BETWEEN:
T.M. (SOUTH AFRICA) (No.2)
APPLICANT
AND
THE MINISTER FOR JUSTICE AND EQUALITY AND THE COMMISSIONER OF AN GARDA S�OCH�NA
RESPONDENTS
AND
THE GOVERNOR OF CLOVERHILL PRISON
NOTICE PARTY
JUDGMENT of Mr. Justice Barry O'Donnell delivered on the 27th day of January, 2026
INTRODUCTION
1. This judgment concerns an application for judicial review in respect of a deportation order made by the first-named respondent ("the Minister") pursuant to section 51 of the International Protection Act 2015 ("the 2015 Act"). In accordance with section 26 of the 2015 Act, the identity of the applicant has been anonymised and any potentially identifying information has been presented in a manner which minimises the potential for the applicant to be identified.
2. The deportation order was accompanied by a notice requiring the applicant to leave the jurisdiction within 7 days. The deportation order and notice were issued on the 8 February 2024 and served on the applicant and his solicitors on the 13 February 2024. In addition, the Minister's s. 50 refoulement decision was provided to the applicant.
3. The applicant challenged the decision of the respondent on the basis of three arguments, which can be summarised as:
i. The failure to afford the applicant 28 days to challenge the deportation order under s. 5(oj) of the Illegal Immigration (Trafficking) Act 2000 (as amended) renders the deportation order unlawful;
ii. The arrest and detention of the applicant prior to the expiry of the 28 days specified within the deportation order within which to challenge the order amounted to an unlawful curtailment of the right to an effective remedy;
iii. The s. 50 refoulement consideration failed to have regard to the risk of harm to the applicant as set out in submissions provided by the applicant dated the 1 November 2023.
4. An unusual feature of these proceedings is that shortly after the initial filing of the statement of grounds and verifying affidavit, the applicant was permitted to commence an inquiry pursuant to Article 40 of the Constitution challenging the legality of his detention on foot of the deportation order. On the 25 March 2024, Bradley J. delivered judgment on the inquiry and found that the detention of the applicant was lawful. The applicant invited this court to reach a different conclusion to that reached by Bradley J. on certain critical matters that were common to both sets of proceedings. For their part, the respondents contended that the decision of the applicant to pursue both an Article 40 inquiry and relief by way of judicial review, arising from the same facts and based on the same legal arguments, gave rise to a form of issue estoppel, or alternatively that the court should not depart from the reasoning of Bradley J.
BACKGROUND
5. The applicant is a national of South Africa and applied for international protection in this jurisdiction on the 14 December 2022. His claims for refugee status and subsidiary protection were rejected at first instance by the International Protection Officer (the "IPO") on the 16 February 2023. That decision was appealed to the International Protection Appeals Tribunal (the "Tribunal"). By way of decision dated the 28 September 2023, the Tribunal upheld the decision of the IPO refusing the applicant refugee status and subsidiary protection.
6. The claim for international protection was predicated on a contention that the applicant had exposed corruption at a specified university ("the University") which he attended in South Africa. The applicant argued that he was at risk of persecution and / or serious harm due to his membership of the Student Representative Council of the University and his role in exposing fraudulent activities committed by the owner of student accommodation. The IPO rejected this argument on the basis of an adverse credibility finding, which was upheld by the Tribunal on appeal. There was no application for leave to apply for judicial review in respect of that decision and accordingly it must be treated as final and conclusive for the purposes of the underlying statutory scheme.
7. Following the decision of the Tribunal, the applicant provided submissions in connection with a permission to remain review by the Minister pursuant to s. 49(7) of the 2015 Act. The permission sought was refused by the Minister in a decision issued on the 25 October 2023; and, in a similar way to the asylum decision, the applicant did not seek to challenge the decision. That decision was followed by a letter from the Minister dated the 26 October 2023, which provided that the applicant must leave the jurisdiction voluntarily and if he failed to do so, the Minister would issue a deportation order against him.
8. On the 1 November 2023, the solicitor for the applicant made a written submission in respect of a s. 50 refoulement consideration under the 2015 Act. The treatment of these submissions forms the basis of one of the grounds upon which the applicant is challenging the decision of the respondent. The Minister's refoulement consideration under s. 50 of the 2015 Act issued on the 7 February 2024, with the deportation order issuing on the 8 February 2024 ("the Order").
9. Significantly, the Order provided for a period of 7 days within which the applicant was to leave the State. The parties accepted that up to that point the usual scenario was that a party who had been served with a deportation order was given a period of 28 days or more to leave the State. The respondent explained that the 7-day period had been introduced on a trial basis for unsuccessful applicants for international protection who were from countries designated as a safe country of origin pursuant to the 2015 Act. The respondent considered that the 7-day period was justified in light of the accelerated procedure which applies to this class of applicant. The court was informed at the hearing of this action that the trial of the shorter period has since been suspended. However, the respondents stood over the use of the trial period and argued that the Minister had been entitled as a matter of law to implement the trial period.
10. The following sequence of events then ensued:
a. 8 February 2024: The Minister issued the deportation order.
b. 8 March 2024: The applicant was arrested pursuant to the deportation order.
c. 15 March 2024: The applicant's legal representatives finalised a statement of grounds for the purposes of these proceedings, together with a short affidavit sworn by the applicant. Among other matters, the applicant stated at para. 6 of his affidavit that he had "given my solicitors clear instructions to bring an application for judicial review on my behalf and to seek immigration bail."
d. 15 March 2024: The applicant's solicitors sent a pre-action letter to the respondents challenging the deportation order and his detention.
e. 19 March 2024: The applicant's solicitors filed papers in relation to these proceedings. One of the reliefs sought in the ex parte docket was for an injunction pending the determination of the proceedings restraining the Minister from taking any further steps in relation to the deportation order. However, no application for an interlocutory injunction was ever moved in these proceedings.
f. 22 March 2024: The applicant sought an inquiry into the legality of his detention pursuant to article 40.4.2 of the Constitution. The inquiry was directed by Bradley J. and he heard the application on the afternoon of the same day.
g. 25 March 2024: Bradley J. delivered a written judgment (T.M. v The Governor of Cloverhill Prison [2024] IEHC 216), determining that the detention of the applicant was lawful and setting out his reasons for refusing the relief sought. As the effect of that judgment on the issues in these proceedings formed a central part of the arguments in this case, it will be described in more detail below.
h. 5 April 2024: The applicant was deported from this jurisdiction to South Africa, just under two months after the deportation order of the 8 February 2024.
i. 17 July 2024: The applicant's solicitor, Siobh�n Conlon, swore an affidavit in these proceedings exhibiting the pleadings in the Article 40 inquiry and a copy of the judgment of Bradley J. from the 25 March 2024.
j. 22 July 2024: The applicant's ex parte application for leave to apply for judicial review was heard in the High Court. Leave to apply for the identified reliefs was granted and the applicant was permitted to file an amended statement of grounds.
k. 29 July 2024: The applicant issued the notice of motion seeking relief by way of judicial review, which was returnable to the 14 October 2024.
l. 16 October 2024: The respondents filed a statement of opposition together with a verifying affidavit sworn on the 11 October 2024 by Eileen O'Reilly, who is an Assistant Principal Officer in the Repatriation Division of the Department of Justice. Ms. O'Reilly's affidavit also exhibited a number of documents.
m. 6 December 2024: Ms. Conlon swore a further affidavit (confusingly titled as her 'third affidavit') in which she referred to and exhibited a series of redacted deportation orders made in relation to other persons. This was for the stated purpose of corroborating the applicant's contention that a 7-day period in a deportation order was not the usual practice.
n. 12 March 2025: Ms. O'Reilly swore a replying affidavit in which a number of observations were made in the nature of legal submissions. In addition, Ms. O'Reilly gave an explanation for the trial of a 7-day period - which applied to unsuccessful applicants from 'safe countries', including South Africa and Georgia - and stated that the use of the shortened period had "been suspended for operational reasons.". ��
o. 2 May 2025: The applicant was granted liberty to file and issue a second amended statement of grounds. That application was grounded on a further affidavit sworn by Ms. Conlon in which she explained that the applicant had been advised to amend the statement to include the words "arbitrary and capricious" in the fourth relief sought and legal ground E(4)(i).
p. 13 May 2025: The applicant filed his second amended statement of grounds.
RELIEF AND GROUNDS OF REVIEW
11. As noted, the applicant was granted leave to apply for judicial review on the 22 July 2024. Due to the arguments made about the relationship between these proceedings and the Article 40 proceedings, it is important to set out precisely what the applicant sought, and the grounds pleaded for that relief. Accordingly, the substantive relief the applicant was permitted to seek (as amended) are as follows:
"1. An Order of Certiorari sending forward to this Honourable Court for the purpose of being quashed the deportation order in respect of the Applicant made under Section 51 of the International Protection Act 2015 (the "2015 Act"), dated 8th February 2024 (the "Deportation Order") and issued on the 13th February 2024;
2. An Order of Certiorari sending forward to this Honourable Court for the purpose of being quashed the Notice of Deportation made in respect of the Applicant under s. 51(4) of the 2015 Act, dated 13th February 2024 (the "Notice of Deportation");
3. An Order of Certiorari sending forward to this Honourable Court for the purpose of being quashed the prohibition of refoulement decision made under s. 50 of the 2015 Act, dated 7th February 2024;
4. A Declaration that any direction made under s. 51 of the 2015 Act requiring an applicant to leave the State within a time period which is less than 28 days is unlawful as arbitrary and capricious and/or an impermissible restriction of the period of time permitted for the exercise of the right to an effective remedy granted by s.5(oj) of the Illegal Immigrants (Trafficking) Act 2000 (as amended by s.79 of the 2015 Act);"
12. The grounds set out in the second amended statement of grounds are:
"1. Illegality in the issuance of the Deportation Order: The Deportation Order was issued ultra vires the provisions of s. 51 of the International Protection Act 2015 (the "2015 Act") in the following respect:
(i) the Minister failed to ensure that the Applicant was issued with any, or any adequate, prohibition of refoulement determination under s. 50(2) of the 2015 Act, by which the Minister is obliged to have due regard to information submitted during the international protection process under s. 50(2)(b) and change of circumstances under section 50(3) of the 2015 Act. Specifically, the Minister failed to ensure that the Applicant was issued with the determination in respect of written submissions made on behalf of the Applicant on 1st November 2023 (the "Written Submissions"). The Minister has accordingly failed properly to appraise the Applicant of her decision with regard to the risk of harm to the Applicant as set out in the prohibition of refoulement submissions of 19th July 2023;
(ii) the Deportation Order is invalid on its face, as "the provisions of section 50 (prohibition of refoulement)" have not been complied with the Applicant's case;
(iii) the notice of deportation under s. 51(3) of the 2015 Act is invalid on its face, given the absence of reasons for the making of the Deportation Order, namely, the absence of reasons why the Minister was satisfied that "the provisions of section 50 (prohibition of refoulement)" have been complied with in the Applicant's case.
2. Failure to give reasons: The Deportation Order and the Section 50 decision are vitiated for the failure of the Respondent to give cogent reasons for the prohibition of refoulement decision under s. 50(3) of the Act:
(i) the Minister has not disclosed any or any adequate reasons why the prohibition of refoulement does not apply to the repatriation of the Applicant in light of the Country of Origin information ("COI") and documentation submitted in support of the request for a consideration under s. 50 of the 2015 Act;
(ii) the Respondent has not clearly disclosed the reasons why the Applicant should not be granted leave to remain under s.50(4) of the 2015 Act;
(iii) if a decision has been made under s.50 of the 2015 Act in respect of prohibition of refoulement, the Minister has not communicated any such decision to the Applicant.
3. Irrationality in prohibition of refoulement consideration: Without prejudice to the foregoing, if a prohibition of refoulement decision has been made in accordance with s. 50 of the 2015 Act, the Applicant contends that such decision is irrational and/or procedurally unfair for failure to have regard to the risk of harm to him as set out in prohibition of refoulement submissions of 1st November 2023:
(i) �The Minister has failed to give any regard to the risk of harm to the Applicant arising from his discovery of information indicating corruption and misappropriation of government funds by the actor of persecution or serious harm which he has identified.
4. Illegality in issuing the Notice of Deportation: The Notice of Deportation was made ultra vires the provisions of s.51(4) of the 2015 Act and/or s. 5 of the Immigration Act 1999 (the "1999 Act") and/or was arbitrary and capricious in the following respect:
(i) the Deportation Order was issued along with a notice under s. 51(3) of the 2015 Act and/or s.3(3)(b)(ii) of the 1999 Act (the "Notice of Deportation") dated 13th February 2024. The Notice of Deportation required the Applicant to leave the State within 7 days of the date of this letter (emphasis in the original) and if he did not do so he was "at risk of arrest and detention for the purpose of enforced deportation" (bolding in original). The terms of the Notice of Deportation were arbitrary and capricious and/or unlawful for failure to afford the Applicant his statutory right to 28 days in which to challenge the Deportation Order under s.5(oj) of the Illegal Immigrants (Trafficking) Act 2000;
(ii) the Applicant was in fact arrested and detained prior to the expiry of 28 days, which unlawfully curtailed his right to an effective remedy within 28 days of the Deportation Order."
13. For the purposes of the hearing of this application, the applicant's lawyers helpfully reduced the legal issues to the following three questions:
a. Whether the 7-day period was arbitrary or capricious?
b. Whether the process as a whole was procedurally unfair and in breach of the applicant's rights to an effective remedy under Irish and EU law?
c. Whether the Minister failed to comply with the requirements of s. 50 of the 2015 Act or failed to comply with the obligation to provide adequate reasons for the prohibition of refoulement decision and the deportation order?
RESPONDENT'S POSITION
14. The respondents opposed the application for judicial review both procedurally and substantively. In the first instance, the respondents submitted that the issue of whether the 7-day period within which the applicant was to leave the State was unlawful has been conclusively determined in Bradley J.'s Article 40 judgment. The respondents therefore argued that the applicant ought to have pursued an appeal of Bradley J.'s judgment if they wished to further litigate the legality of the 7-day period, and that it was not open to the applicant to seek to go behind the finding of the Court by maintaining judicial review proceedings on an issue already determined.
15. In relation to the issue of the s. 50 refoulement determination, the respondent argued that there is no obligation on the Minister to set out a detailed narrative discussing all evidence submitted by an applicant. Further, the respondent pointed to specific elements of the s. 50 refoulement determination which they argue illustrates that the Minister did in fact have regard to the country-of-origin information (the COI) submitted by the applicant.
THE DECISION ON THE ARTICLE 40 INQUIRY
16. The judgment delivered by Bradley J. was the subject of considerable focus during the hearing of the judicial review application. As noted above, the deportation order was dated the 8 February 2024 and was issued to the applicant on the 13 February 2024. The applicant had been arrested by An Garda S�och�na on the 8 March 2024. The judicial review application papers were filed in the Central Office on the 19 March 2024. The application for an inquiry was made on the afternoon of Friday, the 22 March 2024, and the requisite certificate was signed by the Assistant Governor of Cloverhill Prison on the same date.
17. The applicant made two main arguments regarding the asserted illegality of the detention: (a) that the requirement stated in the deportation order that the applicant leave the State within 7 days of the date of the letter (which was accepted to be the date of receipt, the 13 February 2024) amounted to an arbitrary curtailment of the applicant's statutory right to have 28 days to challenge the deportation order as provided for in s. 5(oj) of the Illegal Immigrants (Trafficking) Act 2000; and (b) that the applicant had not been provided with a s. 50 determination contained in a prohibition of refoulement report, and as such he had been denied his right to interrogate the basis on which the decision to deport him was held to be not contrary to s. 50 of the 2015 Act.
18. Bradley J. noted the overlap between the grounds agitated in the Art. 40 Inquiry and some of the grounds set out in the judicial review proceedings.
19. The Court rejected the argument that the time period in the deportation order curtailed the applicant's right to challenge the deportation order. This was on the basis that the applicant had incorrectly conflated two different pieces of legislation. In that regard, the court found that the requirement in s. 51(2) of the 2015 Act was that the deportation order identified the period within which the affected person is required to leave the State, and that period was clearly identified in the deportation order.
20. The court found that the imposition of a 7-day period did not curtail the applicant's right to bring a challenge. In that regard, Bradley J. noted that similar arguments had been rejected by the Court of Appeal in J.A. (Cameroon) v. Governor of Cloverhill Prison [2017] IECA 286, and by the High Court in the combined cases of Gayle v The Governor of the D�chas Centre and Gayle v Minister for Justice [2017] IEHC 718.
21. In J.A. (Cameroon), Hogan J. found that it was not necessary that an applicant who was legally represented should physically remain in the State to prosecute a case, and a number of cases were identified in which the courts had determined important points of law in immigration cases notwithstanding that the departure from the State technically may have been capable of rendering the cases moot.
22. In respect of the service of documentation issues, Bradley J. found, "for the purposes of this habeas corpus application", that the notification of the making of the deportation order in a letter from Clionadh Coughlan dated the 13 February 2024, the deportation order itself dated the 8 February 2024, and the Report of the consideration under s. 50 of the 2015 Act (prohibition of refoulement) from Conor Hayes of the IPO, dated the 7 February 2024, were served by registered post on the applicant at his last known address but was returned when it could not be delivered. In the premises and having regard to s. 5 of the 2015 Act, the court was satisfied that service should be deemed good.
23. The applicant did not challenge the decision on the Article 40 inquiry by way of any appeal.
ARGUMENTS
Deportation Order
24. In an obvious overlap with the arguments advanced in the Article 40 inquiry, in these proceedings the applicant made two arguments in relation to the deportation order. First, that the 7-day period within which to leave the jurisdiction voluntarily was arbitrary and capricious, and further that the arrest of the applicant prior to the expiration of 28 days was unlawful.
25. In relation to the 7-day period, the applicant noted that s. 51(2) of the 2015 Act provides for a deportation order to specify a period within which the subject of the order is to leave the State, with no minimum period articulated by the Act. The applicant submitted that s. 51(2) of the 2015 Act should be interpreted in conjunction with s. 5(oj) of the Illegal Immigrants (Trafficking) Act 2000, which provides that an applicant enjoys a 28-day period in which to challenge a deportation order by way of judicial review. The effect of the 2000 Act, so the argument went, was that a minimum 28-day notice period can be "read in" to the 2015 Act, in order for the applicant to properly enjoy the right to an effective remedy.
26. The applicant accepted that this argument was addressed by Bradley J. in T.M.; but this court was invited to reach a different conclusion. The argument was made that Bradley J.'s analysis - that the applicant's submission in the Article 40 inquiry "incorrectly conflates two pieces of legislation and makes an incorrect assertion that if [he] is deported that his rights to an effective remedy are set at nought" - was erroneous and that Bradley J. erred in his reliance on J.A. (Cameroon) v Governor of Cloverhill Prison [2017] IECA 286.
27. The applicant identified additional case law which he argued supports his contention that the 7-day notice period was unlawful. However, these submissions remain couched on the basis that the Bradley J. was incorrect in his findings and that the court ought to reach a different conclusion. It must be noted that the applicant did not suggest that the argument before this court was different in any material respect to the argument concluded upon in T.M.
28. �The respondents first submitted that the provisions of the 2015 Act are clear, placing emphasis on the fact that the provision specifies that the period in which a person must leave the State is "within such period as may be specified in the order". The respondents argued that the Oireachtas deliberately chose to reserve the question of when a person might be ordered to leave the State to the Minister's discretion as a matter of operational policy.
29. The core argument of the respondents on the grounds relating to the deportation order was that the High Court has already issued judgment on this issue and that applicant is using the instant judicial review proceedings to "re-litigate the same issues again before a different High Court." The respondents pointed to dicta of Bradley J. which they consider illustrate that the judgment of T.M. directly addressed the points litigated by the applicant.
30. At para. 18 of T.M., Bradley J. held:
[T]he main contention on behalf of the Applicant that his detention is allegedly unlawful because the 7 day requirement from 13th February 2024 to leave the State curtails his right to challenge the Deportation Order within the period of 28 days incorrectly conflates two pieces of legislation and makes an incorrect assertion that if the Applicant is deported that his rights to an effective remedy are set at nought. [Emphasis added]
31. Bradley J. further noted, at para 22., that the central point made by the applicant has already been addressed by the Court:
"...that the 7 day requirement to leave the State is an alleged arbitrary curtailment of what he states is the Applicant's statutory right to 28 days in which to challenge the deportation order under section 5(oj) of the Illegal Immigrants (Trafficking) Act 2000 (as amended and substituted) and his removal from the State - have been considered and rejected in previous applications. For example, in JA (Cameroon) v The Governor of Cloverhill Prison [2017] IECA 286."
32. In summary, the respondents submitted on the basis of Bradley J.'s judgment that it is not appropriate for the applicant to re-litigate the legality of the 7-day period before a differently constituted High Court and that the avenue of an appeal was not pursued by the applicant.
DISCUSSION
The abuse of process issue
33. I am reluctant to engage in a detailed manner with the argument that the attempt by the applicant to agitate the same argument in the Article 40 inquiry and in these judicial review proceedings amount to an abuse of the process of the court. The parties did not open or identify any authorities that address a situation where an applicant in judicial review proceedings seeks to make arguments that already have been addressed and determined in an earlier Article 40 inquiry. These are adversarial proceedings; if a party wished the court to adjudicate on this question it was incumbent on them to present a reasoned argument on the issue grounded in legal principles. The court, of course, is entitled to have regard to well established principles in considering the issues, but something more than a generalised assertion is required to trigger that exercise, particularly in a case where there was a dispute as to the underlying legal position.
34. That said, there are well-known authorities that provide a clear overview of the general position. For instance, in G.� v. Child and Family Agency [2018] IESC 28 the Supreme Court engaged in a consideration of the application of res judicata, issue estoppel and abuse of process in the context of an argument that the applicant, having been refused leave to apply for judicial review in an earlier application, abused the process of the court by making a second application for leave on the same grounds without any material change in circumstances. �McKechnie J. found that the nature of an ex parte application meant that it could not be treated as a final decision on the merits between the parties, and therefore a decision on such an application could not be treated as res judicata. However, the Court discussed the overall concept and reiterated at para 52 that as a general proposition the doctrine has the effect that "a final and conclusive judicial decision on the merits pronounced by a court of competent jurisdiction, disposes once and for all of the material matters decided, so that they cannot thereafter be re-litigated between the same parties or their privies." �
35. As discussed by the Supreme Court, issue estoppel concerns the situation where parties to earlier proceedings seek to litigate a definite material issue which previously had been determined; while the rule in Henderson v. Henderson (1843) 3 Hare 100, provides that a party ordinarily will be precluded from raising in subsequent proceedings grounds which could and should have been raised in earlier proceedings but which were not so raised.
36. Bearing the above in mind, there is a strong argument that the decision on the Article 40 inquiry was final and conclusive decision on the merits of the points raised by the High Court. It is true that the formal respondent to the inquiry was the Governor of Cloverhill Prison and not the Minister for Justice, but it is clear that the arguments made by the respondent in effect represented arguments made by and on behalf of the Minister. Even if that factor means that the case is not strictly res judicata it does not reduce the force of the argument that a form of issue estoppel is engaged. If the applicant considered that Bradley J. was incorrect on the core arguments made in the inquiry, he was entitled to seek to pursue that issue on an appeal.
37. Nevertheless, while there is a very real issue that the attempt to re-litigate the issues that were addressed and determined in the Article 40 inquiry is an abuse of process, the issue was the subject only of a very general argument without relevant authorities being identified or opened. In any event and to avoid uncertainty, I am satisfied that Bradley J. was correct in his analysis of the argument that the time limits in s.5 (oj) of the 2000 Act should be read into s. 51(2) of the 2015 Act.
The time limit in the deportation order
38. Section 51(2) of the 2015 Act provides:
"(2) A deportation order shall require the person specified in the order to leave the State within such period as may be specified in the order and thereafter to remain out of the State."
39. A number of matters can be observed in relation to the wording and context of this provision. First, if the Oireachtas was concerned that all deportation orders should contain the same or some mandatory minimum time period within which a person must leave the State, it could have made that clear in the 2015 Act, but it did not. Second, there is nothing in the plain words or context of the 2015 Act that suggests such a time limit should be implied, and I am of the view that it would come close to impermissible interference in the function of the Oireachtas if this court was to interpret s. 51(2) of the 2015 Act as carrying such an implied time constraint.
40. Third, I am satisfied that the correct interpretation of s. 51(2) of the 2015 Act is that the Oireachtas clearly intended to require the Minister to make a decision in each particular situation on the period that ought to be specified in each deportation order. It is clear from the language used that the Oireachtas was not concerned with setting a minimum time period of general application. To the contrary, the express language used clearly requires the order to oblige the person specified in the order to leave within such period as may be specified in the order. Hence, far from requiring a generally applicable minimum period, the Oireachtas determined that the Minister should be able to tailor a particular order to the particular presenting situation.
41. That is not to say that the power of the Minister is unconstrained. The exercise of the power by the Minister is governed by the usual administrative law principles. Here, the argument was that the use of a 7-day period was arbitrary and capricious. The applicant had some difficulty in explaining how those terms should be understood in this case. The argument was not that the use of the 7-day period was irrational or unreasonable per se, but it seems to me that "arbitrary and capricious" for these purposes generally can be understood as unfair or unreasonable.
42. Overall, the uncontradicted evidence was that the use of a 7-day period amounted to a departure from the ordinary time periods specified in deportation orders. The departure was not a once-off measure specifically targeting the applicant in this case. Instead, the departure was part of a trial undertaken by the Minister directed to unsuccessful asylum applicants from safe countries and was thought to be consistent with other accelerated procedures applicable to safe countries cases. ��As such, having regard to the proper construction of section 51(2) of the 2015, the decision of the minister to impose a 7-day time period in the deportation order in this case was a decision that was available under the statute. There is no basis for finding that the decision in this case was arbitrary or capricious in the sense of being unreasonable or individually targeted.�
The applicant's right to an effective remedy
43. The remaining issue on the s. 51(2) of the 2015 Act arguments is whether the period imposed unfairly interfered with the ability of the applicant to avail of an effective remedy. The remedy at issue in this aspect of the case is seeking to challenge the deportation order by way of judicial review. Again, I fully agree with the analysis of Bradley J. that there was no such interference.
44. At a practical level, the facts of the case undermine the legal argument that was advanced. The applicant was notified of the deportation order on the 13 February 2024, and the applicant was arrested 24 days later, on the 8 March 2024. These proceedings were set in train on the 19 March 2024 and the Article 40 inquiry was commenced on the 22 March 2024. The decision in the Article 40 inquiry was handed down the 25 March 2024. The applicant was deported to South Africa on the 5 April 2024.
45. It can be noted that prior to his deportation and prior to the initiation of the Article 40 Inquiry, the applicant's statement of grounds had included provision for seeking an injunction to restrain his deportation, but no application was made for an interlocutory injunction at any point. That has to be treated as a considered strategic decision.
46. In any event the applicant has demonstrated that he has been fully able to make the case that he wished to make in relation to the legality of his detention; and his legal representatives did not identify any actual - as opposed to notional or potential - disadvantage that flowed from initiating his proceedings in this State and providing instructions for the remainder of the case from South Africa.
47. I do not accept the applicant's argument that Bradley J. misunderstood or misapplied the decision of the Court of Appeal in J.A. (Cameroon). That judgement was delivered in an application to the Court of Appeal for an interlocutory injunction preventing the applicant's deportation pending the determination of the substantive appeal, which was an appeal from a decision in the High Court refusing relief on an Article 40 inquiry.
48. It is true that there are differences between this case and the case addressed by the Court of Appeal. In J.A. (Cameroon) the challenge was not to the deportation order itself but to his later arrest, and was predicated on the assertion that the arrests and detention powers were unconstitutional. The deportation order had been made in 2010. Following a lengthy period when the applicant avoided the authorities and later when he sought unsuccessfully to be readmitted to the asylum process, he was arrested on foot of the 2010 deportation order in September 2017. The High Court rejected the applicant's constitutional challenge and also rejected an application for an interlocutory injunction restraining the deportation.
49. The significance of the decision of the Court of Appeal insofar as it touches on the issues in this case is that the Court was addressing an argument that the applicant's constitutional right of access to the court was jeopardised if he was not present in the State. Hogan J. noted that there was no challenge to the deportation order - which obviously is a potential point of distinction with this case - and found that the balance of justice did not favour the applicant. However, in resolving the issues the Court of Appeal was clear that "it is not necessary that the applicant - who is represented by a solicitor and counsel - should physically remain in the jurisdiction to prosecute this appeal." �In that specific regard, the situation in J.A. (Cameroon) was clearly analogous to the situation in this case, and I respectfully consider that the observations made by Hogan J. are applicable to this case. The deportation in this case did not as a matter of law or fact interfere with the ability of the applicant to seek an effective remedy by way of judicial review by challenging the decisions.
The s. 50 Refoulement Determination
50. The applicant predicated his argument in relation to the s. 50 determination on the basis that Bradley J. was satisfied that the s. 50 determination was properly served on the applicant, notwithstanding that the documents were returned unopened. The applicant thus advances his argument on this ground on the basis that Bradley J. did not address in the Art. 40 proceedings, whether the s. 50 decision was sufficiently reasoned or whether the risk assessment was rationally explained.
51. In making this argument, the applicant contended that the Minister failed to have regard to the submissions made by the applicant's solicitor on the 1 November 2023 and the supporting COI. The applicant considers that the Minister clearly erred in finding that the Applicant had not submitted any "new evidence or statements", which were specific to his circumstances. It is argued that this must lead to the conclusion that the Minister failed to engage substantively with the applicant's submissions dated the 1 November 2024.
52. The applicant referred to the judgment of Barrett J. in Y v. Minister for Justice and Equality [2021] IEHC 82, where the court held that the Minister must provide reasons demonstrating that new and directly relevant evidence has been considered. The applicant addressed subsequent case law which considered the issue of the Minister addressing submissions and relevant COI. Ultimately, the applicant considered that the submissions of the 1 November 2024 were not adequately considered, arguing that the submissions illustrated corruption and violence within the University. Having regard to the judgment of Barrett J. in Y, the applicant considered it crucial that the Minister addresses the directly relevant information provided.
53. The respondents argued that it was clear from the determination that the applicant's submissions and the relevant COI were considered by the Minister. First, the respondents note that the s. 50 determination provides an outline of the material submitted on the 1 November 2024. After which, the respondents emphasise the following section of the s. 50 determination as illustrating that the submissions were considered:
"Whilst the COI submitted lends some credence to the presence of corruption within South Africa's universities, that is not in itself proof that the applicant was involved in attempting to uncover said corruption and was threatened because of this"
54. The respondents highlighted that the applicant's submissions only went so far as to point to general issues of corruption within South African universities but did not illustrate that South Africa is not a safe country in the particular circumstances of the applicant and that this is clearly set out in the s. 50 determination.
55. In ED & AD (Zimbabwe) v. Minister for Justice & Equality [2024] IEHC 303, Gearty J. considered circumstances where the applicant did not receive a separate s. 50 determination. The proceedings before the Court in ED & AD were similarly a challenge to a deportation order and the Minister's consideration of the refoulement submissions provided by the applicant in that case. The respondents note that in ED & AD, the applicants' versions of events were not accepted, and thus the COI was not relevant. The following dicta of Gearty J. was also relied upon for the purpose of illustrating that the submissions and COI advanced by the applicants in that case were of no assistance in affecting the decision to deport:
"2.7 Here, it is obvious that the new information submitted was irrelevant to these Applicants. For reasons set out below, the new information could not change the initial decisions not to grant refugee status and it was clear that this information could not affect a decision to deport. Not only am I satisfied that the information submitted was considered by the Respondent, it is clear that it did not change her view. There is no statutory requirement for a separate s.50 decision where this is so and I agree with my colleague, Barrett J., in his decision in X v The Minister for Justice and Equality, [2021] IEHC 32 to this effect."
56. Ultimately, the respondents argued that the Minister considered the submissions of the applicant in relation to refoulement, but where the applicant's credibility claims had been rejected for the outset, the COI advanced by the applicant was of no assistance to him.
57. The submission made on behalf of the applicant regarding refoulement on the 1 November 2023, was exhibited by Ms. O'Reilly. Having considered that submission, it is clear to the court that this did not include any further information or evidence relating to the particular position of the applicant or the credibility of the assertions that he had been involved personally in unearthing and responding corruption. Instead, the focus was on summarising newspaper reports which addressed the general problem of corruption in South African universities and which referred to threats of violent repercussions and violence directed at those who expose or seek to root out the corruption. In addition, there was a reference to a U.S. State Department Country Report on South Africa from 2022, which referred to more general political corruption, as described in a 2022 Zondo Commission report. The extract from US State Department report rehearsed in the applicant's submission does not refer to universities or to violence.�
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58. As noted above, the applicant did not dispute the following averment by Ms. O'Reilly at para. 4 of her affidavit:
"By letter dated 13 February 2014 the Applicant herein was sent by registered post to [address redacted for this judgment] being the address most recently furnished by the Applicant as required by section 5(1)(c) of the International Protection Act, 2015 ... a copy of the Deportation Order issued by the Minister pursuant to section 51 of the 2015 Act and a copy of the consideration under section 50 of the 2015 Act dated 7 February 2024."
59. The Deportation Order records that in making the deportation order "the Minister is satisfied that the provisions prohibiting refoulement are complied with in your case". In turn, the "Report of the consideration under section 50 of the International Protection Act 2015 (prohibition of refoulement)", dated the 7 February 2024, makes clear that the Minster engaged with the background to the issues and was cognisant of the relevant legal principles. The Minister summarises the representations made on behalf of the applicant and expressly refers to the submissions made by the applicant's lawyers dated the 1 November 2023. The report notes that:
"The applicant's legal representatives have further submitted various media and COI reports with regards to claimed corruption in South Africa's universities of education. However, they have not submitted any new evidence or statements specific to the applicant's circumstances which has not previously been considered by both the IPAT and the IPO. Here it was found that the applicant was not in need of International Protection and further all material elements of the applicants claims were rejected. Whilst the COI submitted lends some credence to the presence of corruption within South Africa's universities, that is not in itself proof that the applicant was involved in attempting to uncover said corruption and was threatened because of this. As the applicant has not provided any evidence or information specific to his own personal circumstances and stated claim, which challenge the findings of both the IPO and the IPAT that his account of events was not credible, it is not found that returning the applicant to South Africa could see him subject to persecution, torture or inhumane or degrading treatment."
60. In the first instance, the court is satisfied that there is no basis for the applicant's contention that the refoulement report is inadequately reasoned. As can be seen from the extract above, the reasoning that led to the decision was clear. The Minister accepted that there was some basis for concern about the presence of corruption in South African universities. However, in the light of the reasoned decisions given at the IPO and IPAT stages that the applicant's claims about his conduct and concerns lacked credibility, the Minister found that the applicant had not submitted material "specific to his personal circumstances" that could lead to a different conclusion to that of the IPAT. In that regard, and having regard to well established precedents such as Connelly v An Bord Plean�la [2018] IESC 31, the court cannot accept that the applicant was not apprised of the reasons underpinning the decision or deprived of the ability to consider whether the decision should be challenged.
61. The next step is to consider whether the applicant is correct that the Minister did not engage substantively with the 1 November 2023 submissions. The case law relied on by the applicant does not support his arguments. There is no doubt that, as per Barrett J. in Y. v Minister for Justice and Equality [2021] IEHC 82, where new and directly relevant information is provided to the Minister as part of the section 50 consideration, that material must be considered and engaged with. This is what occurred. However, in this case the "new evidence" was directed to reinforcing the existing evidence that there were issues relating to corruption in South African universities. There was no new evidence to suggest that the findings regarding the credibility of the applicant's account of his involvement in exposing corruption should be reconsidered.
62. I consider that this situation is analogous to the situation addressed by Barrett J. in X. v Minister for Justice [2021] IEHC 32. There, the contention was that the applicant was a member of the LGBT community and faced persecution in Nigeria. �The underlying proposition - that Mr X. was gay or bisexual - had been rejected by the IPO and IPAT, and the decision of IPAT, inter alia on credibility, was the subject of an unsuccessful attempted challenge by way of judicial review. The applicant made refoulement submissions, but it was apparent from the judgment that these comprised COI that addressed the general position of LGBT persons in Nigeria. The court was satisfied that the submissions had been considered by the decision maker and insofar as there was an argument that the applicant had been left in the dark as to why those submissions were unsuccessful the court noted at para 46:
"His s.50 submissions in essence amounted to an assertion that he is homosexual and that homosexuals suffer badly (and they do suffer badly) in Nigeria, thus presenting a danger to him if he is returned there. But he knows through his participation in the asylum process from start to finish that the Minister, rightly or wrongly, has never accepted that Mr X. is either homosexual or bisexual, so it is, with all respect, obvious why the Minister took the view that he did concerning non-refoulement."
63. In a similar way, in this case the applicant's submissions sought to provide further support for the contention that there is a problem with corruption in South African universities, but did not provide any further support for the contention that he was personally involved in revealing or combatting corruption in his university. This is clearly addressed by the Minister in the report, where it is noted that the newly submitted COI addresses the general picture but that no new evidence "specific to the applicant's circumstances" was submitted. Thus, there is the understandable and reasoned finding that adding credence to the general account of corruption in universities "is not in itself proof that the applicant was involved in attempting to uncover said corruption and was threated because of this."
64. In the premises, the court can discern no basis for finding that the s. 50 consideration failed to have regard to the risk of harm to the applicant as set out in his 1 November 2023 submissions, or was in any sense unreasonable or irrational.
CONCLUSION
65. By reference to the three legal issues identified by the applicant, the court is satisfied that (a) Deportation Order issued to the applicant was not rendered unlawful by reason of the time period identified therein, (b) there was no unlawful curtailment of the applicant's right to an effective remedy, and (c) there was no legal defect in the report of the s. 50 refoulement consideration conducted by the Minister. �In the premises the application will be refused. My provisional view is that the respondents should be entitled to their costs as against the applicant, to be adjudicated in default of agreement. However, as this judgment is being delivered electronically, I will list the matter for final orders before me at 10.30am on Thursday, the 12 February 2026 and the parties will be entitled to address the issue of the final costs order to be made.