High Court of Ireland Decisions

1. The Applicant is a Romanian National, male, single and avers that he is of orthodox religion. He left Romania on 8th February, 1999 and arrived in this state on 15th February, 1999. He applied for refugee status and was given an application form indicating that he would be interviewed, and that if he wished, an interpreter would be provided. He was also given an information leaflet in his own language which (inter alia) provided:-

2. On 18th February, 1999 the Applicant completed a questionnaire - in respect of which he made reply to question eighty four as to why he was seeking asylum. By letter of 24th June, 1999 the Applicant was requested to attend an interview on Thursday 22nd July, 1999 (which for reasons unexplained and almost certainly irrelevant did not take place until a week later i.e. 29th July, 1999). He was therein specifically advised -

3. The report of the Interview contains an acknowledgement by the Applicant that he understood the purpose of the Interview was to examine his application for refugee status and also that if there was a negative decision he would have an opportunity to appeal the decision to the Appeals Authority. The Interview concluded, the Applicant signed a form in which he affirms that he understood how important it was that he had supplied the Department (of the Respondent) with all of the relevant information and documentation at the time to allow the Department to make a fair assessment of his claim. He also affirmed that the information recorded in the report was as stated by him. He was informed of his right that at any time before or up to five working days after the Interview further representations could be made by him or on his behalf. Inquiry was made off him if he wished to have a copy of the Interview notes - which he indicated he did, and he was given same and signed a receipt.

4. A formal report and recommendation was prepared by the Interviewer Tony Long for Mr. G. Shannon, HEO and Ms. M. Walsh A.P. on foot of not only the Interview notes (as is clear from the report of the Interview signed by the Applicant) but also the application form and other documentation (to include the questionnaire, with its reply to question 84). Furthermore, as this was a case at that time generally governed by the Hope Hanlan procedures there was an obligation under paragraph (10) thereof on the Respondent or of those acting for and on his behalf to take into account “such information as may be obtained from the UNHCR or other internationally reliable sources”. I am satisfied that tab (a) and (b) referred to by Mr. Long meet this requirement altogether from the averment at paragraph 7 of Ms. Greely’s Affidavit.

5. The decision at first instance was conveyed to the Applicant by letter of 5th January, 2000 and was adverse to the Applicant. The entitlement to appeal was pointed out to the Applicant, who was advised -

6. As appears in paragraph 4 of the Affidavit of Linda Greely the Applicant choose not to take legal representation until January, 2000. In the events an appeal was lodged. The status and the procedures operated under the Hope Hanlan procedures were on 20th November, 2000 replaced by the statutory mechanisms and procedures by virtue of the transitional provisions of sections 28 of the Refugee Act and sections 16 and 17 of the Act governed the appeal. Counsel for the Respondent informed the Court that the appeal hearing took place on 8th April, 2001 and the decision by way of recommendation of the Refugee Appeal’s Tribunal is dated 21st May, 2001. It is adverse to the Applicant. The Tribunal is an independent body, independent of the Respondent, and it communicated its decision by letter dated 30th May, 2001. The Tribunal is not a party to these proceedings.

7. By letter dated 7th June, 2001 the Respondent informed the Applicant that he had decided to refuse him refugee status and to give him a declaration as a refugee and that as a result the Minister proposed to make a deportation order. The alternatives open to the Applicant were indicated, including the entitlement to apply under section 3 of the Illegal Immigrants Act, 1999 for leave to remain in the State on humanitarian grounds. The Applicant lodged papers for leave to apply for judicial review on 22nd June, 2001 and it appears also lodged a section 3 application, and this last matter is specifically referred to in the Affidavit of Linda Greely at paragraph 10. The return date on the Notice of Motion is 2nd July, 2001, the matter was adjourned and the replying Affidavit was sworn on 3rd October, 2001 and filed on the 9th October, 2001. The Court note next to the judgment deals with the hearing and is segregated, as it would be an unnecessary digression to the main narrative. Suffice to note that the matter being listed on 19th December, 2001 (because of the volume of cases, it was not possible to secure an earlier listing) for hearing on Thursday 10th January, 2002 reference was made at that time to seeking voluntary discovery. It appears that a letter dated 20th December, 2001 was sent by the Applicant’s Solicitor and received on 30th December, 2001 by the Respondents in the person of the Chief State Solicitor’s Office seeking certain documents which were furnished by the Respondent under cover of a letter dated 9th January, 2002. I am satisfied and find as a fact that other than documents 1 and 6 which are mere guidelines which whether observed or not cannot avail an impugned decision challenged in time if it is not a decision that can withstand judicial review. All other furnished documents were either in the public domain or in the power or possession of the Applicant.

8. The relief of certiorari sought against the Respondent is to quash his decision not to declare the Applicant a refugee. The decision of the Respondent in this regard is at first instance of 5th January, 2000 and even under order 84 of the rules of the Superior Courts was not challenged for over 18 months (on 22nd June, 2001). No application was sought in the documentation or made on the hearing for an extension of time nor is any sought on the proceedings or reasons advanced for same. If the decision by way of recommendation of the Refugee Appeals Tribunal is in issue, the Refugee Appeals Tribunal is not a party to or a Respondent to the proceedings and no application was made in that regard. These difficulties in a normally conducted case will create serious problems for an Applicant - however, ever mindful of the paramountcy of justice I consider and considered that it would be wrong to leave the substantive issues unresolved in the light of R -v- the Secretary of State for the Home Department ex parte Ruddock [1987] 1WLR 1481 and R -v- Secretary of State for Foreign and Common Wealth Affairs , ex parte World Development Movement Limited [1995] 1WLR 286 at 402 (H).

9. The declaratory relief which is referable to section 5 of the Refugee Act, 1996 is a premature invocation. The matter is adequately and properly responded to in paragraph 10 of Ms. Greely’s Affidavit.

10. The statement grounding the application for judicial review, in respect of paragraphs b, c, and e sets out no grounds, these are mere assertions. Furthermore the grounds and reasons set out in the Statement of Grounds have not been dealt with in the grounding Affidavit.

11. The first ground upon which relief is sought is:-

12. B. The recommendation that the Applicant’s appeal be refused fails to satisfy the degree of probability required to be satisfied as to the facts justifying that refusal. Exhibit “CAT 7” betokens a proper consideration and appreciation of the requirements of the Refugee Acts and the Appeals Tribunal reference to R -v- Secretary of State for the Home Department ex p Sivakumaran (UN High Commissioner for Refugees intervening [1988] 2ALL E.R. 193; [1988] A.C. 953 was more recently considered in Karanakaran -v- Secretary of State for the Home Department [2000] 3 ALL E R 449 at 457 (published 19th July, 2000) and is evidence of an admirable concern in the Tribunal to keep itself informed.

13. C. The Applicant is a refugee within the meaning of section 2 of the Refugee Act, 1996 and the 1951 convention relating to the status of refugees as amended by the 1967 protocol. No grounds are advanced for this bald assertion. The evidence does not establish any act or default in procedure followed or legal basis for Court intervention.

14. D. The decision to declare that the Applicant is not a refugee is -

15. E. The first named Respondent proposes to expel the Applicant from the State in contravention of section 5(2) of the Refugee Act, 1996. This assertion is unsubstantiated and it did not take the averment of paragraph 10 of the Affidavit of Ms. Greely to state and assert the legal position in this regard before any proceedings issued.