High Court of Ireland Decisions

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 grounding application for Judicial Review at paragraph (d) (i) to (iii) inclusive upon the grounds set out at paragraph

2. The circumstances giving rise to the application for Judicial Review are as follows. The Applicant applied for refugee status on 9th August, 2000. His application was being processed under the procedures which were in place up to the 19th November, 2000 which are known as the Hope Hanlan procedures. The Refugee Act 1996 established new procedures and the relevant part of the Act came into operation on the 20th November, 2000. The Refugee Act 1996 Section 28 thereof contains transitional provisions and provides as follows:-

3. The position with regard to the Applicant is that his application was being dealt with the Hope Hanlan procedures. The steps taken were as follows:-

4. By letter dated 1st December, 2000 the Applicant was informed that his application had been determined and he is not being granted a declaration of refugee status. By the letter the Applicant was further informed as follows:-

5. I am satisfied that on the true interpretation of this provision any step taken by the Minister before the commencement of the Act which corresponds to a step which is required to be taken by the Refugee Applications Commissioner pursuant to the Act is to be deemed to be a step taken by the Refugee Applications Commissioner under the Act. Thus under the Hope Hanlan procedures paragraph 8 the Minister is required to arrange for the Applicant to be interviewed: the Refugee Act 1996 Section 11 imposes a like obligation so however that the authorised officer is to be authorised not by the Minister but by the Refugee Applications Commissioner. I am satisfied that the effect of Section 28 is that the interview in fact conducted under the Hope Hanlan procedure paragraph 8 is deemed to have been an interview conducted under the Refugee Act 1996 Section 11. Paragraph 8 of the Hope Hanlan letter must be read in conjunction with paragraph 10 thereof and so by implication there must be prepared a report of the interview for the purposes of the assessment pursuant to paragraph 10 of that procedure. Paragraphs 8 and 10 of the Hope Hanlan procedures correspond with Section 11 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 of the Act is intended to avoid duplication in the procedures under the Act of those already undertaken under the Hope Hanlan procedures. Both the Hope Hanlan procedures and those under the Act were designed to give effect to the Geneva Convention which enjoins prompt determination of applications and this justifies the provisions of Section 28 their effect being that the interview conducted with the Applicant and the report thereon operated as if undertaken pursuant to Section 11 of the Act.

6. The next step in the Hope Hanlan procedures is that in paragraph 10:-

7. On the papers exhibited on this application it appears that an assessment was indeed carried out by one Tom Conroy a person appointed by the Minister and sent by him to Eamonn Mulligan and Gerry Shannon persons authorised by the Minister. The assessment however does not contain a recommendation. It seems therefore that the next step envisaged by the Hope Hanlan procedures at paragraph 10 was not in fact completed. Notwithstanding the absence of a recommendation Gerry Shannon made a decision on the 17th November to refuse the Applicant refugee status. After the refusal the Act came into force and the Commissioner then made a recommendation to the Minister to refuse the Applicant refugee status. Paragraph 10 of the Hope Hanlan procedures envisages a single step - an assessment by an officer with a recommendation. The Act in Section 13 likewise envisages an assessment and recommendation by the Commissioner. The incomplete step taken under the Hope Hanlan procedures is not in my view a step taken by the Minister and therefore Section 28 of the Act cannot apply to. Had this step been properly completed and a recommendation made by Tom Corroy I would be satisfied that it corresponds with the step required to be taken by the Commissioner under Section 13 of the Act. I am not satisfied that Section 28 permits as has happened here namely

8. In the circumstances of this case I am satisfied that the only step taken in relation to the Applicant’s application for refugee status which is to be deemed to have been taken under the Act is the conduct of the interview and preparation of a report thereon and which having regard to Section 28 of the Act is deemed to be an interview and report under Section 11 of the Act. In these circumstances I propose to make a declaration in the terms sought by the Applicant at paragraph (d) (i) of the application for Judicial Review but substituting in the last line thereof for “Section 11” the words “Section 13”.