The High Court refused to stay the deportation of an anonymised Pakistani applicant while his application for leave to bring judicial review proceedings was pending. It said the applicant’s unchallenged conduct in the asylum process meant he had forfeited access to that discretionary relief.
The judgment, delivered by Mr Justice Hogan on 6 December 2011, concerned an application for an interlocutory injunction after the Minister declined to give an undertaking not to deport the applicant before the leave application was decided.
The applicant arrived in Ireland in August 2009 and sought asylum, saying he had been threatened by members of an upper-caste Pakistani family whose daughter he had allegedly eloped with. The Refugee Appeals Tribunal rejected his asylum application on credibility grounds in May 2010. An application for subsidiary protection was refused on credibility grounds in June 2011, and a deportation order was made in August 2011 and notified later that month.
The judgment records that the applicant had not challenged the Tribunal’s decision. The Tribunal had found that he denied making an earlier Irish visa application, despite similarities between his photograph and signatures and those on the visa and passport documents. It concluded that he had failed to cooperate and had provided false evidence and representations. The High Court noted that the applicant’s affidavit in the judicial review proceedings did not address those findings.
Justice Hogan said he would assume, for the purpose of considering a stay, that at least some of the applicant’s judicial review grounds were arguable. He referred to his view in an earlier case that applicants would generally be entitled to a stay pending a decision on leave, unless the application was plainly unsustainable in law or special circumstances applied.
Here, he found special circumstances. The alleged deception went to the heart of the asylum application and was relevant to the discretionary relief sought. He distinguished the case from an earlier judgment involving family-related considerations, which he said were not present here.
The court refused a stay pending determination of the leave application. The judgment does not determine the leave application itself or the substantive judicial review challenge.