High Court of Ireland Decisions

1. This is an application for Judicial Review brought pursuant to an Order granting leave by Mr. Justice McCracken. The application is for an interlocutory injunction restraining the Respondent from removing the Applicants who are Vietnamese nationals from the jurisdiction pending the determination of asylum proceedings which they want processed and an Order of Mandamus and a Declaratory Order, the effect of which would be to compel the Respondent to consider applications for refugee status. As in the Lomidze case, judgment in which I have just delivered, the essential complaint being made is that the principles of the von Arnim letter which regulates asylum applications in this country were not complied with.

2. The application is grounded on an affidavit of Michael Lynn, solicitor of Moran & Ryan Solicitors who are acting for the Applicants. It is alleged in the affidavit that on the 10th July, 1995 the Applicants arrived into Ireland from Germany where an application for refugee status had been refused but that they wished nevertheless to apply for asylum in Ireland and had instructed solicitors for this purpose. The instructions were given on the 22nd November, 1995 and on that date Mr. Lynn contacted the Department of Justice and spoke to an official in the Aliens Section, informed the official of the above matters and that the Applicants wished to apply for refugee status in Ireland. Mr. Lynn was told that he could submit an application for refugee status on behalf of his clients without full details for the time being. On the 23rd November, 1995 Mr. Lynn attended personally at the Department of Justice with the Applicants and met the same official. He handed the official a letter of the 23rd November, 1995 and an application form seeking refugee status. The official then informed him that the application for refugee status would not be accepted and that the Applicants could either leave the State voluntarily or that steps would be taken to return them to Germany. The reasons given for the refusal to accept the application was the fact that the Applicants had already been refused refugee status in Germany. On the 24th November, 1995 Mr. Lynn wrote to Mr. Brian Ingoldsby, Acting Principal Officer of the Department of Justice concerning the events which had taken place on the previous day. A further letter was sent to the Department on the 28th November, 1995 there having been no response to the earlier letter and application. On the 1st December, 1995 Mr. Lynn received an acknowledgement from the office of the Minister which advised him that his recent letter was receiving attention. On 4th December a further holding letter was faxed. Finally, on the 6th December, 1995, Mr. Lynn received a telephone call from an official in the Department of Justice requesting him to attend a general meeting to discuss the position of the Applicants and other clients of Mr. Lynn who had and/or who wished to make applications for refugee status in Ireland. Mr. Lynn was advised that the purpose of the meeting would be to discuss why such applications should be processed. Mr. Lynn subsequently refused to attend such a meeting but entered into correspondence again with Mr. Ingoldsby. On the 8th December, 1995, Mr. Lynn received a telephone call from Mr. Ingoldsby who informed him that he wished to hold such a meeting so as to enable the Minister for Justice to make a decision in respect of the Applicants' bona fides concerning their application for refugee status. Mr. Lynn informed Mr. Ingoldsby that his principal concern was that no application in respect of refugee status had been accepted on behalf of the Applicants by the Department of Justice and that until such an application was accepted that he failed to see what purpose any meeting could have. Mr. Lynn further informed Mr. Ingoldsby that the Applicants' position at all times had been and remained that they would attend whatever interview or meeting which the Department of Justice wished to hold and would supply whatever information the Department of Justice required from them in connection with their application but only subsequent to the acceptance by the Department of an application for refugee status.

3. At this point and before considering the replying affidavits, it is I think relevant to refer to a passage in the judgment of the Supreme Court delivered by Murphy J. on the 28th November, 1997 in Anisimova -v- The Minister for Justice at p.11. The passage reads as follows:-

4. I interpret this passage as implying that in considering whether the Minister has entertained a preliminary application or not it is the real facts which are to be considered and not any technical form of words nor need it involve the filling up of some prescribed form of application. It would seem to me that on Mr. Lynn's own affidavit and without considering any of the rest of the evidence, the Department of Justice in this case, unlike in the Lomidze case, acted impeccably and agreed to a meeting to discuss the Applicants' bona fides concerning their application for refugee status. But that approach was turned down. In those circumstances, I am firmly of opinion that the Applicants are not entitled now to complain about the procedure. It would be premature to determine what clauses of the von Arnim letter would be relevant here or not and the extent to which they were complied with because that stage has never been reached. The Applicants have refused to co-operate with the Department's procedures for dealing with a preliminary application.

5. I do not find it necessary to paraphrase in any detail the affidavits of Colette Morey, Higher Executive Officer in the Asylum Section of the Immigration and Citizenship Division of the Department of Justice and Brian Ingoldsby, Acting Principal Officer in the Department sworn in reply. The general effect of those affidavits is to corroborate and expand upon the details contained in Mr. Lynn's affidavit. The general thrust of Mr. Ingoldsby's affidavit in particular is that because of the earlier application for asylum in Germany and its refusal, the Minister could not immediately at least entertain a substantive application for asylum and this was explained through an interpreter to the Applicants themselves. On the other hand there appears to have been a clear willingness to discuss the applications on a preliminary basis with a view to establishing whether a substantive application could be admitted having regard to all the surrounding circumstances. This was a reasonable view for the Department to adopt and I cannot find any fault in it. I might add that in paragraph 6 of Mr. Ingoldsby's affidavit it is explained that the United Nations High Commission for Refugees was asked for its comments on the propriety of Ireland entertaining applications for asylum by Vietnamese citizens where the question of qualification as a convention refugee had already been heard and determined by Germany. The reply was to the effect that "a country is under no obligation to consider substantively an application from an asylum applicant who arrived in the country from another country which is party to the 1951 United Nations Refugee Convention where that other country has already considered and rejected an application on substantive grounds."

6. In short, therefore, I believe that the Department was correct in not immediately entertaining a substantive application. I believe that they were willing to entertain a preliminary application with a view to establishing the bona fides of the application or whether there could be conceivable grounds that would justify a substantive application. As that latter invitation was turned down, the question of applying the von Arnim principles did not arise. In my view, therefore, the application for Judicial Review must be refused.