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You are here: BAILII >> Databases >> High Court of Ireland Decisions >> Dascalu v. Minister for Justice Equality and Law Reform [1999] IEHC 38 (4th November, 1999) URL: http://www.bailii.org/ie/cases/IEHC/1999/38.html Cite as: [1999] IEHC 38 |
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Introduction
1. The Applicant is a single 26 year old Romanian Catholic metal worker now living in Cork. In January 1996 he arrived in this country from the United Kingdom and applied for asylum. By letter of the 19th June, 1998 he was informed on behalf of the Minister that his "Application for refugee status (was) manifestly unfounded" and was accordingly refused. He challenges this decision in these proceedings.
Facts
2. In his application for asylum dated the 22nd January, 1996 the Applicant made the case that he had participated in an anti-Communist and pro-Monarchy demonstration in Romania, incurred the wrath of the police authorities, was subsequently constantly followed, summoned to the police station, asked all sorts of questions, told he was not allowed to leave town without letting them know first and forced to sign papers without knowing their contents. He decided to leave because he could not stand living like that any more.
3. This application was required to be processed in accordance with what is known as the von Arnim procedure, which takes its name from a letter written in December, 1985 on behalf of the Respondent to the then representative of the UNHCR, R. von Arnim, setting out an agreed procedure for the determination of refugee status in Ireland.
4. This letter included the following:-
"4. Such an individual will not be refused entry or removed until he has been given an opportunity to present his case fully, his application has been properly examined, and a decision reached on it."
5. The context in which that letter was written is that Ireland is a signatory to the United Nations Convention relating to the Status of Refugees 1951 as amended by the Protocol Relating to the Status of Refugees 1967. It is common case that these instruments do not form part of Irish domestic law.
6. On the 29th April, 1997, that is some fifteen months after the Applicant applied for asylum, he was interviewed on behalf of the Minister by Miss Breda Walshe with an interpreter present.
7. The first thing the Applicant said at that interview was "I have told lies. What is written here (pointing to the questionnaire), is not the truth". He was advised he had a right of appeal to an appeals authority if his application was refused, that he had a right to legal representation and to contact the UNHCR himself if he so wished.
8. At the interview he said he had left Romania in 1995 for Warsaw having received a call for military service shortly beforehand. From Warsaw he went to Britain on a truck having travelled through Germany, and arrived somewhere close to London. He met some Romanians in London from whom he gathered that he had no chance of getting asylumin that country and that he might be deported. Accordingly, he made the journey to Dublin where he applied for asylum in this country. He admitted that his replies in his application questionnaire were untrue and said that the only reason he did not want to stay in Romania was because he did not want to do his military service. At the end of the report of the interview it is recorded that
"I asked if he was happy with the interpreter. He said yes. I asked if he was satisfied that he had had an opportunity to explain his case and present it fully. He said yes. I asked if he had anything to add. He said no, he had nothing to add."
9. I emphasise this last portion of the report because in these proceedings the Applicant has challenged this record on the basis that it contains no note of conversations which he says took place between the interviewer and Miss Walshe and which the Applicant did not understand. His Counsel, MrMcDonagh S.C., submits that as there is no Affidavit from Miss Walshe in these proceedings and no challenge to this allegation, I am bound under the rules of evidence to accept the Applicant's evidence on this aspect. In his Affidavit he says:-
"During the course of this interview the interpreter had regular conversations with Miss Walshe in English to which I was not party. I did not understand what was being said but it was clear that these were in the nature of conversations between themselves. I say that the note of this interview does not give a fair reflection of what was said. It does not show the reasons and my genuine fear that I tried to put across regarding my fear of army service."
10. It is noteworthy, however, that in his Affidavit the Applicant does not elaborate on what these reasons for his genuine fear are.
11. I accept that I am not entitled to have regard to hearsay evidence and am bound by the "best evidence" rule.
12. It is also noteworthy that at the time that this interview was conducted the von Arnim procedure applied.
13. On the 10th December, 1997 that procedure changed. The Minister's representative wrote to Miss Hope Hanlon the then representative of the UNHCR outlining a new procedure which introduced for the first time the possibility of an accelerated procedure for "manifestly unfound cases". This authorised "... a person duly authorised by the Minister (to) decide to terminate further examination of the case on the grounds that it is manifestly unfounded and to refuse the application for refugee status accordingly." Several grounds authorising this accelerated procedure were set out and they included:-
"14. (a) That the application does not show on its face any grounds for the contention that the Applicant is a refugee.
(e) The Applicant, without reasonable cause, made deliberately false or misleading representations of a material or substantial nature in relation to the application, (and)
(g) The Applicant deliberately failed to reveal that he or she had lodged a prior application for asylum in another country".
14. This new procedure has become known as the Hope Hanlon procedure and it was revised in March of 1998 by providing for an appeal to an independent authority from a decision that an application is manifestly unfounded.
15. These new arrangements were circulated to all members of the Oireachtas and copies were sent to the Irish Refugee Council and to the Association of Refugees and Asylum Seekers in Ireland. A press statement was made by the Minister's department.
16. The decision challenged in these proceedings notified by letter of the 19th June, 1998 was preceded by correspondence from the Minister's department which commenced with a letter of 5th May, 1998 informing the Applicant that his application was refused as manifestly unfounded. The grounds for this determination were that his application did not show on its face any grounds for the contention that he was a refugee as his reason for leaving his country did not relate to his persecution and there was no evidence of persecution; secondly, he had made deliberately false or misleading representations in relation to his application and had given no reason for not being truthful in that application; and thirdly that he had failed to reveal that he had lodged a prior application for asylum in another country namely England on the 11th November, 1995. He was informed that he could appeal this decision or otherwise arrange to depart from the State.
17. The Applicant now engaged a Solicitor who wrote on the 8th May formally appealing and requesting copies of the papers. By letter of the 29th May his Solicitor was sent a copy of the Hope Hanlon procedures, but not apparently any other papers. He was advised as to the appeal procedure. By letter of the 9th June his Solicitor replied complaining about the procedures and referring to the fact that the interpreter and the Respondent's official had long conversations in English at the interview to which his client was not a party. He also alleged that the Applicant had a well founded fear of being persecuted if he returns to Romania and enclosed a letter from the Romanian army ordering him to report to army base on his return. He also referred to the Applicant's affiliation to the monarchist party in Romania, and sought an oral hearing of the appeal "without prejudice to our right to seek a judicial review". A further letter from the Minister's agent informed the Applicant's Solicitor that this correspondence would be sent to the appeals authority.
18. There was no oral hearing and on the 12th June, 1998 the appeals authority (Mr Justice Peter O'Malley) recommended disallowing the appeal as he was of opinion that no reason had been advanced to justify the Applicant being accorded refugee status, as the only reason for his departure from Romania was to avoid military service and he took this view apart from the fact that the Applicant had applied for refugee status in England and had not pursued his claim there. Following this recommendation the Minister's agent wrote to the Applicant on the 19th June, 1998 refusing asylum and upholding the original decision. This refusal is now challenged in these proceedings.
The Submissions
19. Mr McDonagh, S.C. for the Applicant submits that it was not open to the Respondent to change from the von Arnim to the Hope Hanlon procedure once he had commenced processing the Applicant's claim; he further submits that the Respondent failed to observe the principles of natural and constitutional justice in a number of aspects specified in the Statement grounding this application and thirdly submits that his client had a legitimate expectation that his application would be considered in accordance with thevon Arnim procedure.
20. Mr Butler S.C. for the Respondent submits that it is perfectly open to the Respondent to change the procedures in light of objective altered circumstances and that once these procedures have been changed the Respondent is obliged to determine applications in accordance with the new procedures. He also submitted that there was no obligation on the Respondent to notify the Applicant of the new procedures but that if there was, theRespondent gave sufficient notice by the consultation, publication and circulation procedures already described.
The Law
21. It is clear that the Respondent is bound by procedures which have been agreed with the Irish representative of the UNHCR. I would consider, further, that he is bound by procedures which have been notified to such representative in the absence of disagreement.
22. The precise legal basis for imposing such an obligation has not yet been settled. O'Hanlon J. in Fakih & Ors -v- Minister for Justice (1993: 2: IR: 406) considered that an Applicant had a legitimate expectation that the promulgated procedures would be applied; Finlay C.J. in Webb -v- Ireland (1988: IR: 353) preferred to rely in a somewhat comparable case on the equitable concept of promissory estoppel, whilst McCarthy J. in Gutrani -v- The Minister for Justice (1993: 2: IR: 427), a case similar to the present one, eschewed reliance on the doctrine of legitimate expectation and preferred simply to hold the Minister to his undertaking. In Anisimova -v- Minister for Justice (1998: 1: IR: 186) Murphy J. referred to the different views of O'Hanlon and McCarthy JJ. and found it unnecessary to resolve any difference which may exist between such views given that the Respondent in that case accepted that she was bound by the von Arnim procedures. The authors of the third edition of "Administrative Law in Ireland" politely refer to this state of affairs as the law being in a process of development, which I suppose it is.
23. It seems axiomatic that whatever procedure is engaged in by the Respondent, it must be subject to the principles of basic fairness and procedural justice.
The Issues
24. In light of the foregoing I must determine whether the Respondent was entitled to determine the Applicant's claim under the Hope Hanlon procedures and if so whether he was obliged to give notice to the Applicant of the change in the procedures applicable and if so, whether such notice as he claims to have given was sufficient.
25. To the first of these questions I would answer that the Minister is entitled to change the procedures. There is no real dispute that the procedures may be changed in light of changing circumstances and I have no hesitation in saying that in this case the vast increase in the numbers seeking asylum in this country objectively justify a change in the procedures. Furthermore, the originalvon Arnim letter specified that
"When the arrangements have been in practice for some time the procedure can be reviewed in the light of the experience gained."
26. In the present case there is evidence that the new procedures were the subject of consultation not only with the UNHCR representative but with the bodies representing the refugees and while there is not explicit agreement to the Hope Hanlon procedure (there was explicit agreement in relation to thevon Arnim procedure) there was no disagreement and I consider that the Hope Hanlon procedure represents a justified and properly implemented change in the procedures which are, in an appropriate case, binding on the Respondent.
27. I note that the Hope Hanlon procedure expresses itself to come into effect from the 10th December, 1997 and that it "will apply to all applications on hand at that date or made on or after that date". Mr Butler S.C. submits that that includes the present application, but Mr McDonagh S.C. says that it should only apply to applications made on or after the 10th December, 1997. It seems to me that an application is "on hand" if it has been made but has not yet been finally dealt with; otherwise I do not see what the phrase adds to the text of the letter. That being the case I consider that the Hope Hanlon procedures are expressed to apply to the determination of the present application.
28. Did the Respondent have power to make these changes? In my view he had. At paragraph 9 of the Affidavit filed on behalf of the Respondent the following averment is made.
"The Hope Hanlon procedures were adopted further to the conclusion being reached on the part of the UNHCR and the Minister that the von Arnim procedures, involving formal consultation with the UNHCR in most cases were no longer workable due to the increase in the number of persons applying for refugee status. A new approach was necessary to deal with the several thousand files then on hand. Extensive consultations with the UNHCR representative for Ireland, Ms Hope Hanlon, resulted in a new arrangement being put in place establishing a procedure to deal with the application for asylum. Thevon Arnim procedures were therefore superseded by the Hope Hanlon procedures and set out in a letter addressed to Ms Hope Hanlon, UNHCR Representative in London on behalf of the Minister. ... I beg to refer to paragraphs 12 to 14 inclusive of the said procedures which set out the accelerated procedure to be followed in manifestly unfounded cases."
29. The Respondent was clearly faced with a major problem due to the vast increase in the number of asylum seekers and was entitled to adopt procedures which would "fastrack" manifestly unfounded applications not only in the interests of administrative convenience, but also in the interests of dealing reasonably promptly with genuine applications. In principle, therefore, I consider that the Minister was entitled to change theprocedure and was entitled to do so in regard to applications which had already been submitted under the von Arnim regime.
30. Was the Applicant entitled to be told, prior to determination of his application, that the procedures under which that application was being considered had now been altered? I consider he was. It may be argued that the Applicant did not or may not have been aware of the precise procedures set out in thevon Arnim letter or in the Hope Hanlon letters. I do not think the obligation upon the Respondent to give notice rests specifically on the state of mind of the Applicant. It rests, in my view, on the obligation upon the Respondent to carry out the procedure which he has undertaken to enforce in accordance with the basic principles of fairness and procedural justice.
31. In the particular circumstances of the present case, it is noteworthy that one of the reasons given by the Respondent for refusing refugee status to the Applicant was that he had made deliberately false or misleading representations without giving any reason for not being truthful in his asylum application. At the interview the Applicant volunteered that he had told lies but was not, apparently, questioned as to whether he had any reason for not being truthful. Under the then applicable procedure, namely thevon Arnim procedure, he was entitled to have his application dealt with fully and properly examined before being refused entry. The Minister had undertaken to conduct a procedure which at the relevant time did not include the possibility of a "fastrack" approach based on the concept of a manifestly unfounded application.
32. The introduction of such an approach was a radical alteration in the procedures and one of which in my view the Applicant was entitled to notice before final determination of his application. The Hope Hanlon procedures contemplate the possibility that an Applicant who makes deliberately false or misleading representations might have a reasonable cause for so doing. In fairness to such Applicant he should at least be given theopportunity of explaining whether such a reasonable cause existed - particularly where the misleading information becomes a ground for determining that his application is manifestly unfounded and bringing the procedure for considering it to a halt and refusing him refugee status.
33. Mr Butler S.C. submits, however, that the Applicant received sufficient notice of the change in procedures by reason of the publication (press release) and circulation (to all members of the Oireachtas and the refugee organisations) which actually occurred. I cannot agree with him on this. In the circumstances of this case which include the specific reliance on misleading information I consider that fair procedures required that the Minister notify the Applicant individually that his application was now being dealt with under new procedures which include the possibility of determining that it was manifestly unfounded and refusing him refugee status without further consideration. It may be urged that in the context of the appeal correspondence the Applicant's Solicitor who was furnished with the Hope Hanlon procedure document was indeed on notice prior to the determination in this case and that notwithstanding this he engaged in the appeal process and that the Applicant is accordingly now estopped from alleging that the procedure was invalid.
34. With some hesitation I consider that the Applicant's involvement in the appeal procedure through his Solicitor was not sufficient to cure the Minister's want of fair procedures. In my view any waiver of the Applicant's rights in this case, namely his rights to have proper notice of the changed procedures must have been clearly and unambiguously waived before they could be regarded as abandoned. On the contrary, however, the Applicant's Solicitor engaged in the appeal procedure "without prejudice to our right to seek a judicial review" and this basis was not challenged and could not, I consider, be regarded as an unambiguous acquiescence in the legitimacy of those procedures themselves.
35. In the circumstances of this case, therefore, I hold that the Minister was at fault in not notifying the Applicant individually that the von Arnim procedure had now been replaced by the Hope Hanlon procedure which included the possibility of a preliminary finding that his application was manifestly unfounded resulting in a refusal, without more, of his application. On being so notified the Applicant would have been entitled, in my opinion, to have an opportunity to make a further submission and/or to consult a lawyer. He would not, however, have been entitled to insist that his application be determined under thevon Arnim procedures.
36. In the result I am prepared to make an Order of Certiorari quashing the Respondent's decision communicated by letter of the 19th June, 1998 refusing the Applicant's application for refugee status. I am not prepared, however, to grant the Applicant a declaration that he is entitled to have his application determined in accordance with the procedures set out in a letter of the 13th December, 1985 (the von Arnim procedure) nor do I think it is necessary to grant the Order of Mandamus sought.
37. In conclusion I would note that a number of other legal points were canvassed by Mr McDonagh S.C. in the course of his submissions to me but as these were not covered by the Order granting his client leave to apply for judicial review I decline to consider them.
tcjoscd