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Cite as: [2001] 3 IR 224, [2001] IEHC 80

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Sarfaraz v. Minister for Justice, Equality and Law Reform [2001] IEHC 80 (3rd July, 2001)

THE HIGH COURT

JUDICIAL REVIEW

2000 No. 792 JR

BETWEEN

SINA SARFARAZ

APPLICANT

AND

THE MINISTER FOR JUSTICE EQUALITY AND LAW REFORM AND THE REFUGEE APPEALS COMMISSIONER

RESPONDENTS

JUDGMENT of Finnegan J. delivered on the 3rd day of July 2001.

1. This matter comes before me as an application for leave to apply for relief by way of Judicial Review the application being one within the provisions of the Illegal Immigrants (Trafficing) Act 2000 Section 5. On the application for leave the matter was fully argued and the parties agreed that if I was satisfied that they are substantial grounds for contending that the Applicant is entitled to the relief claimed that I should go on to determine the application. I am satisfied that there are substantial grounds for contending that the Applicant is entitled to the relief sought in the Statement of Grounds for Judicial Review at paragraph (d) (iii) upon the grounds set out in paragraph (e) (i) to (iv) therein. The relief sought at paragraph (d) (iii) is as follows:-

“(iii) a declaration that the decision of a civil servant to refuse refugee status to the Applicant, which decision was arrived at on the 27th day of November, 2000 is null and void and of no legal effect. In the alternative the said decision arrived at on the said 27th day of November, 2000 was arrived at having failed to comply with the provisions of either the Hope Hanlan procedures or the Refugee Act 1996.”

2. The application arises out of the applicability to the Applicant of the provisions of the Immigration Act 1996 Section 28 which provides as follows:-

“28: Where, before the commencement of this Act, a person had made an application to the Minister for asylum but a decision in relation thereto had not being made by the Minister then, the application shall be deemed to be an application under Section 8 and shall be dealt with accordingly; any step taken by the Minister before such commencement in relation to the application (being a step required to be taken under this Act in relation to an application under this Act) shall be deemed to have been taken under this Act.”

3. The Applicant applied for refugee status and pursuant to paragraph 8 and 10 of the Hope Hanlan procedures on 6th October, 2000 he was interviewed by a person appointed by the Minister. Paragraphs 8 and 10 of the Hope Hanlan procedures provide as follows:-

“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 anyway 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.

10: A person appointed by the Minister will assess the case having regard to the interview, the report of the interview, to any written representation duly submitted and to such information as may be obtained from the UNHCR or other internationally reliable sources. Such person will make a recommendation as to whether refugee status should be granted or refused .

These paragraphs must be read together: it is clearly implicit that the person who conducts the interview under paragraph 8 is to prepare a report for the purposes of paragraph 10. The Act in Section 11 provides as follows:-

“11: (1) subject to Section 12 where an application is received by the Commissioner under Section 8 or is remitted to him or her under Section 16 or otherwise referred to him or her by the Minister and the application is not withdrawn or deemed to be withdrawn pursuant to Section 9 or 22 it shall be the function of the Commissioner to investigate the application for the purpose of ascertaining whether the applicant is a person of whom a declaration should be given.

(2) In a case to which subsection (1) or Section 12 (1) (a) applies the Commissioner shall, for the purposes of that provision, direct an authorised officer or officers to interview the applicant concerned and the officer or officers shall comply with any such direction and furnish a report in writing in relation to the application concerned to the Commissioner and the report shall refer to the matters raised by the applicant and to such other matters as the officer or officers consider appropriate and an interview under this subsection shall, where necessary and possible, be conducted with the assistance of an interpreter.”

4. I am satisfied that the interview conducted was a step taken by the Minister and that the making of a report thereon was likewise part of such step: the Minister was obliged so to proceed having undertaken to do so by the Hope Hanlan procedures: Fakih -v- Minister for Justice 1993 2 I.R. 406. The Act in Section 11 requires a corresponding step to be taken by the Commissioner. Therefore Section 28 of the Act applies and the interview and report are deemed to have been conducted and made under the Act. In so deciding I am adopting a purposive approach to the interpretation of the Act. It is the policy of the Geneva Convention and of the Act that applications for refugee status be dealt with promptly and Section 28 was intended to avoid duplication in the procedures under the Act of those already undertaken under the Hope Hanlan procedures.

5. Following the interview the interviewing officer John Mee prepared a report which he addressed to Sean McNamara who, it appears, was the person appointed by the Minister for the purposes of the Hope Hanlan letter paragraph 10 to assess the case having regard to the interview, the report of the interview, any written representations submitted, information which may be obtained from the UNHCR or other internationally reliable sources and thereon make a recommendation to the Minister as to whether refugee status should be granted or refused. It appears that the assessment was carried out by Mr. McNamara on behalf of the Minister on the 27th November, 2000 that is after 20th November, 2000 the date upon which the Refugee Act 1996 came into operation. In these circumstances the only completed step taken by the Minister under the Hope Hanlan procedures before the commencement of the Act was the conducting of the interview and the preparation of the report thereon. The further procedures envisaged by the Hope Hanlan letter at paragraph 10 while commenced were not completed prior to the commencement of the Act. I regard paragraph 10 of the Hope Hanlan as constituting a single step and that step cannot be said to have been taken until and the elements are the same and completed up to the report and recommendation to the Minister. If completed the report and recommendation pursuant to paragraph 10 of the Hope Hanlan procedures would itself correspond to a step required to be taken under the Act - the step required by Section 13 thereof - and it is also a step taken by the Minister and accordingly Section 28 of the Act would apply to the same.

Section 13 of the Act provides as follows:-

“ 13: (1) where the Commissioner carries out an investigation under Section 11, he or she shall, subject to Section 12, as soon as may be prepare a report in writing of the results of the investigation and such a report shall set out the findings of the Commissioner together with his or her recommendations whether the Applicant concerned should or, as the case may be should not be declared to be a refugee and to furnish the report to the Minister .

As the only step relevant for the purposes of Section 28 of the Act is the interview and report the procedures should now resume with the consideration of the same as if conducted and furnished under Section 11 of the Act. The Applicant is entitled to a declaration in terms of the first sentence of the relief which he seeks (d) (iii) as hereinbefore quoted.