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You are here: BAILII >> Databases >> High Court of Ireland Decisions >> S. (T.R.) v. Minister for Justice, Equality and Law Reform [2002] IEHC 164 (4 October 2002)
URL: http://www.bailii.org/ie/cases/IEHC/2002/164.html
Cite as: [2002] IEHC 164
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Record No. 408JR/2000
Between/
Applicant
Respondents
MR. JUSTICE T.C. SMYTH DELIVERED HIS JUDGMENT ON FRIDAY, THE 4TH DAY OF OCTOBER 2002
MR. JUSTICE SMYTH: The Applicant is a Nigerian national who arrived in this country seeking asylum having departed from her country of origin on 15th February 1998. She stated that her departure was arranged by a man who travelled with her ( no name, except "Peter", address and occupation unspecified). She travelled by air from Nigeria to Belgium to Ireland (cost of flight, premium (if any) paid to "travel agent" unspecified and source of funds unspecified — though it may have been from a church authority or church body of some description). On arrival and seeking asylum, she was given an 'Information Guide for Applicants for Refugee Status1, which provides that:-
"You will be given access to the necessary facilities to assist you in preparing your case, including access, where available, to an interpreter. You are also free to contact a legal representative or local representative of your choice, or to contact a representative of the United Nations High Commissioner for Refugees (UNHCR). Some useful information on useful contacts is set out overleaf."
Overleaf is a specific piece of information which reads as follows:-
"Legal Representative: You may contact the Irish Refugee Council and ask for assistance with finding a legal representative in connection with your asylum application."
The Applicant elected to proceed to interview without either an interpreter or a legal representative — neither were ever denied to her and there was no unfairness to her in this regard. Indeed, she exercised her entitlement to add to the questions specifically asked and stated that she would like to have her case looked at and that she had lost her family and that living here (in Ireland) is a lovely life and that if she does go back to Nigeria there is nothing to go back to (she gave up or abandoned her own business as a hair-dresser when she had 15/20 customers per day to come to Ireland).
It is clear from the interview that she was not a member of a political party and that her uncle, whom she was closest to and might have been said to have been in loco parentis to her, got into business difficulties. He could not pay his debts and was experiencing very rough treatment from his creditors and she felt harassed. She was never threatened or abused in any way. The interview which took place on 6th May 1999 was conducted by Mr. John English, who prepared a written assessment of the claim on the same day and came to the conclusion that the Applicant did not meet the criteria set out in the 1951 Convention, the 1967 Protocol and the definition of refugee in Section 2 of the Refugee Act 1996. Recommendations were made by both a Ms. Cecelia Lynch and a Mr. Clarke on 29th September 1999, which accorded with the views taken by Mr. English.
In the events, a letter written from the Respondent Minister's Department by Cecelia K. Lynch, Higher Executive Officer in the Asylum Division, dated 10th November 1999, informed the Applicant that (under the Hope Hanlan Procedures then in operation) her application had been determined as manifestly unfounded on the following grounds:-
(i) The application did not on its face show any grounds for the contention that she was a refugee.
(ii) The Applicant gave insufficient details or evidence to substantiate the application.
(iii) The Applicant's reason for leaving or not returning to her country of nationality does not relate to a fear of persecution.
This decision was not the subject of any application for judicial review at the time it was made, nor was any good or sufficient reason referable to justify why it had not been taken promptly, advanced under the provisions of Order 84 of the Rules of the Superior Courts. That decision was then appealed to the Appeals Authority — initially, it appeared as if two different firms of solicitors had instructions to appeal. The events surrounding the inevitable unsatisfactory result have been explained without challenge in paragraphs (10) and (11) of the affidavit of Bridgeena Nolan sworn on 22nd January 2001, which is to the following effect:-
"(10) By letter dated 26th November 1999, the Applicant's current solicitor (Messrs Pendred) wrote to the Department seeking time to take instructions and make submissions. This was acknowledged by letter dated 29th November 1999 seeking confirmation that James Watters & Co. had been notified of the change in legal representation. A reply was received by fax on 10th December 1999 and by post on 17th December 1999, enclosing a written authority from the Applicant. By letter dated 21st December 1999, the Applicant's solicitor was given a copy of all the material on which the initial decision was based and was also furnished with a copy of the Hope Hanlan Procedures. He was also notified that submissions should be lodged not later than 6th January 2000, at 5.30pm ... Notwithstanding the foregoing and the fact that the case was not referred to the Appeals Authority until 18th January 2000, no submission was ever received on behalf of the Applicant.
(11) In accordance with the practice applying to all cases found to be manifestly unfounded, the United Nations High Commissioner for Refugees Senior Liaison Officer was notified of the case by letter dated 21st December 1999, but neither he nor the Applicant made any submissions. Thereafter, the appeal was forwarded to the Appeals Authority by letter dated 18th January
2000. The appeal was then considered by the Appeals Authority ..."
The case was dealt with under the accelerated procedure (considered in detail by the Supreme Court in Z -v- The Minister for Justice, Equality and Law Reform [2002] 2ILRM 215. The matter became the subject of a recommendation by the Appeals Authority in the person of Mr. Sean Delap on 7th February 2000. The Applicant was notified of the recommendation and decision of the Appeals Authority by letter dated 24th March 2000. Subsequent to that notification an application for leave to remain in the State on humanitarian grounds was made on behalf of the Applicant by letter dated 13th April 2000. Prior to any determination of that application, these proceedings issued, which were the subject of an order of Herbert J. dated 24th July 2000, who granted leave to apply for judicial review on the five amended grounds set out in that Order in respect of which a Statement of Opposition was filed by the Respondent:-
1. A Declaration that the procedures adopted by the First-Named Respondent for the processing of applications for refugee status are of no legal effect in the absence of any statutory procedures for the processing of such application and that decisions made on foot thereof are null and void.
2. A Declaration that officers authorised by the First-Named Respondent have no jurisdiction to deem an application for refugee status "manifestly unfounded" pursuant to Section 22 of the Refugee Act (as amended) 1996, or at all.
3. A Declaration that the Appeals Authority appointed by the First-Named Respondent 1996 has no jurisdiction to find an application "manifestly unfounded" pursuant to Section 22 of the Refugee Act 1996 {as amended), or at all.
4. A Declaration that the Appeals Authority appointed by the First-Named Respondent has no jurisdiction to find that an Applicant is not entitled to a substantive hearing either pursuant to Section 22 of the Refugee Act 1996 (as amended), or at all.
5. In the event that the procedures adopted by the First-Named Respondent is found to have legal effect, a Declaration that the procedure is unconstitutional in breach of Article 40 Bunreacht na hEireann.
Paragraph 1 of the grounds which were advocated in court and set out in the Statement of 25th July 2000 refers specifically to Section 22 of the Refugee Act 1996. The Dublin Convention referred to in paragraph 1 of the grounds upon which relief is sought governs the determination of the Member State responsible for examining applications for asylum. It was introduced by the Dublin Convention (Implementation) Order (SI 360 of 1997) with effect from 1st September 1997. Section 22 of the Refugee Act and the Dublin Convention have no application in respect of the claims for asylum which have been admitted for consideration in Ireland. I am satisfied and find as a fact and as a matter of law that there are no valid grounds disclosed in paragraph 1 of the grounds upon which relief is sought.
The provisions of the Refugee Act 1996 generally, and in particular with regard to the offices of the Commissioner and the Refugee Appeals Tribunal as they are now understood had not been brought into force when the decisions on this application were made. In the circumstances, neither the Commissioner or the Tribunal were the appropriate authorities to perform the functions referred to in paragraph 2 of the grounds upon which relief is sought. In an extensive and detailed judgment of the Supreme Court in The Minister for Justice, Equality and Law Reform -v- U, the Supreme Court, unreported 28th February 2002, delivered by Murphy J, the history of the Von Armin, the Hope Hanlan Procedures and the statutory scheme now in place were considered. I am satisfied that the appropriate persons in the instant case gave consideration to the matter referred to them and I apply the decision of the Supreme Court to the facts of the case.
Section 12 of the Refugee Act 1996 had not been brought into force when the decisions on this application were made and, accordingly, there are no valid grounds of relief disclosed in the notice herebefore referred to. The Act, insofar as that section is concerned, became operative on 20th November 2000.
I am satisfied and find as a fact that the procedures in relation to applications for refugeestatus as operated by the Respondent at all material times in connection with this application were in accordance with the Procedures for Processing Asylum Claims in Ireland as notified to the United Nations High Commissioner for Refugees on 10th December 1997, as amended on 13th March 1998 and 27th January 2000. The procedures reflect the principles of the 1951 Geneva Convention and were drawn up after consultations with the UNHCR, the international body set up to assist and protect asylum seekers. The procedures were designed to ensure the Applicant is given every opportunity to explain the grounds upon which his/her claim for refugee status is based. The Applicant was advised in this regard both in relation to the procedures involved and the matters that would be taken into account in the consideration of the claim. The Applicant in this case was not denied fair procedures. I adopt the judgment of O1Donovan J. in AB-M (Applicant) -v- The Minister for Justice, Equality and Law Reform and The Interim Refugee Appeals Authority and Attorney General (Respondents) (unreported 23rd July 2001), wherein he stated:-
"While the Refugee Act 1996 was signed into law by the President on 26th June 1996, the Refugee Act 1996 (Appeals) Regulations 2000 (SI No. 342 of 2000) did not come into operation until 20th November 2000. Accordingly, at the time of the events which give rise to this application, the procedure for appealing against a recommendation that a person should not be granted refugee status is governed by the 'Hope Hanlan Procedures', to which I have already referred, and, as far as I can ascertain, at that time, the First-Named Respondent had no power to delegate the appointment of officers to represent his interests in the course of implementing those procedures. Accordingly, it seems to me that the appointments of Mr. Eames and Ms. Linda Grealy were appointments which, of necessity, had to be made by the First- Named Respondent and, therefore, the recommendation and the decision which they respectively made cannot be considered to be an adjudication by the First-Named Respondent personally, hereby he is deemed to have offended a basic principle of Irish law, that no person may act as a judge in his own cause. Accordingly, I reject the Applicant's claim herein insofar as it is based on that ground."
Counsel for the Applicant sought to advance a case that because the statute made certain provisions there was an obligation on the Oireachtas or the Minister, as the case may be, to have brought same into effect so as to be of benefit to the Applicant in the instant case. In this regard reference was made to the judgment of McCarthy J. in The State (Christopher Sheehan) -v- The Government of Ireland [1988] ILRM 437. It should be noted that the decision of McCarthy J. is one of dissent and it is the lone dissenting judgment in the case. That case is concerned with the provisions of Section 60(7) of the Civil Liability Act 1991 and the possibility of their being brought into operation. The decision of Costello J. in the High Court was based on the proposition that there was a duty on the Government to bring the section into operation. The Supreme Court observed that Section 60(7) is merely enabling as it used the words "shall" and "may", which points to the conclusion that the radical law reform in the section was intended not to come into effect before 1st April 1967, and thereafter only on such date as may be fixed by Order made by the Government. In the instant case, the relevant provisions relied upon by the Applicant in this case were not in force, nor was there an obligation to bring them into force in the fashion sought by the Applicant.
The Applicant also sought to rely on the case of Youngstown Co. -v- Sawyer (United States Reports Vol. 343 Term 1951, p.579). Indeed, the opinion of the court is expressed in the judgment of Frankfurtur J. at p.593, et seq, and in particular at p.609 he stated that:-
"The Board (the Wage Board) has been given merely a mediatory power similar to those of agencies created by the Taft-Hartley Act and elsewhere, with no other sanctions for acceptance of its recommendations than are offered by its own moral authority and the pressure of public opinion. The Defence Production Act and the disputes mediating agencies created subsequent to it still leave for solution elsewhere the question what action can be taken when attempts at voluntary settlement fail. To draw implied approval of seizure power from this history is to make something out of nothing. It is one thing to draw an intention of Congress from general language and to say that Congress would have explicitly written what is inferred where Congress has not addressed itself to a specific situation. It is quite impossible, however, when Congress did specifically address itself to a problem, as Congress did to that of seizure, to find secreted in the interstices of legislation the very grant of power which Congress consciously withheld. To find authority so explicitly withheld is not merely to disregard in a particular instance the clear will of Congress, it is to disrespect the whole legislative process and the constitutional division of authority between President and Congress."
In my judgment, the passage just cited is contra to the very case being made by the Applicant.
The Hope Hanlan Procedures provide for manifestly unfounded applications to be dealt with by way of an accelerated procedure. This is in accordance with the views of the United Nations High Commissioner for Refugees and the European Council. That procedure is governed by paragraphs 12 to 14 of the Hope Hanlan letter as amended. It does not provide for an oral hearing and an oral hearing that is not available to an Applicant does not thereby deny him fair and just procedures. Indeed, from her initial application she was informed of her right to seek legal representation and at different stages during the process she did retain legal representation, and she was also informed that the appeal would be on the papers only. I am satisfied from a consideration of the Z case that the Applicant was not necessarily entitled to an oral hearing and that no injustice was done to her. If there was a failure to advance the appeal by way of further documentation by or on behalf of the Applicant or her advisors, the blame cannot be placed on the shoulders of the Respondents.
In the absence of the proper parties to the proceedings relief No.5 does not arise. In my judgment, the Applicant is not entitled to judicial review and, accordingly/ I dismiss the application.
END OF JUDGMENT