As (Bangladesh) v Minister for Justice

• Jurisdiction: Ireland
• Judge: Ms. Justice Stewart
• Judgment Date: 07 July 2015
• Neutral Citation: [2015] IEHC 417
• Court: High Court
• Docket Number: [2014 No. 631 J.R]
• Date: 07 July 2015

[2015] IEHC 417

THE HIGH COURT

JUDICIAL REVIEW

Stewart J.

[2014 No. 631 J.R]

BETWEEN

A.S. [BANGLADESH]

APPLICANT

AND

THE MINISTER FOR JUSTICE AND EQUALITY

RESPONDENT

Asylum, Immigration & Nationality – S. 3 (11) of the Immigration Act 1999 – Revocation of deportation orders – Fear of persecution – Whether evidence of applicant credible

Facts: The applicant sought an order for quashing the decision of the respondent refusing to revoke the deportation order of the applicant. The applicant contended fear of persecution in the country of origin owing to political feud as the applicant was a supporter of one of the political parties.

Ms. Justice Stewart refused to grant an order of certiorari to the applicant. The Court held that there were stark differences between the applicant's contentions and the evidence that led to diminish the applicant's credibility. The Court found that the applicant's evidence revealed that the time period during which the applicant claimed to have been hiding in the country of origin, he was visiting the U.K. The Court held that the asylum claims alleging fear of persecution must be assessed subjectively taking into account the full picture that emerged from the circumstances of the case. The Court found that the applicant's frequent visits to the U.K. and returns to the country of origin did not lead to the inference of any well-founded fear of persecution. The Court held that the mala fide conduct of the applicant during the entire asylum process would invite the application of s. 20 (2) of the Refugee Act 1996. The Court opined that the function of the respondent while examining the application of revocation of deportation orders was not to again open the entire evidence but to limit its examination for evaluation of any new material facts that were not available earlier. The Court found that the respondent was not obliged to give detailed reconsideration to the question of deportation in case there had already been refusal of the first deportation order or in the absence of any measures taken to challenge the first deportation order.

JUDGMENT of Ms. Justice Stewart delivered on the 7th day of July, 2015

1 This is a post-leave application for judicial review seeking, inter alia, the following reliefs:

a) An order of certiorari quashing the decision of the respondent dated 25th August, 2014, to refuse to revoke the deportation order made in respect of the applicant.

b) An order directing that the applicant's application for the revocation of the deportation order pursuant to s.3(11) of the Immigration Act 1999 be remitted to the respondent for full reconsideration.

c) A declaration that the decision of the respondent dated 25th August, 2014, to refuse to revoke the deportation order was made in breach of the applicant's right to natural and constitutional justice.

d) An interim and/or interlocutory injunction restraining the respondent from taking any steps to deport the applicant pending the determination of the proceedings herein.

BACKGROUND

2 The applicant is a Bangladeshi national, born on 1st April, 1971. He states that he was married on 6th January, 2002, and has one son and one daughter. His family remains in Bangladesh with his father-in-law. The applicant states that he was a lecturer in political science at a university in Bangladesh and was an active member of the Bangladeshi Nationalist Party (BNP). Upon the implementation of emergency legislation enacted on 11th January, 2007, the applicant states that the government began arresting and torturing members of the opposition parties, including BNP members. The applicant states that on 2nd February, 2007, he was dismissed from his employment because of his political involvement.

3 The applicant obtained a UK visa and travelled lawfully to the UK on the 11th April, 2006, with the stated purpose of visiting educational institutes. The applicant returned to Bangladesh on 1st August, 2006. The applicant subsequently obtained a further UK visa. He travelled to the UK again on the 15th November, 2007, and returned to Bangladesh on the 19th March, 2008, as is confirmed by entry and exit stamps on his passport. The applicant failed to disclose these trips to the UK when applying for refugee status in Ireland. He stated on affidavit sworn on 29th October, 2014, that he feared if he revealed these visits to the UK, he would be transferred to the UK and from there would be deported to Bangladesh. The fact that the applicant had previously travelled to the UK was made known to the respondent by the UK authorities rather than by the applicant himself.

4 Following the applicant's return to Bangladesh on the 19th March, 2008, he stated that he arranged to have a BNP party meeting in his house on the 25th March, 2008. He stated that he fled when the police raided the house during the meeting. Family and BNP colleagues assisted him in obtaining the services of an agent to enable him to leave the country, which he did on the 1st April, 2008, travelling to Ireland by plane and ship via Iran and Turkey. He arrived in Ireland on the 30th April, 2008, suffering from ill-health as a result of the sea journey. He initially stayed with some Bangladeshi nationals in Trim, County Meath and before applying for refugee status was arrested in Trim on the 15th May, 2008, for not having appropriate immigration documents. He applied for refugee status on the 27th May, 2008.

IMPUGNED DECISION

5 The applicant was refused refugee status and subsidiary protection. By letter dated the 9th September, 2011, he was informed that the respondent had signed a deportation order in respect of him. Judicial review proceedings challenging the deportation order were subsequently withdrawn by the applicant when the respondent presented him, in March, 2013, with the information regarding the trips to the UK that he had previously failed to disclose. On the 6th November, 2013, the applicant applied under s.3(11) of the Immigration Act 1999 for the revocation of the deportation order. This application was updated following the serious political violence in Bangladesh surrounding the January, 2014 elections. Following the issuing of judicial review proceedings, seeking, inter alia, an injunction restraining deportation, the respondent refused the s.3(11) revocation application on the 16th May, 2014, and subsequently agreed to withdraw the said refusal in July, 2014 following the issuing of further judicial review proceedings. Updated submissions on the s.3(11) revocation application were made on the applicant's behalf, and by letter dated the 1st October, 2014, he was informed that the application had been refused.

LEAVE

6 Leave was granted to bring the proceedings herein to seek an order of certiorari quashing the decision of the minister of 25th August, 2014, to refuse to revoke the deportation order made in respect of the applicant, by MacEochaidh J. following an ex parte application on the 3rd November, 2014, and an interim injunction restraining deportation was also granted on that date.

INTERLOCUTORY INJUNCTION APPLICATION

7 On Monday 16th March, 2015, my colleague, MacEochaidh J. delivered an extensive written judgment in respect of an application for an interlocutory injunction restraining the deportation of the applicant to Bangladesh pending the determination of these proceedings. Following the delivery of the said judgment an application was made for an early hearing date and the matter was listed provisionally before the Court on Thursday 19th March, 2015. The judgment of my colleague MacEochaidh J. was opened to this Court during the course of the hearing. The respondent pointed out that the applicant was not in a position to contest the fact that the judgment contained some highly pertinent comments on the applicant's conduct and candour to date within the asylum process, which will be detailed further in this judgment.

APPLICANT'S SUBMISSION

8 Mr. Anthony Hanrahan B.L., appearing on behalf of the applicant, submitted that the respondent had an irrational view of the timeline of events. The reasoning upon which the respondent based the decision, impugned herein, can be found in a departmental examination document dated the 25th August, 2014. The applicant submitted that a central basis for the respondent's decision appears to be that the applicant's presence in the UK fundamentally undermines his narrative of past persecution. However, the applicant submitted that the respondent's finding in this regard is irrational in view of the timeline of events since the central reason for the applicant's fear of the authorities in Bangladesh is that he is known to have hosted a BNP meeting on the 25th March, 2008, and to have evaded arrest on that occasion by fleeing from his house and going into hiding. The applicant argued that he has never contended that the loss of his job and the political atmosphere in Bangladesh in 2007 was sufficient to ground an application for refugee status or that his fear of persecution arises from same. The stamps on the applicant's passport show that he re-entered Bangladesh on the 19th March, 2008, but the respondent points to the time spent in the UK as a basis for finding that his claim to have hosted a BNP meeting in his house in Bangladesh on the 25th March, 2008, was seriously undermined. The applicant submitted that the respondent accepted that the applicant was in Bangladesh on the 25th March, 2008, and was an active BNP member. The applicant further submitted that the fact that the applicant failed to disclose his trips to the UK when applying for refugee status does not provide a rational basis for doubting that the meeting on the 25th March, 2008, took place as claimed.

9 The applicant asserted that the respondent's view that the applicant came to this State for...