The High Court has refused two applicants leave to challenge the Department of Justice’s refusal to consider their requests for subsidiary protection, and rejected both applications for interim injunctions against deportation.
The cases were heard together. Mr Justice Birmingham’s judgment, delivered on 26 June 2007, said there was an arguable case that the 2006 protection regulations did not exclude people whose deportation orders predated the rules’ commencement on 10 October 2006. The Minister’s counsel conceded that point. The court did not decide the underlying interpretation issue.
Both men were detained at Cloverhill Prison awaiting deportation. The first applicant, identified as D. W. G., had a deportation order dated 21 September 2005. The second, M. T. O., had an order dated 20 February 2002. Each sought judicial review of the decision not to consider subsidiary protection and an injunction to prevent deportation.
The judge refused leave in both cases, finding that the applicants’ conduct disentitled them to the discretionary remedy of judicial review. In D. W. G.’s case, he cited falsehoods in the asylum application, the failure to appeal the refusal of refugee status or challenge the deportation order, and the late raising of changed family circumstances. The judge described the asylum account as fictional and said the initial judicial review application lacked candour.
For M. T. O., the judge cited more than five years in the State in breach of the deportation order, during which the judgment said he was committing a criminal offence. The court noted that his challenge to the June 2007 decision was prompt, but said he had not advanced his claimed risk of execution or torture earlier, despite having opportunities to seek to stop deportation.
The judge also considered the injunction requests on the assumption that leave had been granted. He said a real and substantial risk of execution or torture would weigh decisively in favour of an injunction. But he found no credible evidence of such a risk in either case, describing the claims before him as bare assertions. He therefore refused both injunctions.
The judgment refused leave and interlocutory injunctions only. It did not determine whether the applicants qualified for subsidiary protection or finally resolve whether the 2006 regulations applied to their earlier deportation orders.