Stefan v Minister for Justice

• Jurisdiction: Ireland
• Judge: Hon. Mrs. Justice Susan Denham
• Judgment Date: 13 November 2001
• Neutral Citation: [2001] IESC 92
• Court: Supreme Court
• Docket Number: [S.C. No. 198 of 2000],Record No. 198/00
• Date: 13 November 2001

STEFAN v. MIN FOR JUSTICE & REFUGEE APPEALS AUTHORITY

BETWEEN/

PETREA STEFAN

APPLICANT

AND

THE MINISTER FOR JUSTICE AND LAW REFORM ,THE REFUGEE APPEALS AUTHORITY, IRELAND, THE ATTORNEY GENERAL

RESPONDENTS/APPELLANTS

[2001] IESC 92

Denham J.

McGuinness J.

Hardiman J.

Record No. 198/00

THE SUPREME COURT

Synopsis:

IMMIGRATION

Asylum

Certiorari - Refugee and asylum law - Hope Hanlan procedure - Fair procedures - Incomplete translation of applicant's answers - Whether determination of application for refugee status two-tier process - Whether existence of alternative remedy precluded issuing order of certiorari (198/2000 - Supreme Court - 13/11/01)

Stefan v Minister for Justice, Equality and Law Reform - [2001] 4 IR 203 - [2002] 2 ILRM 134

Facts: The applicant had applied for and had been refused refugee status. The applicant initiated judicial review proceedings challenging the decision on the grounds that all the relevant material had not been before the person making the decision. Mr. Justice Kelly in the High Court granted an order of certiorari quashing the decision on the basis that a full and proper hearing had not taken place. The respondents appealed against the decision on the basis that the applicant's complaint was met by the appeal procedure as provided under the Hope Hanlan procedure in that the procedure was a single undivided process. It was also argued that an order of certiorari could not be availed of in the light of the existence of an appeal to the Refugee Appeal Authority ("the Authority").

Held by Mrs. Justice Denham in dismissing the appeal (McGuinness J and Hardiman J agreeing) and affirming the order of the High Court. The procedure under the Hope Hanlan procedure involved two separate distinct decisions. The decision refusing the applicant refugee status was a final decision subject to the applicant's right of appeal. Certiorari can be granted where the decision maker acted in breach of fair procedures. Once it was determined that an order of certiorari could be granted the court retained a discretion in all the circumstances of the case as to whether an order of certiorari should issue. In this case the decision was a decision made in breach of fair procedures in that evidence was not before the decision maker. Consequently an order of certiorari might lie. It was for the High Court to exercise its discretion and determine whether the order of certiorari would be appropriate. The applicant was entitled to a primary decision made in accordance with fair procedures and an appeal from that decision. A fair appeal did not cure an unfair hearing. The appeal should be dismissed.

Citations:

UNITED NATIONS CONVENTION ON THE STATUS OF REFUGEES 1951 ART 1A

PROTOCOL ON THE STATUS OF REFUGEES 1967

REFUGEE ACT 1996 S2

ABENGLEN PROPERTIES LTD, STATE V DUBLIN CORPORATION 1984 IR 381

GLOVER, STATE V MCCARTHY 1981 ILRM 46

NOVA COLOUR GRAPHIC SUPPLIES V EMPLOYMENT APPEALS TRIBUNAL 1987 IR 426

MEMOREX V EMPLOYMENT APPEALS TRIBUNAL 1992 IR 184

MCGOLDRICK V AN BORD PLEANALA 1997 1 IR 497

P & F SHARPE V DUBLIN CITY & COUNTY MANAGER 1989 IR 701

MYTHEN V EMPLOYMENT APPEALS TRIBUNAL 1990 1 IR 98

GILL V CONNELLAN 1988 ILRM 448

ROCHE, STATE V DELAP 1980 IR 170

BUCKLEY V KIRBY & DPP 2000 3 IR 431 2001 2 ILRM 395

1 Hon. Mrs. Justice Susan Denham delivered on the 13th day of November, 2001 . [nem diss]

1. Appeal

2 This is an appeal by the Minister for Justice, Equality and Law Reform, (hereinafter referred to as the Minister), the Refugee Appeals Authority, Ireland and the Attorney General (hereinafter referred to collectively as the respondents) against an order made by the High Court (Kelly J.) on 8th June, 2000. The High Court granted an order of certiorari in respect of the order of the Minister notified to Petrea Stefan (hereinafter referred to as the applicant) by letter dated 29th December, 1998, informing him that his application for refugee status in the State had been refused. It was ordered that the matter be remitted back to the Minister to be considered in accordance with law.

2. Facts

3 The applicant is a Romanian national who arrived in Ireland in 1998 and applied for refugee status. He was furnished with a questionnaire which he returned to the respondents on the 1st May, 1998. Subsequently he was notified of and attended at an interview that took place on the 22nd June, 1998. The application was assessed and a decision was made to refuse the applicant refugee status, which was notified to him by the said letter dated the 29th December, 1998. An appeal form was lodged on the 11th January, 1999. Following further correspondence the applicant was notified by letter of the 2nd March, 1999 of the appeals procedure and furnished with all the material upon which the decision to refuse refugee status had been taken. By letter dated the 22nd March, 1999 the applicant was notified that the appeal hearing was scheduled for the 21st April 1999. By a letter dated the 14th April, 1999 the applicant challenged the decision to refuse refugee status and requested that it be rescinded. On the 20th April, 1999 the applicant applied for and was granted leave to apply for judicial review on a number of grounds. The application was heard on the 8th June, 2000 and an order of certiorari was granted on the grounds that the questionnaire submitted by the applicant had not been fully translated and accordingly the decision to refuse refugee status was made in circumstances where the entire of the material submitted by the applicant was not considered.

4 A key document in this matter is the letter written by Ms. Molyneux on the 29th December, 1998 informing the applicant of the finding against him. That letter stated, inter alia:

"I am directed by the Minister for Justice, Equality and Law Reform to refer to your application for refugee status in the State."

5 Your application has been considered on the basis of the information you provided in support of it, both in writing and at interview, and it has been decided that your application is not such to qualify you for refugee status in accordance with the definition contained in the 1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol and as defined in section 2 of the Refugee Act, 1996.

6 On the basis of the information available you have not fulfilled the requirements of the refugee definition under Article 1A of the 1951 Convention. You have not established a well founded fear for any Convention reason, and furthermore your account lacks credibility in many respects.

7 It is open to you to appeal this decision. If you wish to lodge an appeal against the decision you must do so by notifying the Asylum Appeals Unit of the Asylum Division, Department of Justice, Equality & Law Reform, Timberlay House, 79–83 Lower Mount Street, Dublin 2 in writing within 14 days of the date of this letter. Any further information which you wish to submit to support your case should be forwarded to the Asylum Appeals Unit of the Asylum Division within that time limit. Asylum Appeals Section will advise you of the procedures which apply for processing an appeal following receipt of written notification of your intention to appeal...."

8 The translation of the questionnaire filled in by the applicant was incomplete in that the applicant's reply to question 84 was incomplete in the English translation. As was deposed to by Brendan Toal, on behalf of the applicant, in his affidavit of the 20th April, 1999:

"Question 84 of the questionnaire is as follows:-"

9 "Why are you seeking asylum? (give full details of your claim, bearing in mind that you must demonstrate a well founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion and are unable or unwilling to avail yourself of the protection of your country of origin or residence) - extra pages may be used."

10 As appears from exhibit B the Applicant replied to this question with approx, two and a half pages of cursive script. The English translation is incomplete, in that after the word "finish" at line 10 thereof, the following should appear (per translation provided on 20th April 1999 by a translation agency):-

11 "school and get their leaving cert. Then my family and myself exiled to Roman, it's neighbouring city to the one I was born and grew up in. My wife and children were very distressed and could not come to terms with why I took the decision to move. They asked me why all the time. I told them lots of excuses. My wife and children told me about things that happened to them. The children said older children in school were threatening them and they did not want to go to school They said, they would end up worse that ( sic) Ceausescu. The threats were not only from students, they were from people in the street who were unknown to them. For a period of time I tried to avoid certain places and streets to avoid any threats. But anywhere I applied for work they required the records from my last employment. After I produced my records I had to wait a few days to hear if I got work. All the answers were that they could not give me work. They told me that they could not give me work. They told me that I would not get work anywhere, maybe, if there is another revolution I will get work. These events were what force me to move to roman city.""

3. The High Court

12 The High Court (Kelly J.) held:

"The entire answer to question 84 was not before the Officer who made the decision. As he didn't have all the information then prima facie the decision was defective. The defect can be looked at in either of two ways. First, it can be said that the decision in suit was ultra vires the Minister insofar as in making the order all of the written submissions validly made to the Minister were not considered by him. Secondly, it...