IU v Minister for Justice

• Jurisdiction: Ireland
• Judgment Date: 28 February 2002
• Date: 28 February 2002
• Docket Number: [S.C. No. 293 of 2001]
• Court: Supreme Court

I.U. v. Minister for Justice

I.U.

Applicant

and

Minister for Justice, Equality and Law Reform

Respondent

[S.C. No. 293 of 2001]

Supreme Court

Aliens - Statutory interpretation - Transitional arrangements - Refugee status - Administrative scheme - Step - Whether step taken under ministerial scheme was equivalent to step made pursuant to legislation - Refugee Act, 1996 (No. 17), ss. 13 and 28 - Refugee Act, 1996 (Section 24(1)) (Commencement) Order, 1996 (S.I. No. 290) - Refugee Act, 1996 (Sections 1, 2, 5, 22 and 25) (Commencement) Order, 1997 (S.I No. 359) - United Nations Convention on the Status of Refugees, 1951.

Words and phrases - "Step" - Refugee Act, 1996 (No. 17), s. 28.

Section 28 of the Refugee Act, 1996 provides:-

"Where, before the commencement of this section, a person had made an application to the Minister for asylum but a decision in relation thereto had not been made by the Minister then, the application should be deemed to be an application under section 8 and should be dealt with accordingly; any step taken by the Minister before such commencement in relation to the application (being a step required to be taken under this Act in relation to an application under this Act) shall be deemed to have been taken under this Act."

The respondent appealed against the order of the High Court (Finnegan J.) that the decision taken by the respondent, to refuse the applicant's application for asylum, did not have the equivalent effect to a recommendation of the Refugee Applications Commissioner made under the Refugee Act, 1996. Prior to the commencement of the Refugee Act, 1996, an administrative scheme for the processing of asylum claims in Ireland, called the Hope Hanlan procedure, had operated for the determination of refugee status of applicants. Pursuant to the administrative scheme, the applicant was interviewed, assessed and ultimately a negative decision was made regarding his refugee status. The applicant was subsequently informed by correspondence that that determination was deemed to be a step under the Refugee Act, 1996. The applicant sought and was granted leave to seek judicial review of this decision and the High Court determined the application in the applicant's favour. The respondent appealed to the Supreme Court.

Held by the Supreme Court (Keane C.J., Denham, Murphy, Murray and McGuinness JJ.), in allowing the appeal, 1, that the word"step" as used in s. 28 of the Refugee Act, 1996, envisaged a stage in the procedure by which a significant and discernible movement was taken towards the determination of the status of the applicant.

2. That the interview of the applicant, the assessment of his account and the subsequent operative decision constituted such a "step" and was properly deemed to have been taken under the Act of 1996.

3. That, in order to avoid the mischief of duplication which s. 28 of the Act of 1996 was enacted to prevent, a negative decision taken by an authorised officer of the respondent was a step in the asylum seeking process which was equivalent to and was equated with a decision, in the form of a recommendation, of the commissioner pursuant to s. 13 of the Act.

Case mentioned in this report:-

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

Appeal from the High Court.

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

The High Court (Finnegan J.) heard the application for leave to apply for judicial review and determined the application in the applicants favour by order dated the 3rd July, 2001. By notice of appeal dated the 7th November, 2001, the respondent appealed to the Supreme Court.

The appeal was heard by the Supreme Court (Keane C.J., Denham, Murphy, Murray and McGuinness JJ.) on the 2nd February, 2002.

Cur. adv. vult.

Keane C.J. 28th February, 2002

I have read the judgment about to be delivered by Murphy J. and I agree with same.

Denham J.

I also agree with Murphy J.

Murphy J.

These proceedings are concerned with the interpretation of s. 28 of the Refugee Act, 1996, and the application of that section to the particular facts of this case.

Ireland is a signatory to the United Nations Convention on the Status of Refugees and Stateless Persons 1951 and the Protocol of 1967 thereto. The Convention of 1951 (the "Geneva Convention") related primarily to the treatment of the countless thousands of persons who had been displaced as a result of the Second World War and the horrific events to which it gave rise. In addition to prescribing the treatment to be accorded by contracting states to persons who were, within the meaning of the Geneva Convention, refugees, the Convention expressly provided that no contracting state should expel or return a refugee in any manner whatsoever to the frontiers of territories where his life or freedom would be threatened on account of his race, religion, nationality, membership of a particular social group or political opinion.

For various political and economic reasons few, refugees were resident in Ireland at the time when the Geneva Convention was made and the number of aliens who sought permission to reside in the State in the decades immediately following the making of that Convention was insignificant. The United Nations, through their High Commissioner for Refugees (U.N.H.C.R.), did seek to establish arrangements in relation to the admission of refugees into the State. These negotiations culminated in a letter dated the 13th December, 1985, from Mr. Cathal Crowley, Assistant Secretary to the Department of Justice, to Mr. R. Von Arnim, U.N.H.C.R. representative in...