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

• Jurisdiction: Ireland
• Court: Supreme Court
• Judge: Mrs Justice McGuinness,DenhamJ.
• Judgment Date: 01 March 2002
• Neutral Citation: [2002] IESC 14
• Date: 01 March 2002

[2002] IESC 14

THE SUPREME COURT

Keane, C.J.

Denham, J.

Murphy, J.

Murray, J.

McGuinness J.

308/01, 310/01

Z v. MIN FOR JUSTICE & ORS

JUDICIAL REVIEW

BETWEEN

Z

APPLICANT/APPELLANT

AND

THE MINISTER FOR JUSTICE, EQUALITY AND LAW REFORM, JAMESNICHOLSON SITTING AS THE APPEALS AUTHORITY, IRELAND AND THE ATTORNEYGENERAL

RESPONDENTS

Citations:

HOPE HANLAN LETTER (PROCEDURES) PARA 14(a)

HOPE HANLAN LETTER (PROCEDURES) PARA 14(b)

HOPE HANLAN LETTER (PROCEDURES) PARA 14(c)

EUROPEAN CONVENTION ON THE PROTECTION OF HUMAN RIGHTS & FUNDAMENTAL FREEDOMS ART 6.1

P & L & B V MIN FOR JUSTICE 2002 1 ILRM 16

HOPE HANLAN LETTER (PROCEDURES) PARA 12

HOPE HANLAN LETTER (PROCEDURES) PARA 13

HOPE HANLAN LETTER (PROCEDURES) PARA 14

ILLEGAL IMMIGRANTS (TRAFFICKING) ACT 2000 S5(2)

ILLEGAL IMMIGRANTS (TRAFFICKING) ACT 2000 S5(3)

ILLEGAL IMMIGRANTS (TRAFFICKING) ACT 2000 S5(3)(a)

ILLEGAL IMMIGRANTS (TRAFFICKING) ACT 2000 S5

ART 26 OF THE CONSTITUTION & S5 & S10 OF ILLEGAL IMMIGRANTS (TRAFFICKING) BILL 1999, RE 2000 2 IR 360

SCOTT V BORD PLEANALA 1995 1 ILRM 424

MCNAMARA V BORD PLEANALA 1995 2 ILRM 125

LANCEFORT V BORD PLEANALA 1997 2 ILRM 508

GOLDBERG V KELLY 397 US 254

HAUGHEY, RE 1971 IR 217

RUSSELL V DUKE OF NORFOLK 1949 1 AER 109

KIELY V MIN FOR SOCIAL WELFARE 1977 IR 267

GALVIN V CHIEF APPEALS OFFICER 1997 3 IR 240

SELVARAJAN V RACE RELATIONS BOARD 1976 1 AER 12

REFUGEE ACT 1996 S5

OFFICE OF THE UNITED NATIONS HIGH COMMISSION FOR REFUGEES HANDBOOK ON PROCEDURES AND CRITERIA FOR DETERMINING REFUGEE STATUS

BUGDAYCAY V SECRETARY OF STATE FOR HOME DEPARTMENT 1987 1 AER 980

R V SECRETARY OF STATE EX-PARTE CAMBOLAT 1998 1 AER 161

R V MINISTER OF DEFENCE EX-PARTE SMITH 1996 1 AER 257

BAILEY V MIN FOR FLOOD UNREP SUPREME 14.4.2000 2000/2/491

HAVERTY, STATE V BORD PLEANALA 1987 IR 485

O'KEEFFE V BORD PLEANALA 1993 1 IR 39

CHIEF CONSTABLE OF NORTH WALES POLICE V ECANS 1982 3 AER 141

KEEGAN, STATE V STARDUST COMPENSATION TRIBUNAL 1986 IR 6421

GARDA REPRESENTATIVE ASSOCIATION V IRELAND 1994 1 ILRM 81

RADIO LIMERICK ONE V IRTC 1997 2 ILRM 1

DEVLIN V MIN FOR ARTS 1999 1 ILRM 462

MOONEY V AN POST 1998 4 IR 288

POK SUN SHUM V IRELAND 1986 ILRM 593

OSHEKU V IRELAND 1986 IR 733

LAURENTIU V MIN FOR JUSTICE 1999 4 IR 26

FLOOD V GARDA COMPENSATION COMPLAINTS BOARD 1997 2 IR 321

HOGAN & MORGAN ADMINISTRATIVE LAW IN IRELAND 3ED 556

WILLIAMS, STATE V ARMY PENSION BOARD 1981 ILRM 379

Synopsis:

- [2002] 2 IR 135 - [2002] 2 ILRM 215

Facts: The applicant had applied for refugee status. The application was found to be "manifestly unfounded" and was refused. The applicant sought an order of certiorari in respect of the decision. In the High Court Mr. Justice Finnegan was satisfied that the absence of an oral hearing at the hearing of an appeal for an application for refugee status did not infringe the right of the applicant to natural and constitutional justice. The applicant appealed the judgment and contended that the decision to refuse him refugee status was manifestly unreasonable and failed to have regard to the requirements of natural and constitutional justice. In addition the applicant challenged the Hope Hanlan procedures under which his application had been processed. The applicant also sought to challenge the methodology used in the High Court to determine whether his application to the Court contained "substantial grounds".

Held by the Supreme Court (McGuinness J and Denham delivering judgment) in dismissing the appeal. Mrs. Justice McGuinness held that the State was obliged under international law to ensure that refugees presenting themselves in the State seeking protection were identified and their status recognised. Some of the criticisms of the decision making process were accepted. However the burden of proof of establishing refugee status was on the applicant and he had not brought forward evidence of his persecution. There was sufficient material before the decision-makers to render the decisions reasonable and therefore intra vires. The absence of an oral hearing did not infringe the right of the applicant to natural and constitutional justice. Mrs. Justice Denham concurred with the judgment and made some remarks in relation to the correct test to be applied in the context of reasonableness.

1 Mrs Justice McGuinnessdelivered the 1st day of March 2002

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

3 The Appellant 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 named Respondent. The Appellant 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.

4 On the 21st October 1999 the Appellant filled in a standard questionnaire in regard to his application for refugee status. On 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 at the interview have been exhibited in the proceedings. The Applicant claims that in October 1996 he was sent by the military authorities in Russia to Chechnya to work on the restoration of an oil pipeline there. He was wounded during an attack by Chechnyan paramilitaries and was subsequently kidnapped by Chechnyans and held captive for a period of a year. He states that the Russian authorities made no attempt either to free him or to ransom him. He claims that the Russian authorities brought criminal charges against him for surrendering his weapons to the paramilitaries and for disobeying his superiors' orders, among other matters. However in another part of the questionnaire he appears to state that there is an amnesty at present in regard to these offences. He claims that eventually in November 1997 he ransomed himself by giving all his property including his apartment in Leningrad, his summer house in Repino and two cars to the Chechnyan paramilitaries. He still owes $5,000 to the paramilitaries andis afraid to return to Russia on this account. As additional grounds to illustrate his fear of persecution Mr Z. stated that during his life in the USSR he was repeatedly subjected to humiliation on the part of his compatriots because of his Jewish origin. He also stated that there were unceasing attacks on him because of his past political views as a member of the Communist Party up to 1989.

5 In December 1997 Mr Z. left Russia and flew to South Africa, apparently on an ordinary tourist visa. He stayed for one year and ten months in South Africa. He appears to have sought refugee status in South Africa but was told that he must apply to the South African Embassy in Moscow. While in South Africa he worked as a ship's mechanic and states that he had no problems with the authorities there. He decided to leave South Africa because the situation there was impossible for white people. He could not get a job and it was dangerous to go out at night. On the advice of a friend he decided to seek refugee status in Ireland. He travelled by cargo ship from Capetown to Belfast and subsequently came by bus to Dublin.

6 As soon as the Appellant arrived in this country he applied for refugee status. He was informed that his application would be dealt with in accordance with the Hope Hanlan Procedures, to which I will refer later. He was furnished with a copy of those procedures by letter of 18th May 2000 and as stated above he was interviewed by Ms Majella Donoghue on 8th June 2000. On or about the 21st June 2000 Ms Donoghue sent a report on the Appellant's case to her superior, Mr Enda Hughes, Higher Executive Officer in the Asylum Division of the first named Respondent. In her report she concluded that the Applicant's asylum application should be considered "manifestly unfounded". On the 22nd June 2000 Mr Hughes made a decision that the Appellant's case was "manifestly unfounded" on the grounds of paragraphs 14(a), 14(b) and 14(c) of the Hope Hanlan Procedures. The Appellant's case was thereafter dealt with in accordance with an accelerated procedure. Theprincipal effect of this accelerated procedure was that any appeal by the Appellant against the decision of Mr Hughes would be based on the available papers. There would not be an oral hearing of his appeal.

7 On 29th June 2000 the Appellant received a letter from Mr Hughes informing him of the determination that his case was manifestly unfounded and giving him information with regard to his opportunity to appeal and with regard to the obtaining of legal advice. At this stage the Appellant attended a solicitor attached to the Refugee Legal Service and received legal advice and assistance. An appeal was lodged...