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Zgnat'ev v. Minister for Justice, Equality and Law Reform [2001] IEHC 70 (29th March, 2001)
THE
HIGH COURT
No.
2000
No. 533JR
BETWEEN
VALERI
ZGNAT'EV
APPLICANT
AND
THE
MINISTER FOR JUSTICE, EQUALITY AND LAW REFORM
RESPONDENT
JUDGMENT
of Finnegan J. delivered the 29th day of March, 2001
1. This
is an application for leave to apply for a judicial review. The application is
regulated by the Illegal Immigrants (Trafficking) Act, 2000, Section 5 and
leave shall not be granted unless the Court is satisfied that there are
substantial grounds for contending that the decision, determination,
recommendation, refusal or order is invalid or ought to be quashed.
2. As
to the meaning of
"substantial
grounds"
I have regard to the judgment of the Supreme Court on the reference of the
Illegal Immigrants (Trafficking) Bill, 1999, delivered on 28th August, 2000, at
page 24:-
"As
regard to the requirement that an applicant for leave to issue judicial review
proceedings establish "substantial grounds" that an administrative decision is
invalid or ought to be quashed, this is not an unduly onerous requirement since
the High Court must decline leave
only
where it is satisfied that the application could
not
succeed or where the grounds relied on are not reasonable or are "trivial or
tenuous". This follows from a number of authorities where a similar
requirement, as regard to the Planning Acts, has been judicially considered.
Counsel for the Attorney General referred in particular to the judgment of
Egan
J in
Scott -v- An Bord Pleanala
[1995]
1 ILRM 424, 428
,
Carroll J in
McNamara
-v- An Bord Pleanala
[1995]
2 ILRM 125
,
and Morris P in
Lancefort
Ltd -v- An Bord Pleanala
[1997]
2
ILRM
508, 516
."
3. The
relevant passages in
McNamara
-v- An Bord Pleanala
are
at page 130:-
"Another
case in which the application for leave to apply for judicial review fell to be
decided was
Byrne
-v- Wicklow County Council, High Court
1994
Number 351JR (Keane J) 3 November 1994. He approached the matter on the basis
that the Applicants must show not merely an arguable case but substantial
grounds for contending that the planning decision was invalid and he said he
had not the
slightest
hesitation in holding that there were no substantial grounds. The decision
impugned was a decision of the County Manager and he said it was plainly and
almost inarguably a decision in respect of which there was material before him
entitling him to arrive at the conclusion.
What
I have to consider is whether any of the grounds advanced by the appellant are
substantial grounds for contending that the board's decision was invalid. In
order for a ground to be substantial it must be reasonable, it must arguable,
it must be weighty. It must not be trivial or tenuous."
In
Jackson
Way Properties Ltd -v- The Minster for the Environment and Local Government
& Ors,
the High Court, Geoghegan J, 2nd July 1999, the passage which is quoted above
from
McNamara
-v- An Bord Pleanala
was considered in the following terms -
"As
has been pointed out in the written submissions there are some difficulties
arising out of Carroll J's own definition but I am certain that she would never
have intended that her words would be interpreted as though they were in a
statute. I am satisfied that it was clearly intended by the Oireachtas that
stricter criteria be applied to the granting of leave than would be applied on
an ex parte application in an ordinary judicial review. Once a court has
decided that the points at issue in the proposed judicial review are not
trivial or tenuous, the court must assess whether there is real substance in
the argument and not merely that which is just about open to argument."
4. The
applicant seeks to challenge the manner in which his application for refugee
status was determined the determination having been made upon the basis that
his application was manifestly unfounded and in accordance with the procedures
for such applications.
5. The
State is a contracting party to the Convention Relating to the Status of
Refugees, 1951 (The Geneva Convention) as amended by the Protocol Relating to
the Status of Refugees, 1967 (The New York Protocol) which together are
hereinafter called “the
Convention”.
The Convention defines
"refugee"
in Article 1 as follows:
"Any
person who .... owing to well founded fear of being persecuted for reasons of
race, religion, nationality, membership of a particular social group or
political opinion, is outside of the country of his nationality and is unable
or, owing to such fear, is unwilling to avail himself of the protection of that
country."
6. Having
regard to the status of the United Nations High Commissioner for Refugees under
the Convention and the desirability of a uniform construction of the Convention
in countries which are parties to the same in considering the terms of the
Convention it is appropriate to have regard to the views expressed by the High
Commissioner and in this regard I considered it appropriate to have regard to
the Handbook on Procedures and Criteria for Determining Refugee Status
published by the office of the United Nations High Commissioner for Refugees.
The Handbook deals with the phrase
"well founded fear of being persecuted"
at page 11 et seq.
"Fear"
is subjective so that determination of refugee status will primarily require an
evaluation of the applicant's statements rather than a judgment on the
situation prevailing in his country of origin. The fear must be well founded
and this implies that the applicant's frame of mind must be supported by an
objective situation. The phrase therefore contains a subjective and an
objective element. If such a well founded fear exists and if offered by an
applicant as a reason for being outside the country of his nationality it will
in general be irrelevant that he also offers other reasons which would not
entitle him to refugee status. The objective element requires an evaluation of
conditions in the country of the applicant's nationality. Such consideration
need not be confined to the applicant's own personal experience but regard may
be had to what has happened to his friends or relatives or other members of the
same racial or social group and which may show his fear to be well founded.
"Persecution"
also presents difficulties of definition. A threat to life or freedom on
account of race, religion, nationality, political opinion or membership of a
particular social group or the serious violation of human rights for any such
reason will always constitute persecution. Persecution may emanate from the
authorities of a country but also from the acts of individuals or groups within
that country if such acts are tolerated by the authorities. Where an Applicant
relies upon non state persecution the position is correctly stated in
Horvath
-v- Secretary of State for the Home Department
[2000] WLR 379
at 387 by Lord Hope as
follows:-
"I
consider that the obligation to afford refugee status arises only if the
person's own state is unable or unwilling to discharge its own duty to protect
its own nationals. I think that it follows that in order to satisfy the fear
test in a non state agent case, the applicant for refugee status must show that
the persecution which he fears consists of acts of violence or ill treatment
against which the state is unable or unwilling to provide protection. The
applicant may have a well founded fear of threats to his life due to famine or
civil war or of isolated acts of violence or ill treatment for a Convention
reason, which may be perpetrated against him. But the risk, however severe,
and the fear, however well founded, do not entitle him to the status of a
refugee. The Convention has a more limited objective, the limits of which are
identified by the list of Convention reasons and by the principle or surrogacy."
7. Therefore
there are three possibilities:-
1 The
persecution is by the state.
2 The
persecution is by a non state agency and the state is unable or unwilling to
provide
protection.
3 The
persecution is by a non state agency and the state provides protection to
its
nationals by respecting the rule of law and it enforces its authority through
the
provision of a police force.
8. In
the first of these two possibilities there is persecution. In the third there
is not. Thus, in the Horvath Case the applicant was a Slovakian Roma. The
Immigration Tribunal was satisfied that racial violence against the Roma
perpetrated by skinheads existed and that the police did not conduct proper
investigations in all cases. There had however been cases where investigations
had been carried out and there was evidence that the police had intervened to
provide protection when asked to do so and that stiff sentences had been
imposed at times for racially motivated crimes. The Immigration Tribunal
concluded that violent attacks on the Roma were isolated and random attacks by
thugs. The House of Lords held on the finding of the Tribunal that there was a
sufficiency of state protection for the Roma in Slovakia and that the applicant
had failed to show that he had a well founded fear
of
being persecuted within the meaning of the Convention.
9. Pending
the making of the Convention part of the domestic law of the State the Minister
for Justice on the 13th December, 1985, wrote to the representative of the
United Nations High Commissioner for Refugees setting out the procedure which
would be adopted for the determination of refugee status in Ireland
("the
von Arnim Letter").
It was held in
Gutrani
-v- The Minister for Justice
[1993] 2 IR 427
that the Minister having established the procedure however informally he was
bound to apply it in appropriate cases and his decision would be subject to
judicial review. Further, a letter dated 13th March, 1998, from the Respondent
to the representative of the United Nations High Commissioner for Refugees
dated 13th December, 1995 (the Hope Hanlan Letter) the procedures were modified
by the introduction of a procedure for dealing with manifestly unfounded
applications. I accept, and it was not disputed before me, that the Hope Hanlan
letter enjoys the same status as its predecessor the von Arnim Letter.
10. The
procedure for manifestly unfounded applications had its origin in a resolution
adopted by EU Ministers at London on 30th November and 1st December, 1992. In
short manifestly unfounded applications may be dealt with by a fast track
procedure. The resolution arose out of an awareness that a rising number of
applicants for asylum in Member States of the EU are not in genuine need of
protection within the Member States within the terms of the Convention and the
concern that manifestly unfounded applications overload asylum determination
procedures resulting in delay in the recognition of refugees in genuine
11. Need
of protection. The London Resolution gives guidance as to the basis on which
an application can be deemed to be manifestly unfounded and this corresponds
with paragraph 14 of the Hope Hanlan Letter:-
"14 The
grounds on which it may be determined that an application is manifestly
unfounded
is as follows:
(a) it
does not show on its face any grounds for the contention that the Applicant
is
a refugee.
(b) the
Applicant gave clearly insufficient details or evidence to substantiate the
application.
(c) the
Applicant's reason for leaving or not returning to his or her country of
nationality
does not relate to a fear of persecution.
(d) the
Applicant did not reveal, following the making of the application, that he or
she was travelling under a false identity or was in possession of false or
forged identity documents and did not have reasonable cause for not so revealing.
(e) the
Applicant, without reasonable cause, made deliberately false and
misleading
representations of a material or substantial nature in relation to
the
application.
(f)
the
Applicant without reasonable cause and in bad faith, destroyed identity
documents,
withheld relevant information or otherwise deliberately obstructed
the
investigation of the application.
(g)
the
Applicant deliberately failed to reveal that he or she had lodged a prior
application
for asylum in another country.
(h)
the
Applicant submitted the application for the sole purpose of avoiding
removal
from the state.
(i)
the
Applicant has already made an application for a declaration or an
application
for recognition as a refugee in a state party to the Geneva
Convention,
and the application was properly considered and rejected and the
Applicant
has failed to show a material change of circumstances.
(j)
the
applicant is a national of or has a right of residence in a state party to the
Geneva
Convention in respect of which the Applicant has failed to adduce
evidence
of persecution.
(k)
The
Applicant has, after making the application, without reasonable cause, left
the
State without leave or permission or has not replied to communications, or
(l) the
Applicant has already been recognised as a refugee under the Geneva
Convention
by a state other than the State, has been granted asylum in that
state
and his or her reason for leaving and not returning to that state does not
relate
to a fear of persecution in that state."
12. The
Executive Committee of that High Commissioners Programme has variously
described manifestly unfounded applications as applications by persons who
clearly have no valid claim to be considered refugees under the relevant
criteria and applications
which
are considered to be so obviously without foundation as not to merit full
examination at every level of the procedure. Such applications have been termed
"clearly
abusive"
or "
manifestly
unfounded".
Again, manifestly unfounded applications are those which are clearly
fraudulent or not related to the criteria for the granting of refugee status
laid down in the Convention: see Excom Conclusions on International Protection
Number 30 (XXXIV) 1983.
13. Finally,
in relation to the meaning of manifestly unfounded I have been referred to a
letter from Michael Lindenbauer, Senior Liaison Officer, United Nations High
Commission for Refugees, Dublin, to the Respondent in which having referred to
Excom
14. Conclusion
Number 30 he goes on to say:-
"Before
deeming a case manifestly unfounded the decision making authority should
examine the set of circumstances giving rise to the claim for refugee status as
presented by the Applicant against the criteria defined in the above Excom
Conclusion. If a claim is not clearly fraudulent or if it bears relation to
the criteria
for
granting refugee status under the 1951 Convention or any other criteria
justifying the granting of asylum then such a case should not be dealt with in
an accelerated procedure."
15. I
have set out in the schedule to this judgment in full the Hope Hanlan Letter.
The substantive procedure provided for in the Hope Hanlan Letter may be
summarised as follows:-
1 The
Applicant for refugee status makes application and is informed of the
Hope
Hanlan procedure.
2 The
Applicant is interviewed.
3 A
person appointed by the Minister will assess the application having regard
to
the interview, a report of the interview, any written representations received
from
or on behalf of the Applicant and information obtained from the UNHCR
or
other internationally reliable source and will make a recommendation as to
whether
refugee status should be granted or refused by the Minister.
4 A
different person authorised by the Minister will make a decision on the
application
on behalf of the Minister based on the information made available
during
the process described above and the Applicant will be notified of the
decision
and the reasons for it.
16. Manifestly
unfounded applications are dealt with by an accelerated procedure provided for
in the Hope Hanlan Letter at paragraphs 12 and 13. Paragraph 12 provides that
at any time following receipt of an application a person duly authorised by the
Minister may decide to terminate further examination of the case on the grounds
that it is manifestly unfounded and to refuse the application for refugee
status accordingly. Having regard to the use of the phrase
"a
person duly authorised"
it seems to me that this must be the person duly authorised under paragraph 11
of the Letter and mentioned at step 4 above as opposed to persons appointed by
the Minister for the purpose of conducting the interview at step 2 or the
assessment at step 3 above, unless in addition to being appointed they were
authorised to make a decision under paragraph 12. The applicant whose
application has been deemed manifestly unfounded will be notified of the
decision and the reasons for it and of his right to appeal the decision within
seven days of the notification being sent setting out the grounds on which the
appeal is based. The appeal will be decided by a person of more senior rank
and will be made on the basis of the papers available in the case and of any
submission made by or on behalf of the applicant.
17. Where
the application is deemed manifestly unfounded further examination is
terminated: there is no consideration of the case on its merits. The person
duly authorised by the Minister makes the decision on the basis of the
application, the note of the interview, the report of the interview and any
written representations made by or on behalf of the Applicant. Of necessity he
must have regard to the objective element in the concept
"well
founded fear of persecution"
and must have regard to relevant background material on the applicant's country
of nationality. On the basis of all the foregoing he must determine whether the
Applicant has disclosed an arguable case that he is entitled to refugee status
under the Convention. In so doing he is not obliged to accept mere assertion
by the Applicant of facts and circumstances which if true would entitle him to
refugee status. He is entitled to consider credibility and to take into
account that the Applicant's story is inconsistent, contradictory or
fundamentally improbable: see London Declaration paragraph 6(c).
18. The
Applicant was interviewed by a person appointed by the Respondent, Ms Majella
Donoghue. She prepared a report and assessment which she addressed to Mr Enda
Hughes and in which she considered that the accelerated procedures should
apply. Mr Hughes considered the application on the 22nd of June, 2000, and was
satisfied that the application was manifestly unfounded and referred to
subsections paragraph 14 (a), (b) and (c) of the Hope Hanlan Letter. By letter
dated 29th June, 2000, the Applicant was informed that his application had been
determined as manifestly unfounded and notified of the reasons for the
decision. By letter dated 17th July, 2000, the Applicant appealed the decision
and submissions were made in support of that appeal. The Refugee Appeals
Authority made its recommendation to the Minister on the 31st July, 2000, and
recommended that the appeal be dismissed. By letter dated the 5th September,
2000, the Applicant was informed that Linda Greely, the Officer authorised by
the Minister had considered the recommendation of the Refugee Appeals Authority
and had decided to uphold the original decision and refused the appeal.
19. The
Applicant then initiated these proceedings. The statement required to ground
an application for judicial review challenges the decision at first instance
that the application was manifestly unfounded, the recommendation of the
Refugee Appeals Authority and the decision on the appeal. I propose dealing
with the grounds in respect of each of these in turn in the sequence in which
the same are set out in the statement required to ground an application for
judicial review at paragraph E thereof.
(a) It
was not indicated to the Applicant prior to the decision at first instance that
the
application could be deemed to be manifestly unfounded and accordingly
the
Applicant was not afforded an opportunity to present evidence to the
contrary.
20. The
Applicant was given every opportunity to make out his case for refugee status
in full by completing the application, attending for interview and if he wished
by making submissions after the interview. At this point there are three
possibilities - refugee status will be granted or refugee status will be
refused on the merits or refugee status will be refused on the basis that the
application is manifestly unfounded. At all stages the Applicant must be aware
of the onus that rests upon him to satisfy the terms of the Convention and his
application, interview and representations if any will be directed to that
purpose. It does not make sense to say that if he was aware that his
application would be determined as manifestly unfounded he would have adduced
more cogent evidence than that which he adduced on the basis that his
application would be determined on the merits. I am not satisfied that this
is a substantial ground.
(b) The
first named Respondent failed to give adequate reasons for the decision at
first
instance and/or the decision to refuse the Applicant's appeal against the
decision
at first instance.
21. The
decision at first instance was communicated by letter dated the 29th June and
this sets out the grounds of the determination being those corresponding to
paragraph 14(a), (b) and (c) in the Hope Hanlan Letter. With the letter of
29th June, 2000, the Applicant was sent all papers on which the decision was
based and insofar as the grounds require any amplification they can be read in
conjunction with the interview and the assessment carried out by Ms Majella
Donoghue. The grounds relied upon are justified by the analysis contained in
the assessment: see
Ni
Eili -v- The Environmental Protection Agency & Anor
the Supreme Court 30 July 1999 Murphy J. at P.29. There are reasons and the
reasons are adequate. I am not satisfied that this is a substantial ground.
(c) The
second named Respondent failed to give any adequate reasons for the
recommendation
that the Applicant's appeal against the decision at first
instance
should be refused.
22. The
recommendation of the second named Respondent made after consideration of all
the documents on the Applicant's file and submissions in writing made by the
Refugee Legal Service dated 17th July, 2000, upheld the decision that the
claim was manifestly unfounded again on the basis of paragraph 14(a), (b) and
(c) of the Hope Hanlan Letter. In the circumstances of this case I am
satisfied that this is a sufficient setting out of reasons and in any event the
reasons can be clarified by reference back to the assessment and the decision
at first instance. I am not satisfied that this is a substantial ground.
(d) The
first named Respondent, his servants and/or agents, in reaching the decision at
first instance and/or the decision to refuse the Applicant's appeal against the
said decision at first instance failed, refused and neglected to observe and/or
otherwise act in accordance with the guidelines prepared and/or established
and/or laid down by the first named Respondent his servants and/or agents for
use in the determination of whether applications for recognition of refugee
status are manifestly unfounded within the meaning of the aforesaid Hope Hanlan
Letter.
23. This
ground is expanded upon in the grounding affidavit sworn on behalf of the
Applicant by Gráinne Brophy on the 3rd October, 2000, at paragraphs 22
and 23 thereof as follows:-
"I
say and believe that on the basis of the nature of the claim made by the
Applicant to the first named respondent in the said questionnaire and at the
said interview with Ms Donoghue the applicant had established a prima facie
case for recognition of his refugee status and/or has identified issues which
prima facie brought him within the relevant provisions of the Geneva Convention."
24. The
functions of this Court are limited. It cannot interfere with the decision of
an administrative decision making authority merely on the ground that on the
facts it would have reached a different conclusion:
O'Keefe
-v- An Bord Plenala & Ors
[1993] I IR 39
.
For this Court to interfere the Applicant is required to show that the decision
making authority had before it no relevant material which would support its
decision. An examination of the papers shows that there was ample relevant
material before the decision maker to support the decision. In short the
circumstances relied upon do not amount to persecution.
(e) The
first and second named Respondent or either of them, their servants and/or
agents, erred in law in failing to observe and/or otherwise act in accordance
with the guidelines and/or directions of the UNHCR in respect of the
determination of whether applications for recognition of refugee status are
manifestly unfounded.
25. This
ground is expanded upon in Paragraph 26 of the grounding affidavit. Reliance
in particular is placed upon a letter dated September, 1999, from Michael
Lindenbauer, Senior Liaison Officer, UNHCR, Dublin, to the first named
Respondent in relation to a case other than that of the Applicant. The letter
must be read in conjunction with Excom Conclusion Number 30 (XXXIV) of 1983.
The relevant portion of the letter, I am satisfied, is the following:-
"If
a claim is not clearly fraudulent or if it bears relation to the criteria for
the granting of refugee status under the 1951 Convention, or any other criteria
justifying the granting of asylum, then such a case should not be dealt with in
an accelerated procedure."
26. Again,
it seems to me that
O'Keefe
-v- An Bord Pleanala & Ors
is relevant. There was ample evidence available to the decision maker to
justify a finding that the claim did not bear relation to the criteria for the
granting of refugee status. On the application the Applicant has not disclosed
persecution. In these circumstances the Court cannot interfere. (f)
The
first named Respondent, his servants and/or agents reached a decision at
first
instance and reached an appeal decision which said decisions, or either of
them
are manifestly unreasonable having regard inter alia to the guidelines
prepared
and/or established and/or laid down by the first named Respondent
his
servants or agents and/or having regard to the guidelines and/or directions
of
the UNHCR and/or having regard to the requirements of natural and/or
constitutional
justice and/or having regard to the provisions of the Constitution
of
Ireland, 1937, and having regard to international law.
(g) The
second named Respondent reached a decision and/or made a
recommendation
in respect of the Applicant's appeal which is manifestly
unreasonable
having regard to the directions of the UNHCR and/or having
regard
to the requirements of natural and/or constitutional justice and/or
having
regard to the provisions of the Constitution of Ireland, 1937, and/or
having
regard to international law.
27. In
order to succeed on these grounds the Applicant would have to satisfy the very
stringent test laid down in
The
State (Keegan) -v- Stardust Victims Compensation Tribunal
[1986]
IR 642
:-
"The
decision sought to be impugned must be so unreasonable that no reasonable
decision maker could ever have come to it."
28. The
affidavit in support of the application falls far short of discharging this
burden. The decision on the application was clearly open to the decision maker
on the information before him. I am not satisfied that this is a substantial
ground.
(h) In
his initial application the Applicant had established a prima facie case for
recognition
of his refugee status and/or identified the issues which prima facie
brought
him within the relevant provisions of the United Nations Convention
relating
to the Status of Refugees, 1951, and the Protocol relating to the Status
of
Refugees, 1967, (hereinafter referred to together as "
the
Geneva
Convention").
In the premises the decision of the first named Respondent, his
servants
and/or agents at first instance and/or in respect of the Applicant's
appeal
and/or the recommendation of the second named Respondent is or are
manifestly
unreasonable and/or irrational.
29. The
onus on the Applicant here is again that in the
State
(Keegan) -v- Stardust Victims
Compensation Tribunal. Again the approach which the Court must adopt is that in
O'Keefe
-v- An Bord Pleanala
.
Judicial review is concerned not with the decision but with the decision making
process. Judicial review is not an appeal from a decision but
a
review of the manner in which the decision was arrived at. The Court cannot
interfere with the decision merely on the grounds that it is satisfied that on
the facts as found it would have raised different inferences or conclusions or
it is satisfied that the case against the decision made was much stronger than
the case for it. Again, as Finlay CJ said in
O'Keefe
-v- An Bord Pleanala
(at page 72):-
"I
am satisfied that in order for an applicant for judicial review to satisfy a
court that the decision making authority has acted irrationally in the sense
which I have outlined above so that the court can intervene and quash its
decision, it is necessary that the applicant should establish to the
satisfaction of the court that the decision making authority had before it no
relevant material which would support its decision."
30. As
there was ample relevant material before the decision maker in the application
and the interview to enable the decision in fact made to be arrived at, I am
not satisfied that this ground is substantial.
(i) The
first named Respondent, his servants and/or agents erred in law and/or
acted
unreasonably and/ irrationally in failing to admit the Applicant to the
"full"
asylum applications procedure when the Applicant had submitted a
claim
for recognition of his refugee status which prima facie brought him
within
the relevant provisions of the Geneva Convention.
31. For
the same reasons as at paragraph (h) above I am not satisfied that a
substantial ground is shown here on the basis of irrationality. Insofar as an
error in law is concerned I have set out the relevant law as to the meaning of
refugee persecution and manifestly unfounded. There is no error of law
apparent in the decisions sought to be impugned and indeed as I understand the
Applicant's case on affidavit the error relied upon is the findings of facts to
which the law was applied. I am not satisfied that this is a substantial ground.
(j) The
procedure established pursuant to paragraphs 12-14 (inclusive) of the
Hope
Hanlan Letter failed to satisfy the requirements of natural and
constitutional
justice and/or are bad in law and/or violate Article 6 (1) of the
European
Convention on the Protection of Human Rights and Fundamental
Freedoms
in that the said procedures do not provide an appellant with an
opportunity
for an oral hearing of his or her appeal and in particular the
Applicant
herein was not afforded an oral hearing of his appeal against the
decision
at first instance.
32. In
short the Applicant's complaint is that there was no facility for an oral
hearing on his appeal.
33. Article
14.3 of the Constitution implies a guarantee of basic fairness of procedures.
The requirements of natural and constitutional justice will vary with the
circumstances of the case:
Gunn
-v- Bord an Cholaiste Naisiunta Ealaine is Deartha
[1992] IR 168. In
Kiely
-v- Minister for Social Welfare
[1977] IR 267 at 281
Henchey J said that:-
"Tribunals
exercising quasi judicial functions are frequently allowed to act informally -
to receive unsworn evidence, to act on hearsay, to depart from the rules of
evidence, to ignore courtroom procedure, and the like - but they may not act in
such a way as to imperil a fair hearing or a fair result.
I do not attempt an exposition of what they may not do. To quote the
frequently cited dictum of Tucker LJ in Russell -v- Duke of Norfolk:-
"There are, in my view, no words which are of universal application for every
kind of inquiry and every kind of domestic tribunal. The requirements of
natural justice must depend on the circumstances of the case, the nature of the
inquiry, the rules under which the tribunal is acting, the subject matter that
is being dealt with and so forth”.”
34. Clearly
there is no universal requirement or general entitlement to an oral hearing of
an appeal.
Galvin
-v- Chief Appeals Officer
[1997] 3 IR 240
was a case in which the respondent had a discretion as to whether or not an
oral hearing would be held. Costello J held that as it would be extremely
difficult if not impossible to arrive at a true judgment on the issues which
arose without an oral hearing and so quashed the decision arrived at without an
oral hearing. However, it is not necessarily a denial of natural justice for a
tribunal to receive and rely upon written representations:
R
-v- Amphlett
[1915] 2 KB 223,
Local
Government Board -v- Arlidge
[1915] AC 120,
Selvarajan
-v- Race Relations Board
[1976] 1 All ER 12
.
Many statutes eg. Local Government (Planning and Development) Acts, 1963-1999,
specifically permit tribunals to proceed on written evidence alone. In an
Australian case,
Re
Babler -v- Director General of Social Services
(unreported 17th March, 1982 Administrative Appeals Tribunal) where there was a
discretion as to whether there should be an oral or written appeal it was held
that it would be appropriate to rely upon written evidence in the form of a
statutory declaration where the social security recipient spoke very poor
English and was concerned about appearing in person to give evidence.
Again,
it may be of advantage to an applicant for refugee status not to have an oral
appeal at which he could be cross-examined as to evidence which he had given.
I make these remarks as it may not always be to the benefit of an appellant to
have an oral hearing. Other than to assert that natural justice required that
the applicant be given an oral hearing no authority was cited to me in support.
No specific disadvantage to the Applicant resulting from written procedures was
cited to me. However the consequences for a genuine applicant for refugee
status of his appeal failing as so serious it seems to me that I should grant
leave on this basis. In doing so I bear in mind the dicta in
Goldberg
-v- Kelly
397.U.S. 254 at 268-269
“The
opportunity to be heard must be tailored to the capacities and circumstances of
those who are to be heard... Written submissions are an unrealistic option for
most recipients, who lack the educational attainment necessary to write
effectively and who cannot obtain professional assistance. Moreover, written
submissions do not afford the flexibility of oral presentations; they do not
permit the recipient to mould his argument to the issues the decision maker
appears to regard as important. Particularly where credibility and veracity
are at issue, as they must be in many termination proceedings, written
submissions are a wholly unsatisfactory basis for decision.”
(k) The
second named Respondent erred in law and fact in failing to recommend
that
the Applicant be admitted to the
"full"
asylum procedure when the
applicant
had submitted a claim to the first named Respondent and/or the
second
named Respondent or either of them their servants and/or agents which
prima
facie brought him within the relevant provisions of the Geneva
Convention
and/or erred in mistaking the grounds for and/or the reasons for
the
Applicant's claim for recognition of his refugee status and accordingly the
second
named Respondent was not entitled to reach the said decision and/or to
recommend
that the Applicant's appeal should be refused and therefore the
said
recommendation is unreasonable and irrational.
(l) In
the aforesaid premises, the recommendation of the second named
Respondent
contains an error on the face of the record.
(m) To
the extent that the first named Respondent his servants and/or agents relied
upon
the said decision and/or recommendation of the second named
Respondent
reaching the appeal decision the said appeal decision was vitiated
by
the second named Respondent said error and/or misstatement.
35. It
seems to me that these three grounds can be taken together and fall to be dealt
with on the same basis as the grounds mentioned at (h) and (i) above. Insofar
as it is said that the reasons for the Applicant's claim for recognition of his
refugee status are misstated I am satisfied that there was evidence available
to this Respondent to support the statement of the same. In these
circumstances it cannot be said the Applicant's grounds were misstated. I am
not satisfied that these grounds are substantial.
36. Accordingly
I propose to grant leave to the Applicant to apply for the relief in the
statement required to ground an application for judicial review at D 1(c) upon
the grounds at E 1(j).
37. With
regard to the grounds relied upon at E 2 - the violation of Article 6(1) of the
European Convention on the Protection of Human Rights and Fundamental Freedoms
as the Convention is not part of domestic Irish law at present I am not
satisfied that this ground is substantial.
Schedule
to Judgment
Ms
Hope Hanlan
UNHCR
21st
Floor Millbank Tower
21-24
Millbank
I
.London SW1P 4QP
10
December, 1997
Dear
Ms Hanlan
39. I
am directed by the Minister for Justice, Equality and Law Reform to refer to
this Department’s letter of 13 December, 1985 to your predecessor, Mr R.
von Arnim, regarding the procedures which Ireland follows in dealing with
persons who seek asylum within the State. I also refer to recent
correspondence and meetings between us on the subject.
40. Circumstances
have changed considerably since 1985 as regards asylum matters in the State.
The statutory background against which asylum applications fall to be
considered has developed with the commencement of provisions of the Refugee
Act, 1996, including the statutory definition of a refugee and the coming into
effect of the Dublin Convention. In addition, the volume of applications being
made in the State has increased about a hundred-fold since 1985. Both the
Department and UNHCR have acknowledge the inadequacy of the procedures
obtaining to date to deal with the volume of applications on hands and being
received and recognise the need to replace them with procedures capable of
dealing fairly and in a timely fashion with those applications.
41. In
the light of these changed circumstances, it is now necessary for Ireland to
put in place new administrative procedures pending the introduction of
statutory procedures to deal with applicants for asylum in the State. These
procedures are in substitution for those put in place in the letter of 13
December, 1985 to Mr von Arnim.
42. With
effect from 10 December, 1997 the following administrative procedures will be
in effect and will apply to all applications on hands on that date or made on
or after that date. The Department believes these to be in line with
Ireland’s international obligations and humanitarian traditions.
General
1 An
application for refugee status (hereinafter referred to as
‘asylum’) may be made by an applicant to an immigration officer on
arrival in the State, or, if the person is already within the State to the
Department of Justice, Equality and Law Reform or, if outside Dublin, to any
Garda Station.
2 Immigration
officers have been provided with written guidelines which draw attention to the
statutory definition of a refugee contained in
section 2 of the
Refugee Act
1996 and to the prohibition on refoulement contained in
section 5 of that Act.
3 Whenever
it appears to an immigration officer as a result of a claim or information
given by an individual that he or she might be an asylum-seeker, the following
initial procedure will apply. The immigration officer will interview the
person with the purpose of eliciting sufficient information for the officer of
the Department appointed under
section 22(4)(a) of the
Refugee Act 1996 to
decide if the application should be dealt with in the State or otherwise
(currently the Dublin Convention (Implementation) Order 1997 (S.I. No. 360 of
1997) applies in this regard).
4 Immigration
officers have been instructed that it is not necessary for an individual to use
the term “refugee” or “asylum” in order to be an
asylum-seeker. Whether or not a person is an asylum-seeker is a matter of fact
to be determined in the light of all the circumstances of the particular case
as well as guidelines which may be issued from time to time by the Department.
Where necessary and possible, an interpreter shall be provided so that the
individual may make his or her wishes known. In case of doubt, the immigration
officer shall consult the Department.
5 An
asylum seeker may be granted or refused leave to land in accordance with normal
immigration criteria as the individual circumstances warrant. However, any
refusal of leave to land in such circumstances will have suspensive effect, and
such a person will not be removed from the State, until either -
- it
is determined that the individual is not in fact seeking asylum in the State, or
- a
final decision has been made under the Dublin Convention (implementation) Order
that
the application should be dealt with in another Convention country, or
- it
is decided that the application is manifestly unfounded, or
- the
application has been deemed to be abandoned, or
- the
application has been examined substantively in the State and a final decision
reached on it.
44. Substantive
consideration
6 An
asylum application for which the State has responsibility will be examined by
reference to the definition of “refugee” contained in
section 2 of
the
Refugee Act 1996. The following paragraphs set out the procedure by which
that examination will take place.
7 The
applicant will be given an opportunity to submit his or her case to the
Department and to contact the UNHCR Representative and/or a local
representative of his or her choice. The applicant will be informed of the
procedure to be followed and of these rights, where possible in a language
which he or she understands.
8 The
applicant will be interviewed by a person appointed by the Minister or by an
immigration officer. Where necessary and possible the interview will be
conducted with the aid of an interpreter. The applicant may be accompanied at
the interview by a representative, who will, however, refrain from answering
questions for the applicant or intervening in any way in the conduct of the
interview. The representative will be given an opportunity at the end of the
interview to make briefly any points which are considered necessary.
9 At
any point before, or up to five working days after, the interview the applicant
or his or her representative may make written representations relating to the
case.
10 A
person appointed by the Minister will assess the case having regard to the
interview, the report of the interview, to any written representations duly
submitted and to such information as may be obtained from UNHCR or other
internationally reliable sources. Such person will make a recommendation as to
whether refugee status should be granted or refused.
11 A
person duly authorised by the Minister will make a decision based on the
information made available during the process described above. The applicant
will be notified by registered post of the decision and of the reasons for it,
and (if the decision is negative) of the right to appeal the decision within 14
days of the notification being sent, setting out the grounds on which the
appeal is based. The applicant in his or her notice of appeal shall specify if
an oral hearing is required.
45. Manifestly
unfounded cases: accelerated procedure
12 Where
at any time following receipt of an application any of the circumstances set
out at paragraph 14 below emerges, a person duly authorised by the Minister may
decide to terminate further examination of the case on the grounds that it is
manifestly unfounded and to refuse the application for refugee status
accordingly. The applicant will be notified by registered post of the decision
and of the reasons for it, and of the right to appeal the decision within 7
days of the notification being sent, setting out the grounds on which the
appeal is based. UNHCR will also be notified of each such decision and
provided with a copy of any appeal submissions made.
13 The
appeal will be decided by a person of more senior rank, in consultation with
the UNHCR where possible. Where UNHCR has made no observations on the case
within 7 days of the decision under appeal, it will be assumed that no
observations are being offered. The decision will be made on the basis of the
papers available in the case and of any submission made by or on behalf of the
applicant. If the appeal is determined in favour of the applicant, the
applicant will be notified of the decision and processing of the application
will resume. Otherwise the applicant will be notified of the decision and the
provisions of paragraph 21 below will have effect.
14 The
grounds on which it may be determined that an application is manifestly
unfounded are as follows:
(a) it
does not show on its face any grounds for the contention that the applicant is
a refugee,
(b) the
applicant gave clearly insufficient details or evidence to substantiate the
application,
(c) the
applicant’s reason for leaving or not returning to his or her country of
nationality does not relate to a fear of persecution,
(d) the
applicant did not reveal, following the making of the application, that he or
she was travelling under a false identity or was in possession of false or
forged identity documents and did not have reasonable cause for not so revealing,
(e) the
applicant, without reasonable cause, made deliberately false or misleading
representations of a material or substantial nature in relation to the
application,
(f)
the applicant, without reasonable cause and in bad faith, destroyed identity
documents, withheld relevant information or otherwise deliberately obstructed
the investigation of the application,
(g) the
applicant deliberately failed to reveal that he or she had lodged a prior
application for asylum in another country,
(h) the
applicant submitted the application for the sole purpose of avoiding removal
from the State,
(i) the
applicant has already made an application for a declaration or an application
for recognition as a refugee in a state party to the Geneva Convention, and the
application was properly considered and rejected and the applicant has failed
to show a material change of circumstances.
(j) the
applicant is a national of or has a right of residence in a state party to the
Geneva Convention in respect of which the applicant has failed to adduce
evidence of persecution,
(k) the
applicant has, after making the application without reasonable cause left the
State without leave or permission or has not replied to communications, or
(l) the
applicant has already been recognised as a refugee under the Geneva Convention
by a state other than the State, has been granted asylum in that state and his
or her reason for leaving or not returning to that state does not relate to a
fear of persecution in that state.
Appeals
15 Where
an appeal is made within the specified time against a decision (other than in
manifestly unfounded cases or in cases deemed to be abandoned (see paragraph
20)) to refuse refugee status, the applicant will be supplied with all of the
material (other than material which has been supplied to the Department on the
basis that it will not be disclosed further) on which the decision was based.
The appeal will be determined by an Appeals Authority, a person independent of
the Minister and the Department with at least ten years’ practice as a
solicitor or barrister appointed by the Minister for this purpose (more than
one such person may be appointed). The Appeals Authority will be provided with
all of the information provided tot he applicant and with such submissions as
may be made by or on behalf of the applicant in connection with the appeal.
The Appeals Authority will make a decision based on the papers only or, where
the applicant has so requested, following an oral hearing.
16 Where
an applicant fails to attend at an appeal hearing, having requested and being
granted an oral hearing and having been duly informed of the date thereof, the
appeal shall be considered on the basis of written documentation already
available to the Appeals Authority.
17 The
Appeals Authority will make a recommendation to the Minister as to whether
refugee status should be granted.
18 A
duly authorised officer of the Department will make a final decision on refugee
status on behalf of the Minister based on the recommendation of the Appeals
Authority, but subject to considerations of national security or public policy.
19 Where
refugee status is granted, the applicant will be notified accordingly and will
be provided with documentation confirming his or her status and the nature and
extent of his or her rights under the 1951 Convention and associated Protocol.
20 Where
an applicant fails to attend at an interview or is otherwise uncontactable
without good and sufficient reason his or her case will be considered to be
abandoned. A notice to this effect will be sent to the applicant at his or her
last known address by registered post. If the applicant subsequently comes tot
he attention of the authorities he or she will be considered to be an illegal
immigrant and will be dealt with in accordance with immigration (non-asylum)
rules.
Refusal
21 Where
refugee status is either refused at first instance and not appealed within the
time specified, or is refused following an appeal, the applicant will be
invited to leave the State voluntarily and informed that failure to do so
within 14 days may result in a recommendation being made to the Minister that a
deportation order should be made in respect of him or her.
48. Temporary
leave to remain
22 The
above procedures offer to applicants who do not come within the definition of
“refugee” contained in
section 2 of the
Refugee Act 1996 sufficient
opportunities to make submissions to the Minister as to whether there are
special reasons why leave should be granted to them to remain temporarily in
the State. A decision in any such case remains at the absolute discretion of
the Minister.
49. Co-operation
with the UNHCR
23 The
UNHCR Representative will be notified of the making of each application. The
UNHCR Representative may attend any interview or hearing in connection with the
above proceedings, and may have access to the papers relating to any particular
case at any stage during the processing of an application. Where the UNHCR
Representative considers it appropriate , he or she may make unsolicited
representations relating to any case or group of cases; such representations
will betaken into account in arriving at a decision.
24 The
Department undertakes to operate these procedures in a spirit of co-operation
with the UNHCR with a view to ensuring that no person deserving of protection
in the State is refused it.
Diarmuid
Cole
Ms
Hope Hanlan
UNHCR
21st
Floor Millbank Tower
21-24
Millbank
London
SW1P 4QP
13
March, 1998
Dear
Ms Hanlan
53. I
am directed by the Minister for Justice, Equality and Law Reform to refer to my
letter of 10 December last and the meeting of 5 February between Department
officials and representative of the UNHCR, Amnesty, Irish Commission for
Justice & Peace, Irish Refugee Council and Trócaire.
54. I
am now to inform you that following consideration of the report of the meeting,
the Minister has decided to amend the procedures for dealing with manifestly
unfounded cases by providing for an appeal to an independent authority and also
by increasing the time allowed for lodging an appeal from 7 days to 7 working
days.
55. Accordingly,
paragraphs 12 and 13 of my letter to you of 10 December will be amended as
follows -
Paragraph
12
in
line 7 replace “7 days” with “7 working days”.
Paragraph
13
replace
the existing paragraph with
“13(a) The
appeal will be determined by an appeals authority, a person independent of the
Minister and the Department with not less than 7 years’ practice as a
solicitor or barrister appointed by the Minister for this purpose (more than
one such person may be appointed). The Appeals Authority will be provided with
all of the papers available in the case and with such submissions as may be
made by or on behalf of the applicant in connection with the appeal. The
Appeals Authority will make a determination based on the papers only. Where
UNHCR has made no observations on the case within 7 working days of the
decision under appeal, it will be assumed that no observations are being offered.
(b) The
Appeals Authority will make a recommendation to the Minister as to whether the
original determination should stand or whether the application should be
considered substantively.
(c) A
duly authorised officer of the Department will make a decision based on the
recommendation of the Appeals Authority, but subject to considerations of
national security or public policy (ordre publique).
(d) If
the appeal is decided in favour of the applicant, the applicant will be
notified of the decision and processing of the application will resume.
Otherwise the applicant will be notified of the decision and the provisions of
paragraph 21 below will have effect.”
56. I
would also like to take this opportunity to confirm that applicants for refugee
status are, of course, entitled to consult a solicitor and that the reference
to “public policy” at the end of paragraph 18 should be followed by
“(ordre publique)”
Diarmuid
Cole
© 2001 Irish High Court
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