K. I. K. [Pakistan] v Refugee Appeals Tribunal and Others

• Jurisdiction: Ireland
• Judge: Mr. Justice Cooke
• Judgment Date: 25 November 2011
• Neutral Citation: [2011] IEHC 444
• Court: High Court
• Date: 25 November 2011

[2011] IEHC 444

THE HIGH COURT

[No. 1005 J.R./2011]

K (K I)[Pakistan] v Refugee Appeals Tribunal & Ors

MR JUSTICE COOKE

APPROVED TEXT

JUDICIAL REVIEW

BETWEEN

K. I. K. [Pakistan]

APPLICANT

AND

THE REFUGEE APPEALS TRIBUNAL, THE MINISTER FOR JUSTICE, EQUALITY, AND LAW REFORM THE ATTORNEY GENERAL AND IRELAND

RESPONDENTS

Abstract:

Immigration - Asylum law - Judicial review - Interlocutory Injunction - Restraining deportation- Pakistan - Taliban - Relocation - Whether applicant could provide credible evidence of a real and current risk of irreparable harm

Facts: The proceedings related to an application for interlocutory relief restraining the Minister from implementing deportation orders. The question arose as to whether the applicant would face irreparable harm if deported to Pakistan. He claimed that his family had suffered greatly at the hands of the Taliban.

Held by Cooke J. that it was necessary for the Court to refuse the application for interlocutory relief. There was no credible evidence of a real and current risk that the applicant would be exposed to irreparable harm if deported. The Court had queried the lack of information about his family and the safety of his own family, neither of which appeared to support his contentions. He had never experienced any actual mistreatment in the past and could have relocated elsewhere in Pakistan.

Reporter: E.F.

1 1. This is one of a large number of applications which have been made to the Court during the last fortnight for injunctions restraining the respondent Minister implementing deportation orders pending the hearing of the applications for leave to apply for relief by way of certiorari in respect of those orders.

2 2. It is difficult at times to avoid the impression that at least some of these applications are brought upon an assumption that because what is sought is the restraint of expulsion of a person from the State and because the applicants have expressed fears of personal harm in their country of origin, some special approach to interlocutory relief is appropriate. It appears to be believed that once such a possibility of personal harm is mentioned, an applicant is entitled almost as of right to remain in the State until at least the application for leave to seek judicial review has been heard. It seems to be assumed that an injunction will be readily granted once a fair issue is identified because, as between the applicant and the Minister, it is always more convenient to allow the applicant to remain where he or she is at the moment. That, in the view of the court, is a mistaken assumption.

3 3. It is perhaps useful therefore to recall once more the description of the basis on which interlocutory relief is granted as given in the judgment of O'Higgins C.J. in the Campus Oil case (Campus Oil v Minister for Industry and Energy (No. 2) [1983] IR 88).

"Interlocutory relief is granted to an applicant where what he complains of is continuing and is causing him harm or injury which may be irreparable in the sense that it may not be possible to compensate him fairly or properly by the award of damages. Such relief is given because a period must necessarily elapse before the action can come for trial and for the purpose of keeping matters in status quo until the hearing. The application is made on motion supported by affidavit. …"

In cases where rights are disputed and challenged and where a significant period must elapse before the trial, the Court must exercise its discretion (to grant or refuse interlocutory relief) with due regard to certain well-established principles. Not only will the Court have regard to what is complained of and whether damages would be an appropriate remedy but it will consider what inconvenience, loss and damage might be caused to the other party and will inquire whether the applicant has shown that the balance of convenience is in his favour."

4 4. Thus, the first question the Court must ask itself is whether the applicant for the injunction raises a fair issue to be decided at the trial or, in these cases, at the hearing of the leave application. The second question the Court must consider is whether it is necessary for the Court to intervene to impose the requested restraint upon the respondent in order to preserve the status quo because if it does not do so, some material and detrimental change may come about in the applicant's situation by the respondent's action which cannot later be reversed by requiring the respondent to undo what has been done in the meantime, or be repaired by compensation should the applicant's substantive claim succeed.

5 5. If the answer to that second question is in the negative, no injunction will be granted. If it is in the affirmative, the Court must consider the third question as to the impact of the restraint upon the respondent's position until the rights are determined and whether, if the applicant fails, the applicant will be in a position to make good any disadvantage or loss which the respondent will have been compelled to bear in the meantime. It is only where the answer to that question is in the negative, that the Court then proceeds to assess where the balance of convenience lies as between granting or refusing the interlocutory injunction.

6 6. When these questions are transposed to the context of contested deportation orders, particular considerations arise due primarily to the character of the claim that the applicant seeks to make against the respondent and the position or status from which the claim is required to be made. Unlike the typical plaintiff seeking an injunction to restrain a trespass, a breach of contract or unlawful...