Dascalu v Min for Justice Equaltiy & Law Reform

• Jurisdiction: Ireland
• Judge: O'Sullivan J.
• Judgment Date: 04 November 1999
• Neutral Citation: [1999] IEHC 38
• Court: High Court
• Docket Number: No. 266 JR/1998
• Date: 04 November 1999

[1999] IEHC 38

THE HIGH COURT

No. 266 JR/1998

DASCALU v. MIN FOR JUSTICE EQUALTIY & LAW REFORM

JUDICIAL REVIEW

BETWEEN

CONSTANTIN DASCALU

APPLICANT

AND

THE MINISTER FOR JUSTICE EQUALITY AND LAWREFORM

RESPONDENT

Citations:

VON ARNIM PROCEDURE

UNITED NATIONS CONVENTION ON THE STATUS OF REFUGEES & STATELESS PERSONS 1951

PROTOCOL ON THE STATUS OF REFUGEES 1967

HOPE HANLAN LETTER (PROCEDURES)

FAKIH V MIN FOR JUSTICE 1993 2 IR 406

WEBB V IRELAND 1988 IR 353

GUTRANI V MIN FOR JUSTICE 1993 2 IR 427

ANISIMOVA V MIN FOR JUSTICE 1998 1 IR 186

HOGAN & MORGAN ADMINISTRATIVE LAW IN IRELAND

Synopsis

Refugees

Refugees; judicial review; procedural justice; applicant had applied for asylum in Ireland; applicant's claim had initially been processed in accordance with a certain procedure; a new procedure had been introduced with the possiblity of an accelerated procedure for manifestly unfounded cases; applicant subsequently informed by the respondent that his application had been refused as mainfestly unfounded; applicant seeking judicial review of the decision of the respondent; whether the respondent was entitled to determine the applicant's claim under the new accelerated procedures; whether fair procedures required the respondent to notify the applicant individually that his application was going to be dealt with under new procedures; whether such notice as the respondent claims to have given was sufficient; whether the applicant is entitled to have his application be determined in accordance with the old procedures.

Held: Order of mandamus refused; respondent was entitled to change the procedure in regard to applications which had already been submitted; applicant was entitled to be told that the procedures under which his application was being considered had been altered; the applicant received insufficient notice; order of certiorari granted; applicant not entitled to have his application determined in accordance with the old procedures.

Dascalu v. Minister for Justice, Equality and Law Reform - High Court: O'Sullivan J. - 04/11/1999

A change in procedures for dealing with applications for refugee status could apply to applications which were already on hand. However, the Minister was obliged to inform applicants of the change in procedures and failure to do so would be in breach of the principles of constitutional and natural justice. The High Court so held in quashing the decision to refuse the applicant refugee status.

1 O'Sullivan J.delivered the 4th day of November 1999.

Introduction

2 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) manifestlyunfounded" and was accordingly refused. He challenges this decision in these proceedings.

Facts

3 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 Romanian, 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.

4 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 UNIICR, R. von Arnim, setting out an agreed procedure for the determination of refugee status in Ireland.

5 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 onit."

6 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.

7 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.

8 The first thing the Applicant said at that interview was "Ihave 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 UNIICR himself if he so wished.

9 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 is fully. He said yes. I asked if he had anything to add. He said no, he had nothing to add."

10 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, Mr McDonagh 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 his 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."

11 It is noteworthy, however, that in his Affidavit the Applicant does not elaborate on what these reasons for his genuine fear are.

12 I accept that I am not entitled to have regard to hearsay evidence and am bound by the "best evidence" rule.

13 It is also noteworthy that at the time that this interview was conducted the von Arnim procedure applied.

14 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 theincluded:-

15 a "14.(a) That the application does not show on its face any grounds for the contention that the Applicant is arefugee.

16 (e) The Applicant, without reasonable cause, made deliberately false or misleading representatives of a material or substantial nature in relation to the application, (and)

17 (g) The Applicant deliberately failed to reveal that he or she had lodged a prior application for asylum in anothercountry".

18 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 manifestlyunfounded.

19 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.

20 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...