HC216
THE HIGH COURT
DUBLIN
2001/ 839J.R.
IN THE MATTER OF AN APPLICATION PURSUANT TO THE ILLEGAL IMMIGRANTS (TRAFFICKING) ACT,
BETWEEN
J. D., M. D., J. D. JNR (A MINOR SUING BY HIS; MOTHER AND NEXT FRIEND, M.D.) AND H. D. (A MINOR SUING BY HIS MOTHER AND NEXT FRIEND M. D)
Applicants
and-
THE MINISTER FOR JUSTICE, EQUALITY AND LAW REFORM AND CHAIRMAN, THE REFUGEE APPEALS TRIBUNAL AND THE REFUGEE APPLICATIONS COMMISSIONER
Respondents
APPROVED JUDGMENT DELIVERED BY MR. JUSTICE T.C. SMYTH ON FRIDAY, 26TH JULY 2001
MR. JUSTICE SMYTH: The Applicants are Czech nationals and are members of the gypsy Roma community. The first and second named Applicants are the parents of the third and fourth named Applicants. The said Applicants had applied for refugee status elsewhere before coming to Ireland. In answer to question 69 of the Questionnaire signed in regard to the application for refugee status made in this country they indicated that they had resided in Germany from 7th March 1991 to the year 1992; they were in Denmark during the year and again in the Netherlands in the same year and were in Belgium between 1997 and 2001. They indicated that they received a negative decision in all countries in which they had applied for asylum and that they lived in those countries in which they applied for asylum and that they also felt safe there. The first named Applicant had at the date of the Questionnaire a sister, Savakova, and brother-in-law Duna in Ireland.
In the same Questionnaire it was stated that the Applicant would like to stay in this State and in case any application for asylum here is refused he and his family would like to go to Canada.
On 30th January 2001 the first and second named Applicants applied for asylum pursuant to Section 8 of the Refugee Act 1996 (as amended) (hereinafter referred to as "the Act of 1996"). Included in both applications were the names of their two dependant children, the third and fourth named Applicants. The first and second named Applicant were interviewed separately on 3rd February 2002 pursuant to Section 8 of the Act of 1996 and the names of their two dependant children were included in those interviews.
At no stage in the process with the office of the Refugee Applications Commissioner (hereinafter referred to as "the Commissioner") did the third or fourth named Applicant submit applications in their own right., nor was there any indication by any of the Applicants that they wanted to do so. On their arrival in the State the Applicants were given (inter alia) a notice of possible transfer under the Dublin Convention. At the same time they were given a leaflet by way of explanation which contained information concerning the Dublin Convention.
This makes clear that the Convention which came into force on 1st September 1997 provided a mechanism for determining which Convention country is responsible for examining an application for refugee status: that Ireland may request the Convention country (in respect of which an Applicant had lodged or had an asylum application examined or had entered the EU through another Convention country or where an Applicant had a valid residence permit or a valid visa for another Convention country) to accept responsibility for the asylum application for a declaration as a refugee and that a possibility of being transferred to that country existed.
None of the Applicants made any representations in relation to the possible transfer of their applications under the Dublin Convention. Pursuant to the provisions of Section 22(c) of the Act of 1996 the Minister was empowered to make an order that the Commissioner may not investigate the merits of an asylum application in this State until she or he has decided whether another Convention country is responsible for examining the asylum application.
An application was made under Article 15 of the Dublin Convention to Belgium on 8th February 2001 for information relating to each of the four Applicants. On 21st June a response was received from Belgium indicating that the first and second named Applicants had applied for refugee status on 23rd December 1997, 30th September 1998 and 3rd October 2000.
Their last applications for refugee status were refused on 29th March 2001. Although the Belgian authorities apparently believed that the Applicants had returned to the Czech Republic on 16th January 2001 there was no evidence to support this. On 23rd July 2001 a formal application was made to Belgium to accept each of the Applicants under Article 10(1) (e) of the Dublin Convention and to admit them to Belgium for the purpose of examining their asylum application.
Their transfer under the Dublin Convention was accepted by Belgium under Article 10(1)(e) of that Convention on 5th October . The Commissioner determined that the applications of the first and second named Applicants together with their dependant children should properly be examined in Belgium and the Applicants were notified of this determination by notices of determination dated 8th October 2001.
On 16th October 2001 a consent by the first and second named Applicant was received which authorized their Questionnaires, interview notes and other documents to be released to the Refugee Legal Service. With the benefit of legal assistance and advice the Applicants appealed the first instance decision. These matters were considered by the relevant Tribunal member and his decision is dated 22nd November 2001.
From the terms of the decision, the grounds of appeal (including an amendment of 5th November 2001) it is clear that all documents furnished to the Tribunal member were considered by him. The decision of the Tribunal was that the determination of the Commissioner was in conformity with the Dublin Convention (Implementation) Order (hereinafter referred to as "the ImplementationOrder") and that Belgium was obliged to accept the Applicants and was the Member State responsible for dealing with the matter of applications in respect of their asylum claims.
The first and second named Applicants were notified that their appeals had been unsuccessful by letters dated 26th November and they were notified at the same time that all relevant papers had been furnished to the Minister to arrange for their transfer to Belgium under the Dublin Convention.
In the pleadings the Respondent avers that there is no reason to believe that the Applicants' claim for asylum would not be fairly or properly considered by the authorities in Belgium in accordance with the principles of international law if they were transferred to Belgium. Belgium is a signatory to the UN Convention on the Status of Refugees 1951 as amended by the New York Protocol 1967 and the Dublin Convention and the European Convention for the Protection of Human Rights and Fundamental Freedoms.
Matters such as change of circumstance since the Applicants' last application in Belgium were considered to be matters which fall to be considered by Belgium and are not relevant to determining which Member State has responsibility for the Applicants' applications under the Dublin Convention.
Under Article 10 of the Implementation Order a Member State shall be obliged to take back a person for whose application it is responsible under the Dublin Convention. Article 10(1)(e) to the extent that it is in point, provides that:
"The Member State responsible for examining an application for asylum according to the criteria set out in this Convention shall be obliged to ...(e) Take back, under the conditions laid down in Articlean alien whose application it has rejected and who is illegally in another Member State."
Article 10 is simply the mechanism by which an Applicant may be transferred once responsibility for his or her application has been determined in accordance with the criteria set out in Articles 4 to 8 of the Convention.
The application for leave to apply for judicial review before the court was confined to one ground only, vis:
"Statutory Instrument 343/2000 does not authorise transfer in accordance with Article 10(1)(e) of the Dublin Convention to another Member State of the said Convention. Instead, the applications of persons who have completed the asylum process in another State may, in the event that no new circumstances exist, be deemed to be manifestly unfounded pursuant to Section 12(4)(i) of the Refugee Act . In the event that new circumstances do exist the Applicant should be making a new and distinct application for recognition of refugee status and the provisions of the Dublin Convention shall not have effect in that instance."
The decision of the Tribunal in the instant case is based on the findings of the Member, who on 22nd November 2001 expressed himself in this way:
"I find that Belgium, under Article 10(1)(e) of the Dublin Convention is required and obligated to accept the Applicants back to Belgium and is the Member State responsible for dealing with any matter or application in respect of their asylum claim.
I find that the grounds of appeal do not make out a case that Belgium is not entitled to deal with this matter under Article 10(1)(e) of the Dublin Convention and I find that the Applicants have not established any grounds under Articles 4 to 8 of the Dublin Convention in respect of their applications for asylum in the Republic of Ireland.
I find that the Applicants have applied for asylum in Belgium and I find that Belgium, under Article 10(1)(e) of the Dublin Convention is required and obliged to accept the Applicants back to Belgium under the said article, being the Member State where the Applicants first applied for asylum, the applications having been rejected, and who are now illegally in another Member State and for Belgium to deal with any matter or application in respect of the Applicant's claims.
I find that the decision of the Refugee Applications Commissioner is in conformity with the Dublin Convention (Implementation) Order 2000 and I find that Belgium is the Member State responsible for accepting or taking back the Applicants under Article 10(1)(e) of the Dublin Convention and to deal with any matter or application in respect of the Applicant's asylum claims."
It was well known to the Commissioner and the Tribunal from the Applicant's own replies to the Questionnaire that they had made unsuccessful applications in the past in Belgium.
The criteria to be applied by the decision makers are as stated in Article 3 of the Dublin Convention to be those set out in Articles 4 to 8 of that Convention in the order in which they appear, the same criteria are applicable within Article 7(7) in relation to appeal decisions by the Tribunal. Article 8 of the Convention provides:
"Where no Member State responsible for examining the application for asylum can be designated on the basis of the other criteria listed in this Convention, the first Member State within which the application for asylum is lodged shall be responsible for examining it."
The Applicants submitted that both the Commissioner and the Tribunal based their decisions on Article 8 of the Dublin Convention, i.e. on the basis that Belgium was the first State in which the Applicants had submitted applications for asylum and consequently, the transfer of the Applicants was authorised pursuant to Article 3(1)(e) of the Implementation Order.
I do not consider it was - though it was contended - conjecture to view the decision as based on Article 8 of the Dublin Convention simply because there was no express reference to it. The Applicants further submitted that even if the decisions were based upon Article 8 this was of no import as Article 3(1)(e) of the Implementation Order, provides that
"3(1). Where an application is made under Section 8 of the Act (vis the Act of 1996), the Commissioner shall determine whether the application - (c) Should be in accordance with the criteria set out in Articles 4 to 8 of the Dublin Convention (applied in the in order which they appear therein) be transferred to a Convention country for examination."
From this it was sought to argue that this did not overcome the Applicant's argument that the Implementation Order does not authorise in fact the return of the Applicants (to Belgium). The Respondent's submission is that the instant case is one that comes within the terms of Article 3(1)(c) of the Implementation Order as it is a transfer to a Convention country which is being made in accordance with the criteria set out in Articles 4 to 8of the Dublin Convention.
It is clear from the documents that the Irish authorities requested the Belgian authorities:
"To take charge of the above named Applicants and admit the Applicants to your territory for the purpose of examining their case for asylum in accordance with Article 10(1)(e) of the Dublin Convention."
The fact that the application for asylum is not successful - even to the point of refusal, does not detract from the express will of an Applicant to be considered as a refugee. An Applicant on the other hand who withdraws from the asylum system signifies that he or she no longer wishes to be considered or regarded as a refugee. The two positions are quite distinct, an argument advanced as if they were synonymous I found unenlightening.
The decision of the Tribunal does not of itself purport to authorise the transfer to another State of the Applicants. Article 3(1) of the Implementation Order provides:
"Where an application is made under Section 8 of the Act the Commissioner shall determine whether the application – (c) ...Should in accordance with the criteria set out in Articles 4 to 8 of the Dublin Convention (applied in the order in which they appear) be transferred to a Convention country for examination." (Emphasis Added)
the term "examination of an asylum application" is not defined in the Implementation Order. However, the term is used in Article 8of the Dublin Convention and defined in Article 1(1)(d) of that Convention as:
"Examination of an application for asylum means: All the measures for examination, decisions or rulings given by the competent authorities on an application for asylum, except for procedures to determine the state responsible for examining the application for asylum pursuant to this Convention."
It is in those circumstances that the Respondent submitted that any decision such as deportation, non refoulement etc. still fall to be determined after an application has been rejected.
An application for asylum is defined in Article 1(1)(b) as a request whereby an alien seeks from a Member State protection under the Geneva Convention by claiming refugee status within the meaning of Article 1 of the Geneva Convention, as amended by the New York Protocol. This can be contrasted, it was contended by the Respondent, with the definition of "Applicant for asylum" which is defined in Article 1(1)(c) as:
"An alien who has made an application for asylum in respect of which a final decision has not been taken."
In my judgment an application can be transferred under Article 8 even where the application has previously been rejected.
On the determination that the application for asylum be transferred to a Member State for examination there next follows a separate process for the transfer of the applicants to the Member State. In order to bring this about a Deportation Order is required. In this regard Section 3(2)(e) of the Immigration Act 1999 provides that a Deportation Order may be made in respect of:
"A person whose application for asylum has been transferred to a Convention country for examination pursuant to Section 22 of the Refugee Act 1996".
In that regard therefore the Minister is obliged under S.3(1) of the Act of , subject to the provisions of Section 5 (prohibition of refoulement) of the Act of 1996 and having regard to the matters set out in S.3(6) of the Act of 1999 prior to making a Deportation Order. Because of the provisions of S.3(5)(b) there is no obligation for notification of intention to deport or to invite representations under S.3(6).
S.3(5)(b) excludes from the provisions of S.3(3) a person to whom S.(2)(e) applies. Arguments addressed to the manifestly unfounded issue seemed to fail to have regard to the fact that both Sections 12(4)(i) and 22(c) were all part of the 1996 Act. Although Section 12(4)(i) of the Act provides that an application may be regarded as manifestly unfounded where it is an application:
"Prior to which the Applicant has made an application for a declaration or an application for recognition as a refugee in a State party to the Geneva Convention, and the Commissioner is satisfied that his or her application was properly considered and rejected and the Applicant has failed to show a material change of circumstances".
That does not mean that the Commissioner is obliged to come to that conclusion. While the section deals with the circumstances indicated where the Applicants have exhausted or apparently exhausted all options in another Member State; this does not necessarily mean that in all circumstances the Applicant's application even if considered in this jurisdiction must necessarily be considered as manifestly unfounded if there are altered changes of circumstances established. It is envisaged by Section 22(2)(c) of the Act of 1996 that the Minister may make regulations to give effect to the Dublin Convention which:
"Require an application for asylum shall not be investigated by the Commissioner until he or she has decided whether a Convention country is responsible for examining the application".
A decision as to the venue within which an examination of the application for asylum is to be considered falls to be considered before any application is either considered under the manifestly unfounded or substantive procedures within the meaning of the Act of 1996.
THE JUDGMENT WAS THEN CONCLUDED