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Cite as: [2002] IEHC 153

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THE HIGH COURT

DUBLIN

JUDICIAL REVIEW

RECORD NO. 2001/854JR

Between

C. R., V. R. AND P. R. (a minor suing by her father and next friend C. R.)

Applicants

-and-

THE MINISTER FOR JUSTICE, EQUALITY & LAW REFORM AND THE REFUGEE APPEALS TRIBUNAL

Respondents

MR. JUSTICE T.C. SMYTH DELIVERED HIS JUDGMENT ON THURSDAY, 9TH MAY 2002 AS FOLLOWS:

MR. JUSTICE SMYTH: In an affidavit sworn by the solicitor for the 1^st and 2^nd named Applicant on 13th December 2001, it is averred that they are seeking asylum in Ireland. In December 2001, a child averred to be an Irish born child (the 3rd named Applicant, born on 2nd April 2001) was "seriously ill and a patient in Crumlin Childrens' Hospital."

The history of the 1st and 2nd Applicant, insofar as it can be said to be reliably established from the documents in evidence before the Court is as follows:

C. R. is a male person of Romanian nationality who was born on 10th February 1972, he arrived in this State on 26th March 2001 and claimed asylum. At a brief interview held for the purpose of Section 8(2) of the Refugee Act 1996, as amended he gave certain particulars and signed a confirmatory statement that the information was correct and that he had been given an opportunity to amend any inaccuracies. In that document he stated that he was married, had no unaccompanied minor and that his application for asylum was not a reapplication. He had apparently paid 2500 DM to a "travel facilitator" (otherwise a euphemism for a trafficker) and gave details of his immediate family and as a wife Vera R. who was in Ireland and a son Suraj R. born on 20th October 1999 who was in Romania. At that time the 1st named Applicant was given and signed an acknowledgment of having received a notice under Article 3(3) of the Dublin Convention (Implementation) Order, 2000.

On the same date the 2nd named Applicant (whose date of birth was 10th September, 1983) was interviewed and who asserted she was married to the 1st named Applicant, she gave information similar to that of her stated husband, the 1st named Applicant and she too received and acknowledged receipt of a notice under Article 3(3) of the Dublin Convention Order.

In completing the answer to Q.84 of the Questionnaire the reason given for seeking asylum, the 2nd named Applicant expressed herself, thus:-

"Because in Romania we were not able to live in peace by the police (sic) and by the Romanians who were saying that we were gypsies and the gypsies have no rights to anything. The police was beating me and my husband on the streets.

My husband could not go to school because the police came and they took him out and said that he could not go to school because he is a gypsy. So we decided to leave and go further."

The answer of the 1st named Applicant to this query is differently expressed but substantially to the same effect. Enquiries were made of the Office of the Refugee Applications Commissioner (hereinafter referred to as "the Commissioner") under the Dublin Convention concerning the first Applicant and one dependent; and the Home Office in the United Kingdom confirmed in a fax message of 13th June 2001 that he had arrived in the U.K. on 9th October 1998 and there claimed asylum, which was refused on 25th January 2001. That Applicant appealed the refusal, failed to appear at the appeal hearing and the appeal as at June 2001 was still undetermined. The fingerprints for V. R. were identified as those of V. R., but as enquiries then stood she did not appear to have a file of her own in the Home Office, although their records showed a certain V. R./R. was recorded as having been arrested with the 1st named Applicant on a number of

occasions.

By a letter dated Tuesday, 31st July the Applicant's solicitors informed the Commissioner that the Applicants wished to formally withdraw from the asylum process on the basis of their parentage of an Irish born child. That letter refers to an application for residency stated to have been made to the Minister on 24th April, 2001.

The Commission by letter of Friday, 3rd August 2001 made a formal request of the UK authorities under Article 6(1) of the Dublin Convention (Implementation) Order 2002 and Article 11 of the Dublin Convention to take charge of the 1st named Applicant and admit him to the UK for the purpose of examining his case for asylum in accordance with Article 10(1)(E) of the Dublin Convention. The information in the possession of the Commissioner in early August 2001 (duly exhibited in the affidavit before the Court) indicates that the Commissioner requested the UK authorities to admit her to the UK for the purpose of examining her case for asylum in accordance with Articles 7 and/or 8 of the Dublin Convention.

The Home Office by fax message of 7th August 2001 accepted the transfer of the 1st named Applicant, and he was so informed by letter dated 13th August 2001 - and of his entitlement to appeal the Commissioner's decision in that regard.

The Home Office on 14th August 2001 sent a fax message to the Commissioner concerning the 2nd named Applicant in (inter alia) the terms following:-

"I have rechecked our records and established that the above named did claim asylum in the UK in her own right on 9/9/99. Her dependent son at that time was named Vasile R. 2/9/98. She claimed her husband was Traian R., 1976. Your request for transfer of responsibility for Ms. R. from Ireland to the United Kingdom is met according to Article 8 of the Dublin Convention."

The 2nd named Applicant was notified of the Commissioner's decision by letter dated 15th August 2001, and she too was informed of her entitlement to appeal that decision within a given time limit. A letter of 16/8/2001 - clearly signalled to the Commissioner the withdrawal from the asylum process of the Applicants. There does not appear to have been any acknowledgment of a letter of 31st July (earlier referred to) in any of the correspondence and it may be for this reason that the letter of 16th August 2001 was written. I am unable to establish that the letter of 31st July 2001 was ever received or known to the Commissioner on or before 16th August 2001.

While the foregoing was taking place the 3rd named Applicant was born on 2nd April 2001 - but at no time between the date of birth on 2nd April 2001 and 31st July or the 16th August 2001, whichever be the more correct date, did the Applicants or either of them disclose the birth or existence of an Irish born child to the Commissioner.

The Commissioner was duly informed by the solicitor for the 2nd named Applicant or her "withdrawal" from the asylum process by letter of 16th August 2001, namely after the Commissioner's decision to return those Applicants to the UK. The confusion as to whether one or both Applicants had withdrawn their applications is not satisfactorily explained in the documents.

The Commissioner's position is set out in a letter to the Applicants' solicitors dated 20th August 2001 and is as follows:-

"Re: R. V. aka R. V.

Ref. 69/26970/1B

Dear Sirs,

I refer to your letter to this office dated 16 August, 2001, regarding your client named above. You state in your letter that Ms. R./R. has withdrawn from the asylum process. This is technically incorrect. Ms. R./R. has indeed withdrawn her application for asylum in Ireland. However, Ms. R./R. has an outstanding application for asylum in the United Kingdom since 9 September, 1999. The United Kingdom authorities have agreed to accept the transfer of your client under Article 8 of the Dublin Convention for the purpose of considering her application for asylum.

Accordingly, a notice of determination issued to your client on 15 August, 2001. Should your client wish to appeal this decision, she should complete the notice of appeal which was enclosed with the notice of determination and submit it to the Office of the Refugee Appeals Tribunal, 6-7 Hanover St. East, Dublin 2. The appeal should be submitted before close of business on Wednesday, 22 August, 2001.

With regard to your client's application for residency on the basis of her parentage of an Irish born child, any enquiries relating to this should be forwarded to Immigration Division, Department of Justice, Equality & Law Reform, 72 - 7 6 St. Stephen's Green, Dublin 2. I have forwarded a copy of your letter of 16 August, 2001, and a copy of this reply to them.

Your sincerely,

Donagh Wiseman

Dublin Convention Unit."

The response to that letter from the Applicant's solicitors is dated 21st August 2001 and is in the terms following:- "RE: Our clients - C. R. and V. R. (otherwise R.)

Dear Sir/Madam,

Further to yours of yesterday's date and yours to our clients dated the 15^th of August 2001 we attach Notice of Appeal (x2) against a recommendation made under Article 3(l)c of the Dublin Convention (Implementation) Order 2000. We do not accept that a ruling under the Dublin Convention affects either of our clients as both have withdrawn their asylum claims and are awaiting the outcome of applications for residency on the basis of their Irish born child. Accordingly they are no longer seeking asylum and therefore fall outside the ambit of the Dublin Convention. Please address all queries and correspondence for the attention of Sarah Molloy of this office. Yours faithfully,

TERENCE LYONS & CO."

Appeals were duly lodged by the Applicants who each stated their grounds of appeal to be:-

"I do not believe that the Dublin Convention applies to me as I am no longer seeking asylum - I am now waiting for a decision re: right to residency on the basis of my Irish born child P. R. D.O.B 2/4/01 - this application was lodged at the end of April."

The response of the Refugee Appeals Tribunal (hereinafter referred to as "the Tribunal") to both appeals is identical and set out in letters of 24^th August 2001 as follows: -

"Re: Your client: C. R. -Romanian National

Your Ref: SM 15

Dear Sir/Madam,

I wish to acknowledge receipt of your client's notice of appeal, dated 21^st August 2001 and received on 22nd August 2001 to the Refugee Appeals Tribunal, against the determination of the Refugee Applications Commissioner that your client should have his application for a declaration as a refugee considered by the United Kingdom, being the convention country responsible for examining and determining your client's application in accordance with the Dublin Convention.

The Refugee Appeals Tribunal will consider your client's appeal on the papers i.e. documents furnished by the Refugee Applications Commissioner, your client's notice of appeal, any supporting documents submitted by you and the results of any further enquiries made of the Refugee Applications Commissioner under Article 7(5) of the Dublin Convention (Implementation) Order, 2000 and your response (if any) thereto. The Refugee Appeals Tribunal will notify you and your client of its decision in writing.

Please note that your client's appeal is now being dealt with in accordance with the provisions of the Refugee Act 1996, (as amended) and the Dublin Convention (Implementation) Order, 2000. Details of the procedures for processing asylum applications are set out in the "Information Leaflet for applications for refugee status in Ireland, (Appeals procedures – Dublin Convention)". Your client should already have received a copy of this leaflet. If not, copies are available from the Refugee Appeals Tribunal, 6/7

Hanover Street East, Dublin 2."

The Applicant's solicitors sometime between mid September and mid October 2001 sought to unravel the confusion arising from the Applicant's having first sought asylum, then when confronted by their own evasiveness about having sought asylum in the UK and the effectiveness of the Dublin Convention sought - without notifying the Commissioner for some months - to withdraw from the asylum process in Ireland and seek residency on the basis of an Irish born child. It is clear that in mid October 2001 no undertaking or guarantee was available to the Applicants, that the Applicants would not be deported, and the solicitors for the Applicants wrote to the Tribunal in (inter alia) the following terms:-

"....As we have been unable to establish that our clients will not be deported, we feel that the matter must be referred back to the Refugee Appeals Tribunal for a decision regarding their Notices of Appeal dated the 21st August 2001. As previously advised, we do not accept that a ruling under the Dublin Convention affects our clients. We take this opportunity to put you on notice of our intention to issue judicial review proceedings in the High Court seeking an order of certiorari, in the event that any decision is taken proposing to deport our clients...."

No proceedings were issued to prohibit the Tribunal from considering and determining the appeals, which were determined on 22nd November 2001, and notice thereof was given by letter dated 28th November 2001. It was only after the Tribunal's decision was notified that it then received a copy of a letter from the Applicant's solicitor written to the Immigration Authorities in the UK that they:

"No longer wished to pursue a claim for political asylum in any jurisdiction and, in particular, they wish to formally withdraw any claim for political asylum that remains outstanding in their behalf in the United Kingdom."

Besides any understandable concern the authorities in this State may have had that there was manipulation of the asylum process bordering on the exploitive, there is no satisfactory explanation as to why in the information given in the Questionnaires the birth and whereabouts of the son, Vasile R. born on 2nd September 1998 and a husband Traian R. born 1976 given to the UK authorities are unaccounted for or how it came about that the 2nd named Applicant applied for asylum in the UK on 9th September 1999 and left in Romania a son, Suraj R., born on 20th October, 1999, or how she travelled by road and sea on a route recorded as "Romania/unknown/Ireland" heavily pregnant so as to arrive in Ireland on 26th March 2001 and was delivered of a daughter nine days later on 4th April 2001.

The Applicants submitted that the Dublin Convention (Implementation) Order 2000 S.I. No. 343 of 2000) made pursuant to the powers conferred on the Minister for Justice Equality & Law Reform by s.22 of the Refugee Act 1996, as amended had the effect of cutting across the provisions of s.8 of the Act of 1996. In this regard he cited in support what was stated by Finlay, C.J., in Harvey -v- The Minister for Social Welfare [1990] 2. I.R. 232 at 244 as follows:-

"....For the Minister to exercise a power of regulation granted to him by these Acts so as to negative the expressed intention of the legislature is an unconstitutional use of the power vested in him."

In the instant case the preliminary interview held expressly for the purpose of s.8(2) of the Act of 1999 in both cases on 26th March 2001 is not diminished because of anything provided for under s.22 of the Regulations. The more extensive interview usually held after a completion of the Questionnaire is appropriate when and where the decision to process the application for asylum in this State has been taken or made. I reject the submission of the Applicant because the scheme of the Act is not truncated by the provisions of s.22 and S.I. No. 343 of 2000.

An argument was sought to be advanced on the Applicant's behalf that the absence of an oral hearing of their appeal was in fact a denial of the appeal right, The Supreme Court in their decision (of 28th February 2002, unreported) in Z -v- The Minister for Justice Equality & Law Reform delivered by McGuinness J., considered the absence of an oral hearing in cases classed as manifestly unfounded and determined that while a right of appeal may properly exist there is no constitutional imperative on the legislation to provide for an oral hearing of an appeal in all and every circumstances and considerations of public policy are a legitimate concern in that regard. It was submitted on behalf of the Respondent that underlying the preamble to the Dublin Convention (set out in the 4th Schedule to the Refugee Act 1996) are considerations of public policy designed to inhibit forum shopping as much as preventing the refugee in orbit syndrome. The distinction was also drawn between the Z case where the risk of the absence of an oral hearing of the Applicant was much higher than in the instant case.

There was no complaint of fact set out in the appeal to the Tribunal nor any prejudice or disadvantage advocated in respect of an oral hearing. I am satisfied and find as a fact and as a matter of law that these proceedings were brought at a time when the Irish born child, the 3rd named Applicant was in hospital and no undertaking was forthcoming not to deport the Applicant. Counsel for the Applicants informed me that the child is no longer in hospital, accordingly ground (a) of the relief sought is inapplicable. I am satisfied that the decision in the Z case renders (b) otiose. There is no evidence to sustain the assertion in ground (c), which in any event is premature, and as the Minister prior to making a deportation order under s.3 of the Immigration Act 1999 must consider the prohibition on refoulement under s.5 of the Refugee Act 1996; (d) no longer arises, but at no stage were the Applicants not allowed to apply for refugee status in the State.

Accordingly, I refuse leave to apply for judicial review.

END OF JUDGMENT