Anisimova v Minister for Justice

• Jurisdiction: Ireland
• Judgment Date: 01 January 1998
• Date: 01 January 1998
• Docket Number: [1996 No. 104 J.R.; S.C. No. 109 of 1997]
• Court: Supreme Court

High Court

Supreme Court

[1996 No. 104 J.R.; S.C. No. 109 of 1997]

Anisimova v. Minister for Justice

Olga Anisimova

Applicant

and

The Minister for Justice

Respondent

Cases mentioned in this report:-

Fakih v. Minister for Justice [1993] 2 I.R. 406; [1993] I.L.R.M. 274.

Gutrani v. Minister for Justice [1993] 2 I.R. 427.

Latchford and Sons Ltd. v. Minister for Industry and Commerce [1950] I.R. 33.

Aliens - Refugee status - Refusal to entertain application for refugee status - "First safe country" principle - Informal adoption of international procedures - United Nations Convent ion Relation to the Status of Refugees, 1951 - Protocol Relating to the Status of Refugees, 1967.

Judicial review - Fair procedures - Application for refugee status - Procedures adopted by respondent - Whether respondent conducted adequate and appropriate inquiry - Nature of relevant inquiry - United Nations Convention Relating to the Status of Refugees, 1951 - Protocol Relating to the Status of Refugees, 1967.

Judicial review.

The facts have been summarised in the headnote and are set out in the judgment of Morris J., infra.

On the 25th March, 1996, the High Court (McCracken J.) granted leave to the applicant to apply for judicial review. By notice of motion dated the 29th March, 1996, the said application was made. The matter was heard by the High Court (Morris J.) on the 12th February, 1997.

By notice of appeal dated the 21st March, 1997, the applicant appealed against the judgment and order of the High Court. The appeal was heard by the Supreme Court (Hamilton C.J., Murphy and Lynch JJ.) on the 4th November, 1997.

Under the United Nations Convention Relating to the Status of Refugees, 1951, as amended by the Protocol Relating to the Status of Refugees, 1967, an applicant seeking refugee status in one country who had previously been in a"host third country" should be sent back to that host third country to have his application determined there. This was known as the "first safe country" principle.

The respondent had informally adopted Convention procedures by letter to the representative for the United Nations High Commissioner for Refugees dated the 13th December, 1985 ("the von Arnim letter"). The applicant was a native of Moldova who had intended to seek refugee status in Ireland. She obtained a visa for entry into the United Kingdom. Upon arrival in the United Kingdom, she immediately proceeded to Holyhead and travelled on to Ireland where she lodged an application for asylum with the relevant authorities.

The respondent refused to entertain her application on the basis that the United Kingdom was her first safe country and therefore the appropriate jurisdiction in which to make her application. In accordance with the procedures under the Convention, a representative of the respondent had obtained a commitment from the United Kingdom authorities that they would entertain the applicant's application, as well as the approval of the United Nations High Commissioner for Refugees for the refusal by the Irish authorities to process the application.

The applicant brought judicial review proceedings to quash this decision. It was contended on her behalf that the relevant procedures adopted in the von Arnim letter should have been applied to a consideration of the preliminary issue of whether her application should be processed in Ireland or the United Kingdom.

Held by Morris J., in refusing the application, that the respondent was correct to preclude herself from examining the applicant's application for asylum once it had been established that there was a host third country that was prepared to deal with the application and that the necessary approval of the High Commissioner for Refugees had been obtained. In this context the wishes of the applicant to have her application dealt with in this jurisdiction were irrelevant.

Fakih v. Minister for Justice [1993] 2 I.R. 406applied.

The applicant appealed to the Supreme Court.

Held by the Supreme Court (Hamilton C.J., Murphy and Lynch JJ.) in dismissing the appeal, 1, that the issue to be decided by the respondent in the instant case was not whether the applicant was a refugee but whether there was a host third country which should more properly have seisin of her application for asylum.

2. That for the purposes of dealing with this preliminary issue the respondent had conducted a fair and adequate investigation into the applicant's situation.

Per curiam: That although a tribunal's procedures may not be perfect, the requirements of natural justice were to be measured by reference to substance and reality rather than technicalities and ingenious argument.

Cur. adv. vult.

Morris J. 18th February, 1997

This matter comes before the court by way of an application for judicial review. The applicant seeks:-

• (a) An order of mandamus directing the respondent to consider the application of the applicant for refugee status as defined in accordance with the United Nations Convention Relating to the Status of Refugees, 1951, as amended by the Protocol relating to the Status of Refugees of 1967.

• (b) A declaration that the applicant is entitled to have her application for refugee status determined in accordance with the agreement on procedures agreed between the respondent and the United Nation High Commissioner for Refugees (the U.N.H.C.R.) as set out in a letter dated the 13th December, 1985, from Cathal Crowley, Assistant Secretary of the Department of Justice to Mr. von Arnim, United Nations High Commissioner for Refugees representative.

• (c) An injunction restraining the respondent from making a deportation order or from removing the applicant from the jurisdiction until her application has been considered in accordance with the agreed procedures.

The facts of the case are as follows. The applicant is a Russian national from Moldova. She arrived in Ireland from the United Kingdom on the 22nd February, 1996. When she left Moldova, it was her intention at all times to come straight to Ireland but she was only able to obtain an entry visa for the United Kingdom. On arrival at Heathrow Airport, London, she immediately proceeded by way of public transport to the ferry terminal at Holyhead where she took a ferry to Dublin. She spent less than 24 hours on United Kingdom soil while she was in transit to Ireland. On arrival in Dublin she made contact with the Irish Refugee Council and she and her daughter were placed in a bed and breakfast accommodation in Dublin and remained there from her arrival on the 22nd February, 1996, to the 13th March, 1996, when she was transferred to accommodation at Bow Lane West, Dublin 8.

On the 27th February, 1996, she attended at the offices of the Department of Justice and made application for political asylum. As she had not got her passport with her on that date she returned on the 28th February, 1996, with her passport. Mr. Barry O'Hara, a civil servant in the Department of Justice arranged for contact to be made with the United Kingdom immigration authorities and received an undertaking from the United Kingdom authorities to accept the applicant back and to deal with an asylum application should one be made. He also arranged that the United Nations High Commissioner for Refugees was also contacted for their agreement to the refusal by the Irish authorities to accept the applicant's application for asylum and they received approval from the United Nations High Commissioner for Refugees.

An examination of the applicant's passport reveals that she was in possession of a single entry student visa for the United Kingdom which had been granted at the British Embassy in Kiev and that she had arrived in London on the 21st February, 1996. The passport was endorsed with leave to enter the United Kingdom for six months provided that the passport holder did not enter employment or engage in any business or profession. Mr. O'Hara contacted Mr. Ingoldsby of the Department of Justice who is the officer with overall responsibility for the immigration and citizenship division and, having considered the matter, letters were prepared and handed to the applicant and their contents explained to her. These letters indicated to the applicant that her application for asylum would not be processed in this State as she had entered on a visa from the United Kingdom, a signatory State to the Convention relating to the Status of Refugees, 1951, as amended by the New York Protocol relating to the Status of Refugees, 1967 and informing her that the United Kingdom authorities were willing to accept her back to examine her claim for asylum. This decision was based upon the fact that the United Kingdom was considered...