The High Court granted an interlocutory injunction preventing the deportation of an anonymised Afghan applicant while his application for leave to pursue judicial review is determined. Mr Justice Hogan said the case raised serious issues to be tried but did not decide whether the applicant is entitled to protection.
The applicant said he left Afghanistan for Iran in 1999, where his employer introduced him to Christianity. He claimed that after the Taliban’s overthrow in 2001, he fled Iran because he feared for his life if returned to Afghanistan. He arrived in Ireland in 2005. The judgment records that he had been involved with Jehovah’s Witnesses and that, at the injunction hearing, his counsel said he was then involved with an evangelical Christian church. That latter information was not on affidavit, and the judge gave no details.
The applicant’s asylum claim was rejected by the Refugee Appeals Tribunal in 2008 on credibility grounds. Those findings were not challenged by judicial review. His application for subsidiary protection was refused in October 2010, and a deportation order followed. He began these proceedings within the statutory 14-day period.
For the injunction application, the judge considered whether the applicant had made an arguable case that his post-arrival religious activity could expose him to persecution if returned. He noted that country information described the position of Christians in Afghanistan as difficult and said conversion from Islam could be treated as apostasy, punishable by death under some interpretations of Sharia law. He also criticised as “hopelessly optimistic” the Minister’s file assessments suggesting that the applicant could seek protection from Afghan police and courts. The Minister’s counsel did not stand over those statements for the injunction application.
The judgment examined whether an applicant’s conduct could be opportunistic and still create a real risk on return. Hogan J said the key question was whether the person objectively faced a well-founded fear of persecution; bad faith could justify close scrutiny but did not automatically rule out protection. He considered that the Tribunal’s reasoning appeared to conflate an opportunistic conversion with a pretended conversion, and that the Minister’s decisions relied heavily on that reasoning without addressing how Afghan authorities might treat the applicant’s apparent renunciation of Islam.
The court held that these matters warranted examination at a full hearing and that damages would not be an adequate remedy given the asserted risk to the applicant’s life or person. The injunction preserves the position pending the decision on leave. It is not a final ruling on the judicial review, a grant of refugee or subsidiary protection status, or a determination of the applicant’s account. Hogan J also gave an independent basis for interim relief: under his recent ruling in another case, timely proceedings generally precluded implementation of a deportation order pending the leave decision unless the application was clearly unsustainable. He found this application raised significant issues.