching to the applicant’s circumstances. No evidence has been

presented to the court that persons such as the applicant are at real risk of significant harm in Bangladesh. The arguability of this

proposition has not been established. The evidence which has been presented is the same evidence presented on the application for

revocation of the deportation order. Nothing in this material supports the suggestion that low echelon members of the applicant’s

political party are at risk of harm.

45. I see no difference between the approach to assessing the existence of fear of harm in a refoulement context to the approach

adopted in the general refugee context. A person who asserts fear of harm as the basis for resisting deportation must establish a

subjective basis of the fear as well as some obejective basis for the fear. In accordance with the dicta of Laffoy J., the standard to

which this must be established on an interlocutory basis is not very high. Arguable grounds for the existence of both the subjective

and objective elements of the fear are needed.

46. It is important to note that the applicants’s alleged fears which form the basis of this application are the same as the fears which

formed the basis of his various applications for asylum and subsidiary protection and revocation, though of course he says that the

current political environment in Bangladesh has increased the risk of harm.

47. The applicant has consistently sought to demonstrate the existence of the subjective element of his fear by saying that he was

forced into hiding in Bangladesh between February 2007 and March 25th 2008. Having been through the international protection

regime, it emerged that he had not been in hiding in Bangladesh or anywhere else between the 15th of November 2007 and the 19th

of March 2008. The applicant accepts that he was visiting the United Kingdom recreationally at that time. This untruth presents two

problems for the applicant. As indicated, it harms his claim that his fear of persecution forced him into hiding. Secondly, the fact that

he returned from the UK to the source of his fear, suggests that he had no such fear at the relevant time. The applicant has made no

effort in these proceedings to deal with the extent to which a major element of his evidence in support of the existence of his

subjective fear is false. He should, on this application, attempt if he can to undo the harmful effect such untruths have on his general

credibility because the rules require him to establish that he fears real harm, on the basis of arguability. For such a claim to be

arguable at this stage, the negative effects of the untruths as to his fears must be addressed, however minimally, and this has not

occurred. Having failed to deal with this issue in any way in this application it is very difficult for the court to accept that he has

established even to the relatively low standard required that he personally fears significant harm in Bangladesh. The applicant’s

evidence in support of the subjective element of the fear is not credible because of the untruths he told in the past about being in

hiding and this damage has not been repaired on this application.

48. It is recalled that the applicant’s case is that he organised a political meeting on the 25th of March 2008. He says that he will be

persecuted on his return because he organised this meeting which indicates his political affiliation and that the risk of persection has

increased because of recent events in Bangladesh. His credibility as to his core claim has been consistently rejected by various Irish

authorities. That case having been rejected in decisions which have not been disturbed by this court, it seems to me that some effort

must be made in this interlocutory application to suggest why the rejection of his claims for asylum and subsidiary protection are

wrong. Some such effort is required because the basis for the fear he asserts in this application is the same basis for the fear he

asserted in the rejected applications for international protection.

49. Other negative factors about the applicant’s history are before the court and are unaddressed. He has not offered this court any

explanation as to how he came to be arrested in a restaurant in Meath in 2007 and only made a claim for asylum after his arrest. He

has not attempted to explain to the court why he returned to Bangladesh from the UK and how such return is to be understood in the

context of his stated fear of persecutory forces in Bangladesh.

50. In contrast to the position of the applicant in P.B.N., this applicant does not rely on evidential conflicts in the material considered

by the officials and the Minister on his application for revocation. I accept the respondent’s argument that the applicant has 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. He asserts that the Minister has taken an unreasonable view of the county of origin information. In

P.B.N., the applicant persuaded the Supreme Court that there was a credible basis for a fear of harm estabished to the standard of

arguability because of the evidential conflicts apparent in materials exhibited to the court as to circumstances in the Democratic

Republic of Congo. The court said that it was not its function to resolve such conflicts at the interlocutory stage but once the

evidential conflicts were shown to exist, the applicant met the test to resist deportation before trial. In this case, no evidence has

been adduced to suggest that the Minister’s conclusion that the applicant will not face risk of harm is wrong. Though enough has

been done by way of leagl argument to secure a grant of leave, more is required to obtain an interlocutary injunction. I acknowledge

that the applicant has exhibited a report written by Amnesty International entitiled “Stop Them Now”, dated September 2014. It is

not apparent how the mischief described in that document relates to the position of the aplicant or, more importantly, how it

contradicts the material considered by the Minister and the conclusion reached that the aqpplicant did not face a risk of refoulement.

The conflict of evidence which was central to the decision of Laffoy J. in P.B.N. is absent in this case.

51. I refuse the application for an interlocutory injunction to enjoin deportation of the applicant.