VZ v Minister for Justice

• Jurisdiction: Ireland
• Judgment Date: 01 March 2002
• Date: 01 March 2002
• Docket Number: [S.C. Nos. 308 and 310 of 2001]
• Court: Supreme Court

Supreme Court

[S.C. Nos. 308 and 310 of 2001]

v. Z. v. Minister for Justice

V.Z.

Applicant

and

Minister for Justice, Equality and Law Reform, James Nicholson sitting as the Appeals Authority, Ireland and the Attorney General

Respondents

Cases mentioned in this report:-

Associated Provincial Picture Houses Ltd. v. Wednesbury Corporation [1948] 1K.B. 223; [1947] All E.R. 680.

Bailey v. Flood (Unreported, Supreme Court, 14th April, 2000).

Bugdaycay v. Secretary for State for the Home Department;[1987] A.C. 514; [1987] 2 W.L.R. 606; [1987] 1 All E.R. 940.

Chief Constable of the North Wales Police v. Evans [1982] 1 W.L.R. 1155; [1982] 3 All E.R. 141.

Devlin v. Minister for Arts [1999] 1 I.R. 47; [1999] 1 I.L.R.M. 462.

Flood v. Garda Compensation Complaints Board [1997] 3 I.R. 321.

Galvin v. Chief Appeals Officer [1997] 3 I.R. 240.

Garda Representative Association v. Ireland [1994] 1 I.L.R.M. 81.

Goldberg v. Kelly (1969) 397 U.S. 254.

In re Haughey [1971] I.R. 217.

The Illegal Immigrants (Trafficking) Bill, 1999 [2000] 2 I.R. 360.

Jackson Way Property Ltd. v. Minister for the Environment [1999] 4 I.R. 608.

Kiely v. Minister for Social Welfare [1977] I.R. 267.

Lancefort v. An Bord Pleanála (No. 2) [1997] 2 I.L.R.M. 508.

Laurentiu v. Minister for Justice [1999] 4 I.R. 26; [2000] 1 I.L.R.M. 1.

McNamara v. An Bord Pleanála [1995] 2 I.L.R.M. 125.

Mooney v. An Post [1998] 4 I.R. 288.

O'Keeffe v. An Bord Pleanála [1993] 1 I.R. 39; [1992] I.L.R.M. 237.

Osheku v. Ireland [1986] I.R. 733; [1987] I.L.R.M. 330.

F.P. v. Minister for Justice [2002] 1 I.R. 164; [2002] 1 I.L.R.M. 16.

Pok Sun Shum v. Ireland [1986] I.L.R.M. 593.

Radio Limerick One v. I.R.T.C. [1997] 2 I.L.R.M. 1.

R v. Ministry for Defence, ex parte Smith [1996] Q.B. 517; [1996] 2 W.L.R. 305; [1996] 1 All E.R. 257.

R v. Secretary of State for the Home Department, ex p. Canbolat [1997] 1 W.L.R. 1569; [1998] 1 All E.R. 161.

Russell v. The Duke of Norfolk [1949] 1 All E.R. 109; [1948] W.N. 111.

Selvarajan v. Race Relations Board [1975] 1 W.L.R. 1686; [1976] 1 All E.R. 12;

Scott v. An Bord Pleanála [1995] 1 I.L.R.M. 424.

The State (Keegan) v. Stardust Victims Compensation Tribunal [1986] I.R. 642; [1987] I.L.R.M. 202.

The State (Haverty) v. An Bord Pleanála [1987] I.R. 485; [1988] I.L.R.M. 545.

The State (Williams) v. Army Pension Board [1981] I.L.R.M. 379.

Aliens - Refugee status - Manifestly unfounded procedure - Hope Hanlon procedure - Fair procedures - Oral hearing on appeal - Onus of establishing claim - Whether failure to provide for oral hearing on appeal in breach of natural and constitutional justice - Whether State justified in operating accelerated procedure where claims manifestly unfounded - Refugee Act, 1996 (No. 17), s. 2 - Illegal Immigrants (Trafficking) Act, 2000 (No. 29), s. 5(2) and (3).

Appeals from the High Court.

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

Pursuant to the statement of grounds dated the 25th September, 2000, the applicant sought leave to apply for judicial review of the decision of the respondents not to grant him refugee status in the State.

The applicant appealed against the decision of the High Court (Finnegan J.) delivered on the 29th March, 2001, granting leave to the applicant to bring judicial review proceedings on one ground only and refusing leave on all the other grounds advanced. Judgment was delivered on the 17th July, 2001, in the substantive judicial review proceedings by the High Court (Finnegan J.), refusing the relief sought. By notice of appeal dated the 26th November, 2001, the applicant appealed the decision of the High Court to the Supreme Court. The appeals were heard by the Supreme Court (Keane C.J., Denham, Murphy, Murray and McGuinness, JJ.) on the 4th February, 2002.

The applicant applied for refugee status and was informed that his application would be dealt with in accordance with the Hope Hanlan procedures. In June, 2000, a decision was made that the applicant's application was "manifestly unfounded". The applicant's case was thereafter dealt with in accordance with an accelerated procedure and there would be no oral hearing on appeal.

By way of judicial review the applicant sought, inter alia,an order of certiorari in respect of the decision made by the respondents that his claim for refugee status should be treated as"manifestly unfounded". The applicant appealed against the judgment of the High Court which further gave him leave to bring judicial review proceedings on one ground only. The applicant also appealed against the subsequent decision of the High Court in which the trial judge refused the relief sought.

Held by the Supreme Court (Keane C.J., Denham, Murphy, Murray and McGuinness JJ.), in dismissing the appeals, 1, that the absence of provision for an oral hearing of the appeal from a decision that an application for refugee status was manifestly unfounded did not infringe the right of an applicant for refugee status to natural and constitutional justice.

The State (Williams) v. Army Pension Board [1981] I.L.R.M. 379 considered.

2. That the trial judge was correct in applying the well established standards and parameters of judicial review in his consideration of the decision-making procedures of the respondent.

O'Keeffe v. An Bord Pleanála [1993] 1 I.R. 39; The State (Keegan) v. Stardust Victims Compensation Tribunal[1986] I.R. 642; Flood v. Garda Compensation Complaints Board[1997] 3 I.R. 321 considered.

3. That, prior to the enactment and bringing into operation of the Refugee Act, 1996, the obligation to provide a fair system of fair procedures to identify and protect refugees was met by the procedures agreed between the State and the U.N.H.C.R. in the first Von Arnim letter and subsequently the Hope Hanlon letters.

4. That, even though the State was obliged under international law to ensure that refugees seeking protection were identified and their status recognised, it must also be accepted that the State was justified in operating an accelerated procedure where claims to refugee status appeared on proper investigation to be manifestly unfounded.

5. That the inherent element of State sovereignty over national territory should be held in balance against the domestic and international obligations which the State had accepted in its role as a signatory to the Geneva Convention.

Re the Illegal Immigrants (Trafficking) Bill, 1999, [2000] 2 I.R. 360; Osheku v. Ireland[1986] I.R. 733; Laurentiu v. Minister for Justice[1999] 4 I.R. 26 considered.

6. That the burden of proof of establishing refugee status was on the applicant and it was open to the applicant, whether at his interview, or by additional submissions after his interview, or in submissions at the time of his appeal, to bring forward evidence of his persecution on any of the Convention grounds and the burden of proof of establishing that he personally had a well-founded fear of persecution rested on the applicant.

7. That it was sufficient that the applicant's judicial review application received careful scrutiny under the established standards relating to reasonableness.

Quaere: Whether the standard of unreasonableness or irrationality was to be lowered where the decision-making process was subject to anxious scrutiny?

Cur. adv. v ult.

Keane C.J. 1st March, 2002

I have read the judgment about to be delivered by McGuinness J. and I agree with it.

Denham J.

I am in agreement with the judgment to be delivered by McGuinness J.

McGuinness J. has indicated that the issue of the test to be applied - often referred to as the test in O'Keeffe v. An Bord Pleanála [1993] 1. I.R. 39 - was not fully argued and that her remarks are merely a preliminary impression; that further consideration must await a fuller argument in a future case. I too await a fuller argument on this issue in a future case.

Murphy J.

I agree with the judgment of McGuinness J.

Murray J.

I also agree with the judgment of McGuinness J.

McGuinness J.

These two appeals arise from judicial review proceedings brought by the applicant in which he sought to challenge a number of decisions and recommendations made in the course of his application to the first respondent to be granted refugee status in this jurisdiction. The applicant has appealed against the judgment and order of the High Court (Finnegan J.). of the 29th March, 2001, in which the trial judge gave leave to the applicant to bring judicial review proceedings on one ground only and refused leave on all the other grounds put forward. The applicant has also appealed against the subsequent judgment of Finnegan J. delivered on the 17th July, 2001 and his order made on the 26th July, 2001. This judgment and order followed on the substantive hearing of the applicant's judicial review proceedings, in which the trial judge refused the relief sought.

The applicant is a 53 year old Russian national who arrived in this country on the 18th October, 1999 and on that date made an application for refugee status to the first respondent. The applicant was born in Leningrad/St. Petersburg, is divorced and has two daughters. He states that he has "no religion" but is ethnically a Jew since his mother was Jewish. He qualified both as a ship's mechanic and as a mechanical engineer and for over twenty years worked for a firm engaged in underwater pipeline construction. He served three periods of military service, gained the rank of lieutenant captain and remained in the military reserve. He was a member of the Communist Party from 1976 to 1989.

On the 21st October, 1999, the applicant filled in a standard questionnaire in regard to his application for refugee status. On the 8th June, 2000, he was interviewed by Ms. Majella Donoghue of the Department of Justice, Equality and Law Reform. English language versions of the questionnaire and the notes taken by Ms. Donoghue...