Supreme Court of Ireland Decisions

1. These two appeals arise from judicial review proceedings brought by the Applicant/Appellant in which he sought to challenge a number of decisions and recommendations made in the course of his application to the first named Respondent to be granted refugee status in this jurisdiction. The Appellant has appealed against the judgment and order of Finnegan J. of 29th March 2001, in which the learned trial judge gave leave to the Appellant to bring judicial review proceedings on one ground only and refused leave on all the other grounds put forward. The Appellant has also appealed against the subsequent judgment of Finnegan J. delivered the 17th July 2001 and his order made the 26th

2. July 2001. This judgment and order followed on the substantive hearing of the Appellant’s judicial review proceedings, in which the trial judge refused the relief sought.

3. The Appellant is a 53 year old Russian national who arrived in this country on the 18th October 1999 and on that date made an application for refugee status to the first named Respondent. The Appellant was born in Leningrad/St. Petersburg, is divorced and has two daughters. He states that he has “no religion” but is ethnically a Jew since his mother was Jewish. He qualified both as a ship’s mechanic and as a mechanical engineer and for over twenty years worked for a firm engaged in underwater pipeline construction. He served three periods of military service, gained the rank of lieutenant captain, and remained in the military reserve. He was a member of the Communist Party from 1976 to 1989.

4. On the 21st October 1999 the Appellant filled in a standard questionnaire in regard to his application for refugee status. On 8th June 2000 he was interviewed by Ms Majella Donoghue of the Department of Justice, Equality and Law Reform. English language versions of the questionnaire and the notes taken by Ms Donoghue at the interview have been exhibited in the proceedings. The Applicant claims that in October 1996 he was sent by the military authorities in Russia to Chechnya to work on the restoration of an oil pipeline there. He was wounded during an attack by Chechnyan paramilitaries and was subsequently kidnapped by Chechnyans and held captive for a period of a year. He states that the Russian authorities made no attempt either to free him or to ransom him. He claims that the Russian authorities brought criminal charges against him for surrendering his weapons to the paramilitaries and for disobeying his superiors’ orders, among other matters. However in another part of the questionnaire he appears to state that there is an amnesty at present in regard to these offences. He claims that eventually in November 1997 he ransomed himself by giving all his property including his apartment in Leningrad, his summer house in Repino and two cars to the Chechnyan paramilitaries. He still owes $5,000 to the paramilitaries and is afraid to return to Russia on this account. As additional grounds to illustrate his fear of persecution Mr Z. stated that during his life in the USSR he was repeatedly subjected to humiliation on the part of his compatriots because of his Jewish origin. He also stated that there were unceasing attacks on him because of his past political views as a member of the Communist Party up to 1989.

5. In December 1997 Mr Z. left Russia and flew to South Africa, apparently on an ordinary tourist visa. He stayed for one year and ten months in South Africa. He appears to have sought refugee status in South Africa but was told that he must apply to the South African Embassy in Moscow. While in South Africa he worked as a ship’s mechanic and states that he had no problems with the authorities there. He decided to leave South Africa because the situation there was impossible for white people. He could not get a job and it was dangerous to go out at night. On the advice of a friend he decided to seek refugee status in Ireland. He travelled by cargo ship from Capetown to Belfast and subsequently came by bus to Dublin.

6. As soon as the Appellant arrived in this country he applied for refugee status. He was informed that his application would be dealt with in accordance with the Hope Hanlan Procedures, to which I will refer later. He was furnished with a copy of those procedures by letter of 18th May 2000 and as stated above he was interviewed by Ms Majella Donoghue on 8th June 2000. On or about the 21st June 2000 Ms Donoghue sent a report on the Appellant’s case to her superior, Mr Enda Hughes, Higher Executive Officer in the Asylum Division of the first named Respondent. In her report she concluded that the Applicant’s asylum application should be considered “manifestly unfounded” . On the 22nd June 2000 Mr Hughes made a decision that the Appellant’s case was “manifestly unfounded” on the grounds of paragraphs 14(a), 14(b) and 14(c) of the Hope Hanlan Procedures. The Appellant’s case was thereafter dealt with in accordance with an accelerated procedure. The principal effect of this accelerated procedure was that any appeal by the Appellant against the decision of Mr Hughes would be based on the available papers. There would not be an oral hearing of his appeal.

7. On 29th June 2000 the Appellant received a letter from Mr Hughes informing him of the determination that his case was manifestly unfounded and giving him information with regard to his opportunity to appeal and with regard to the obtaining of legal advice. At this stage the Appellant attended a solicitor attached to the Refugee Legal Service and received legal advice and assistance. An appeal was lodged on his behalf by way of letter with enclosures on the 17th July 2000. This appeal was considered by the second named Respondent James Nicholson sitting as the appeals authority. He made a recommendation to the deciding officer of the first named Respondent, Ms Linda Greally. In accordance with Mr Nicholson’s recommendation Ms Greally decided to uphold the original decision and refuse the Applicant’s appeal. The Appellant received notification of the refusal of his appeal on 5th September 2000. He received further legal advice and, having obtained a legal aid certificate, he sought leave from the High Court to issue judicial review proceedings on 25th September 2000.

8. In his Statement grounding his application for judicial review the Appellant sought various reliefs by way of orders of certiorari and declarations. In summary he sought to quash the various decisions and recommendations made by the first and second named Respondent that his claim for refugee status should be treated as “manifestly unfounded” and should be dealt with under the procedures relevant to this type of application. In addition he sought a declaration that in all the circumstances the third and fourth named Respondents had failed to vindicate and protect the right of the Appellant to fair procedures under the Constitution of Ireland 1937 and/or Article 6(1) of the European Convention on Human Rights. In his Statement the Appellant set out a number of grounds on which he relied. In this Court he stated through his counsel that he no longer relied on the grounds set out at (a), (b) and (c) in his statement since these grounds had already been rejected in the judgment of this Court in P v The Minister for Justice, Equality and Law Reform [2002] 1 ILRM 16 . The other grounds which were relied on both in written and oral submissions to this Court were, in summary, as follows:-

9. At paragraph E (j) the Appellant set out a further ground as follows:

10. This ground was the subject matter of the second appeal before this Court.

11. The Appellant's judicial review proceedings are governed by Section 5 subs. (2) and (3) of the Illegal Immigrants (Trafficking) Act 2000, which provide as follows:-

12. The remainder of the section is irrelevant.

13. The Appellant’s application for leave was therefore heard on notice in the High Court by Finnegan J. (as he then was), who delivered his reserved judgment in the matter on the 29th March 2001.

14. In his lengthy and careful judgment the learned trial judge set out in detail the procedures for dealing with applications for refugee status in this jurisdiction. He then considered in turn and in detail each ground put forward by the Appellant in his Statement of Grounds. He also carefully considered the meaning of the phrase “substantial ground” in Section 5 of the Act of 2000 and referred to the judgment of this Court on the Reference of the Illegal Immigrants (Trafficking) Bill 1999 which was delivered on 28th August 2000. At page 24 of that judgment the Court stated:

15. The learned trial judge also referred to relevant passages from McNamara v An Bord Pleanála and Jacksonway Property Limited v The Minister for the Environment and Local Government and Others (High Court Geoghegan J. 2nd July 1999).

16. Having considered each of the grounds put forward by the Appellant the learned trial judge held that he was not satisfied that the grounds set out by the Appellant in his statement (other than the ground set out at sub-paragraph (j)) were substantial and accordingly he refused leave on all of those grounds.

17. With regard to the ground at sub-paragraph (j) - the failure to provide an oral hearing at the appeal stage - the trial judge considered that there was “no universal requirement or general entitlement to an oral hearing of an appeal.” However having considered the dicta of the United States Supreme Court in Goldberg v Kelly 397 U.S. 254 he felt that this was at least a substantial ground and accordingly he granted leave to the Appellant to apply for the relief sought under this heading.

18. Subsequent to the judgment and order of the 29th March 2001, the Appellant applied to Finnegan J. for a certificate of leave to appeal pursuant to Section 5(3)(a) of the Act of 2000. Having heard counsel Finnegan J. certified that the following question should be referred to this Court:-

19. By notice of appeal dated the 26th November 2001 the Appellant appealed to this Court. His grounds of appeal are set out as follows:-

20. The Appellant’s substantive application for judicial review was also heard by Finnegan J., who delivered a reserved judgment on the 17th July 2001. He rejected the application. Insofar as the application was grounded on the European Convention on Human Rights he held that the Convention is not part of domestic Irish law at present and accordingly he did not propose to have regard to the provisions thereof. This ground did not form part of the appeal to this Court.

21. The learned judge then fully considered the procedures for dealing with “manifestly unfounded” cases provided in the Hope Hanlan letter. He went on to refer to the requirements of natural justice where a person whose conduct is impugned is appearing before a Committee or Tribunal as set out in In Re Haughey [1971] IR 217 at 264 . He went on to say:-

22. Having considered the provisions of the United Nations Handbook on Procedures and Criteria for Determining Refugee Status, which he held to be a legitimate aid to the interpretation of the Geneva Convention, he concluded that the absence of provision for an oral hearing of the appeal from a decision that an application for refugee status is manifestly unfounded does not infringe the right of an Applicant for refugee status to natural and constitutional justice.

23. On the application of the Appellant, the learned trial judge again granted a certificate of leave to appeal to this Court on the following question:

24. By notice of appeal dated the 29th November 2001 the Appellant appealed to this Court on the following grounds:

25. The history of the development of procedures for processing claims for refugee status in this jurisdiction has been set out in a number of previous judgments both of the High Court and of this Court and has been fully considered by the learned trial judge in his judgment. It is sufficient here to deal with these procedures in summary. Ireland is a signatory to the United Nations Convention on the Status of Refugees and Stateless Persons 1951 and the 1967 Protocol thereto (The Geneva Convention). The provisions of the Geneva Convention have now been brought into effect in Irish domestic law by the Refugee Act 1996 (as amended). The main provisions of the 1996 Act were not brought into operation until the 20th November 2000, and were thus not applicable to the present Appellant. As already stated, the Appellant’s claim for refugee status was dealt with under the procedures set out in a letter dated the 10th day of December 1997 from the Assistant Secretary of the first-named Respondent’s Department to Ms Hope Hanlan, who was the UNHCR representative. Amendments were made to that scheme by a letter to Ms Hanlan from the Assistant Secretary dated the 13th March 1998. I attach the two Hope Hanlan letters as an appendix to this judgment. The first named Respondent accepts that the terms of the Hope Hanlan letters are binding on him.

26. The Conclusion of EXCOM is reflected in paragraphs 12 to 14 of the Hope Hanlan letter under the heading “Manifestly unfounded cases: accelerated procedure” :

27. Paragraph 14 is continued by a number of further sub-paragraphs numbered (e) to (l) but none of these sub-paragraphs are relevant to the present Appellant’s case. His application was rejected on the grounds that it came within paragraph 14(a), (b) and (c).

28. In this context it is also necessary to refer to the definition of a refugee which is contained both in the Geneva Convention and in the Refugee Act 1996, as follows:

29. It will be seen from this definition that the refugee’s fear of persecution must be “well founded” . It must also be fear of persecution for one or more of the reasons set out in the Convention - race, religion, nationality, or membership of a particular social group or political opinion. These are usually known as “Convention reasons” .

30. The learned trial judge held, correctly in my view, that it was appropriate for him to have regard to the Handbook on Procedures and Criteria for Determining Refugee Status published by the Office of the United Nations High Commission for Refugees. Counsel for the Appellant in his argument to this Court relied to a considerable extent on the terms of this Handbook. It was pointed out by counsel for the Respondent that the Handbook did not deal with the accelerated procedure for manifestly unfounded applications and that, in fact, the 1992 edition of the Handbook on which reliance was placed was published before the writing of the Hope Hanlan letters. It seems to me, however, that the guidelines contained in the Handbook are of relevance in considering the arguments made by counsel on both sides in this appeal and according I refer to a number of passages from the Handbook here.

31. Under the heading “well founded fear of being persecuted” the Handbook gives a general analysis of this crucial phrase. Paragraphs 37 to 42 are particularly relevant and I reproduce them here:

32. In his submissions to this Court Senior Counsel for the Appellant, Mr Shipsey, argued that the learned trial judge had erred in basing his decision to refuse leave in his judgment of 29th March on the well known text set out in the State (Keegan) v The Stardust Victims Compensation Tribunal [1986] IR 6421 and in O’Keeffe v An Bord Pleanála [1993] 1 IR 39 . He referred to paragraph 14(a) of the Hope Hanlan Procedures which provided as a ground for determining that a claim is manifestly unfounded that “it does not show on its face any grounds for the contention that the Applicant is a refugee.” On the contrary, Mr Z. had claimed that he suffered fear of persecution due both to his Jewish origins and to his former membership of a Communist Party, both of which clearly related to “Convention reasons” . Mr Shipsey was critical both of the interview with Mr Z. carried out by Ms Majella Donoghue and of her report on his application. She had, he said, laid far too much emphasis on the detail of his sojourn in South Africa and his reasons for leaving there. Her proper task was to ascertain the reasons why Mr Z. was unwilling to return to Russia, the country of his nationality. She had failed to question him about the “humiliations” which he had said in the questionnaire that he had suffered because of his Jewish origin. She had not dealt with his persecution on account of his Communist Party affiliations. She appeared to doubt the credibility of his account of being forced to give his property in St. Petersburg to Chechnyan paramilitaries. Research from independent sources would have informed her that a Chechnyan “Mafia” operated in the major Russian cities. While Mr Z.’s kidnapping, captivity and ransom had not been carried out at the hands of the Russian State, it was clear that the forces of the State had been either unable or unwilling to protect him. On the contrary they had brought criminal charges against him. In view of what was claimed by Mr Z., it might have been reasonable to consider his claim was unfounded, but it was surely unreasonable/irrational to hold that it was “manifestly unfounded” .

33. Mr Shipsey in his submissions regarding the proper test in refugee cases relied on a number of English cases, in particular Bugdaycay v Secretary of State for the Home Department (1987) 1 All E.R. 980, R v Secretary of State ex p. Cambolat (1998) 1 All ER 161 and R. v Ministry of Defence ex p. Smith (1996) 1 All ER 257 .

34. The English Court of Appeal in the decision in Cambolat recognised that a Court exercising its judicial review jurisdiction must subject the decision impacting fundamentally on the human rights of a given Applicant to “anxious scrutiny” . The Court endorsed the statement of Lord Bridge in the judgment of the English Court of Appeal in Bugdaycay to the effect that:-

35. In further submissions Mr Shipsey referred to the right to fair procedures and submitted that it was settled law that the Appellant as a non-national was entitled to fair procedures and was entitled to apply to the Irish Courts to defend and vindicate his right to natural and constitutional justice. He analysed the terms of the Geneva Convention and the Refugee Act 1996, referring in particular to Section 5 of that Act which prohibits refoulement, providing that:-

36. He submitted that, as a contracting party to the Geneva Convention, the State was obliged under domestic and international law to ensure that refugees presenting themselves in the State seeking protection were identified and their status recognised.

37. Counsel went on to refer to the UNHCR Handbook quoted above and submitted that it provided that the burden of proof of establishing refugee status was shared between the Applicant and the assessing authority. He drew attention to the section entitled “Establishing the Facts” where it was envisaged that “while the burden of proof in principle rests on the Applicant, the duty to ascertain and evaluate all the relevant facts is shared between the Applicant and the examiner...” (para 196). Counsel also referred to the EXCOM document quoted above.

38. In summary, he submitted that the facility of an accelerated procedure was exceptional and was a limited derogation from the general principles and methods to be applied in the determination process. In the instant case the Appellant had submitted a claim which prima facie related to the criteria for the granting of refugee status laid down in the 1951 Convention.

39. With regard to the Appellant’s second appeal concerning the failure to provide an oral hearing on appeal against a determination that an application for refugee status was manifestly unfounded, Counsel for the Appellant relied on the case of Galvin v The Chief Appeals Officer [1997] 3 IR 240 and the State (Haverty) v An Bord Pleanála [1987] IR 485 . He submitted that there was no doubt that in the instant case an important right was at issue. The dispute between the parties concerning the reliability of the information given by the Appellant in the questionnaire and at the interview, the reliability of the opinions of the decision-makers at first instance, on the one hand and the accuracy and reliability of the material relied on by the Department on the other, made it imperative that witnesses be examined and if necessary cross-examined under oath before the second named Respondent.

40. Mr Shipsey laid considerable stress on the need for an opportunity both to cross-examine witnesses and also to expand orally on the material dealt with in the questionnaire and the interview. He stressed that the Appellant had not the benefit of legal advice either when filling in the questionnaire or when attending the interview. He concluded by submitting that in operating a system where no oral appeal was permitted the Respondents were in breach of natural and constitutional justice.

41. Senior Counsel for the Respondents, Mr Callanan, drew attention to the fact that a deportation order had not yet been made in respect of the Appellant, who had now applied for humanitarian leave to remain. Prior to making a deportation order the Minister would have to ensure that he had complied with Section 5 of the 1996 Act - the prohibition on refoulement. It was premature for the Appellant to argue that the decision to refuse him refugee status endangered his life or liberty.

42. At this point I would comment that, while the point made here on behalf of the Respondent is technically correct, it carries a certain air of unreality in the case of a person whose application has been held to be manifestly unfounded. Other aspects of the Respondents arguments carry more weight.

43. Counsel for the Respondents also referred to the UNCHR Handbook, and stressed that the Handbook did not deal with the issue of manifestly unfounded procedures. The procedure was not dealt with in the Handbook to any significant degree and the Handbook did not envisage or prescribe any appeal against the refusal to grant refugee status. He pointed out that the Appellant was informed that his application would be dealt with under the Hope Hanlan Procedures and were sent a copy of the Hope Hanlan letter which, of course, included paragraphs 12 to 14 setting out the accelerated procedure.

44. Mr Callanan contended that the learned trial judge had been correct in having regard to the principles set out in O’Keeffe v An Bord Pleanála in the context of judicial review. There was ample relevant material before the decision-maker to support the decision. The well established irrationality test should apply; in this context Mr Callanan opened a number of Irish and English authorities including Chief Constable of North Wales Police v Evans [1982] 3 All E.R. 141, the State (Keegan) v Stardust Victims Compensation Tribunal [1986] IR 6421, O’Keeffe v An Bord Pleanála [1993] 1 IR 39, Garda Representative Association v Ireland [1994] 1 ILRM 81 and Radio Limerick One v I.R.T.C. [1997] 2 ILRM 1 . In particular he relied upon the dictum of Murphy J. in this Court in Devlin v Minister for Arts, Culture and the Gaeltacht [1999] 1 ILRM 462 at 474 :-

45. In summary Mr Callanan submitted that the circumstances in which the Courts are prepared to interfere with decisions of administrative bodies on the grounds of irrationality are extremely limited. This had been borne out by many decisions of the High Court and of this Court.

46. Counsel went on to refer to the English cases opened by Mr Shipsey in which reference had been made to the need for “anxious scrutiny” or “heightened scrutiny” in dealing with decisions concerning refugees. He pointed out that in the Bugdaycay case Lord Bridge of Harwich held as follows:

47. Mr Callanan argued that the references that were made in Bugdaway and Cambolat to anxious or heightened scrutiny were made in the context of deportation and possible refoulement. This was not the case here.

48. Counsel also submitted that the Appellant’s reference in the questionnaire to “humiliations” suffered due to the Appellant’s Jewish origin referred quite specifically to his life “in the USSR”. There was no allegation at all of persecution under the present Russian regime. In respect of his pre-1989 membership of the Communist party, this was a problem which the Appellant shared with millions of Russians including members of the present Government of that country. He gave no indication as to why he particularly should be persecuted for these political reasons. No detail of specific persecution was given. As regards the allegations concerning his fears of the Chechnyan paramilitaries, there was no indication that the Appellant had ever sought protection from the authorities of the State.

49. With regard to the second appeal on the oral hearing issue, Mr Callanan submitted that there was no legal authority whatever for the proposition that an oral hearing was necessary in all appeal cases. In addition, as was noted by Finnegan J. in his judgment, the Appellant had at no stage indicated how he had been prejudiced by the failure to have an oral hearing. The Appellant was entitled to make additional written representations subsequent to the interview but did not do so. Neither in his appeal nor elsewhere had he challenged any factual inaccuracy in the interview notes or the report of Ms Donoghue.

50. Counsel also raised queries as to the context in which cross-examination could take place at an oral appeal of this type. There were no witnesses as such; the independent information regarding conditions in Russia was in purely written form. The Hope Hanlan Letters themselves envisaged an appeal based on the papers; this type of appeal was commonplace in many contexts in other jurisdictions . In Irish law there was no hard and fast rule as to an oral appeal. In Mooney v An Post this Court had underlined that the principles of natural and constitutional justice could be complied with within a dismissal context without providing an oral hearing. Counsel submitted that the Appellant’s rights to natural and constitutional justice were not infringed by the lack of an oral appeal.

51. The constitutional and general status of non-nationals was considered by this Court in its judgment in In the Matter of Article 26 of the Constitution and Section 5 and Section 10 of the Illegal Immigrants (Trafficking) Bill 1999 (28th August 2000) . At page 27 it was stated:

52. The proceedings brought by the Appellant are based on the facts of his claim to refugee status and on the operation of this State’s procedures to assess that claim. They are nevertheless judicial review proceedings, as provided by Section 5 of the Act of 2000.

53. They share the characteristics of all judicial review proceedings. Judicial review is concerned not with the decision, but with the decision-making process. As was stated by Finlay C.J. in O’Keeffe v An Bord Pleanála [1993] 1 IR 39, 71 :

54. The Appellant in his challenges to the decisions and recommendations made in the course of assessment of his refugee status claims that those decisions and recommendations were unreasonable or irrational and thus ultra vires . The test of unreasonableness is set out in the familiar passage from the judgment of Henchy J. in the State (Keegan) v The Stardust Victims Compensation Tribunal [1986] IR 642 :

55. This general approach to judicial review is echoed in the judgment of Kelly J. in the High Court in Flood v Garda Compensation Complaints Board [1997] 2 IR 321 at 346 :-

56. I am therefore satisfied that in the instant case the learned trial judge was correct in applying these well established standards and parameters of judicial review in his consideration of the decision-making procedures of the Respondent.

57. Should he, in addition, have applied an additional element of “anxious scrutiny” or “heightened scrutiny” as required in the English cases opened to this Court by Mr Shipsey? I accept that the outcome of the Respondents’ decisions, and of this Court’s decision, is of crucial importance to the Appellant’s future. It is true that no decision has yet been made by the first named Respondent to make a deportation order in respect of the Appellant. It is also true that, pursuant to Section 5 of the 1996 Act, the first-named Respondent must assure himself that the deportation of the Appellant would not amount to refoulement. The determination that his case is manifestly unfounded is, however, likely to be influential in regard to further decisions in the Appellant’s case.

58. The outcome of judicial review proceedings in many cases and in many contexts is of crucial importance to Applicants. The Court is committed to submitting the decision-making process in all cases to careful scrutiny. In the instant case the learned High Court judge delivered two lengthy, careful and detailed reserved judgments. It cannot be argued that he did not subject the Appellant’s claim to the most careful scrutiny.

59. I have a certain difficulty in the interpretation of the phrases used by the English Courts in the cases to which we have been referred - “anxious scrutiny” , - “heightened scrutiny” , and similar phrases. From a humane point of view it is clear that any Court will most carefully consider a case where basic human rights are in question. But from the point of view of the law, how does one define the difference between, say, “scrutiny”, “careful scrutiny” , “heightened scrutiny ”, or “anxious scrutiny” ? Can it mean than in a case where the decision-making process is subject to “anxious scrutiny” the standard of unreasonableness/irrationality is to be lowered? Surely not. Yet it is otherwise difficult to elucidate the legal significance of the phrase. It must be said that this aspect of the case was not fully argued before this Court so that my remarks in this context are merely a preliminary impression. Further consideration must await a fuller argument in a future case. For the present I consider that it is sufficient that the Applicant’s judicial review application receive careful scrutiny under the established standards relating to unreasonableness.

60. Counsel for the Appellant has made a number of criticisms of the decision-making process. Some of these I accept. It seems to me that both in Ms Donoghue’s interview of the Applicant and in her report too great attention was paid, and too much emphasis placed, on his sojourn in South Africa and his reasons for leaving that jurisdiction. The question for the assessor and for the first named Respondent was whether the Applicant had a well founded fear for Convention reasons of returning to his own country. Therefore the essential matter to be investigated was why Mr Z. left Russia and why he feared to return there. His reasons for leaving South Africa could be relevant only to his credibility, and there is no suggestion that the reasons he gave were other than credible, even if to some eyes they might not appear creditable. He had no right to remain in South Africa, where he was an alien with only a visitor’s visa. His reasons for leaving there are irrelevant to his application for refugee status here.

61. I would not, however, accept the criticism that Ms O’Donoghue failed in her duty because she did not bring out further information in regard to the question of Mr Z.’s Jewish background or his membership of a Communist Party. The burden of proof of establishing refugee status is on the Applicant and it was open to Mr Z. whether at his interview, by additional submissions after his interview, or in submissions at the time of his appeal, to bring forward detailed evidence of his persecution on either of these (clearly Convention) grounds. He did not do so and in my view this largely justifies the criticism of his claim made in this Court by Mr Callanan. To an extent his difficulties in Chechnya may be ascribed to the fortunes of war rather than to persecution, or to failure of protection by his own State. Again he gave no account of seeking the protection of the authorities from the Chechnyan paramilitaries once he had escaped from their clutches.

62. I should here refer to Mr Shipsey’s argument that in these cases there is a “shared burden of proof” between the Applicant for refugee status and the assessor. He referred to paragraph 196 of the UNHCR Handbook:-

63. This paragraph must, however, be read in conjunction with the previous paragraph:-

64. It is, I understand, the practice of those involved in assessing applications for refugee status on behalf of the first named Respondent to obtain in each case independent evidence of matters relevant to the Appellant’s evidence of persecution in his or her own country. From the exhibits before the Court it is clear that such was done in Mr Z.’s case. This type of investigation would, I consider, be a major part of the duty to ascertain and evaluate which is referred to in paragraph 196. From the available information exhibited it is clear, for example, that anti-Semitism is still common in Russia. This would go to proving the objective element in the assessment. This information cannot, however, replace the need for the provision of factual evidence by the Appellant of incidents of actual

65. Ms Donoghue in her report on the Appellant’s case found that his claim was manifestly unfounded as falling under paragraph 14(a), (b) and (c) of the Hope Hanlan Letter. Mr Hughes in his decision came to the same conclusion, and their conclusions were upheld by Mr Nicholson on appeal. Were any or all of these decisions unreasonable/irrational in the sense used by Henchy J. in the Stardust case or Finlay C.J. in the O’Keeffe case?

66. Paragraph 14 of the Hope Hanlan Letter where relevan t provides as follows:

67. As far as paragraph 14(a) is concerned it seems to me difficult to accept on the material that was before the decision-makers that it was reasonable in this sense, or indeed in any sense, to conclude that the Applicant’s application did not show on its face any grounds for the contention that the Applicant is a refugee. As far as paragraphs 14(b) and (c) are concerned, however, it appears to me that there was sufficient material, or lack of material, before the decision-makers to render the decisions reasonable, and therefore intra vires .

68. I would accordingly dismiss the Applicant’s first appeal.

69. I now turn to the second appeal. Here I would accept the submission on behalf of the Respondents that there is no authority to establish that an oral hearing on appeal is necessary in all cases. The Appellant is not in the position of an accused person facing prosecution. There are no witnesses against him. He is not in a position to cross-examine the assessors of his claim and it is difficult to see how in these circumstances a right to cross-examine is relevant. He may certainly wish to expand on either his own evidence or independent evidence concerning the conditions prevailing in his country of origin but it is open to him to provide this information in writing. His appeal was drafted on his own instructions by his solicitor and did not challenge the factual matters set out in the papers provided to him.

70. Hogan and Morgan in Administrative Law in Ireland (3rd edition) at page 556 discuss the right to an oral hearing, the right to summon witnesses and the right to cross-examine. They state:

71. The authors draw attention to the comments of Keane J. (as he then was) in The State (Williams) v Army Pension Board [1981] ILRM 379 at 382 :-

72. It should be noted that in these references the authors are dealing with situations where there is no oral hearing even at first instance. Here there has already been an oral hearing at first instance.

73. The Hope Hanlan Letter itself deals with the matter of appeals in the context of the accelerated procedure and provides for an appeal in writing. An oral appeal is, therefore, not considered necessary in the system set up by agreement between the UNHCR and the first named respondent.

74. The learned High Court judge held that the absence of provision for an oral hearing of the appeal from a decision that an application for refugee status is manifestly unfounded did not infringe the right of an Applicant for refugee status to natural and constitutional justice. In this he was, in my view, correct.

75. I would also dismiss the Appellant’s second appeal.

76. I am in agreement with the judgment to be delivered by McGuinness J.

77. McGuinness J. has indicated that the issue of the test to be applied – often referred to as the test in O'Keefe v. An Bord Pleanála [1993] 1 IR 37 – was not fully argued and that her remarks are merely a preliminary impression; that further consideration must await a fuller argument in a future case. I too await a fuller argument on this issue in a future case.