True interpretation of section 28 of Refugee Act 1996 considered by High Court

Israr Ulhaq (applicant) v Minister for Justice Equality and Law Reform and the Refugee Appeals Commissioner (respondent).

Judicial Review Application for refugee status - Transitional provisions - Whether steps taken deemed to have been taken under the Act - Hope Hanlan procedure - Statutory interpretation - Refugee Act 1996 - Illegal Immigrants (Trafficking) Act 2000 - United Nations Convention on the Status of Refugees 1951.

The High Court (Mr Justice Finnegan); judgment delivered 3 July 2001.

On the true interpretation of section 28 of the Refugee Act 1996, any step taken by the minister before the commencement of that Act which corresponded to a step which was required to be taken by the Refugee Applications Commissioner ("RAC") pursuant to that Act, was to be deemed to be a step taken by the RAC under that Act. Both the Hope Hanlan procedures and those under the Act were designed to give effect to the Geneva Convention which enjoined prompt determination of applications. Where a step taken by the minister under the Hope Hanlan procedure (which corresponded to a step under the Act) was not properly completed before the commencement of the Act, then it would not be deemed a step taken by the RAC pursuant to that Act.

Mr Justice Finnegan so held in making the declaration sought.

Feichin McDonagh SC and Timothy O'Leary BL for the applicant; Maurice Collins BL for the respondent.

Mr Justice Finnegan said that this matter had come before him as an application for leave to apply for relief by way of judicial review, the application being one within the provisions of section 5 of the Illegal Immigrants (Trafficking) Act 2000. He said that he was satisfied that there were substantial grounds for contending that the applicant was entitled to the relief sought in the statement grounding his application for judicial review at paragraph (d)(i) to (iii) inclusive upon the grounds set out at paragraph (e)(i) to (viii) therein. These were as follows:

(1) A declaration that the application for asylum made herein by the applicant and dated 9 August 2000 to the first named respondent is to be deemed, pursuant to the provision of section 28 of the Refugee Act 1996, as amended, an application pursuant to section 8 of that Act falling to be considered under the provisions of section 13 of the said Act.

(2) In the alternative an order of mandamus requiring the second named respondent to prepare a report in writing of the results of his investigations setting out his findings and recommendations pursuant to the provisions of section 13 of the Refugee Act 1996, in relation to the application of the applicant, consequent upon which the applicant will be entitled to appeal to the Refugee Appeals Tribunal.

(3) An order by way of interim relief restraining the respondents from further dealing with the application of the applicant pending the hearing of the within judicial review.

Mr Justice Finnegan said that the applicant had applied for refugee status on 9 August 2000 and that his application was being processed under the procedures in place up to 19 November 2000 and known as the Hope Hanlan procedures. The Refugee Act 1996 had established new procedures and the relevant part of that Act had come into operation on 20 November 2000. Section 28 of the Act contained transitional provisions and provided that: Where, before the commencement of this Act, a person had made an application to the minister for asylum but a decision in relation thereto had not being made by the minister then, the application shall be deemed to be an application under section 8 and shall 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.

Mr Justice Finnegan said that the applicant's application was being dealt with under the Hope Hanlan procedures. The steps taken were that on 9 August 2000 his application was completed and on 28 August he had been interviewed by a person appointed by the minister pursuant to paragraph 8 of the Hope Hanlan procedures. On 31 August an assessment of the application by a person appointed by the minister had been carried out and on 17 November the application for refugee status was refused by the minister. By letter dated 1 December 2000 the applicant was informed that his application had been determined and he was not being granted a declaration of refugee status and that letter went on as follows: "The determination of your application was made prior to 20 November, 2000 and was undertaken under the Procedures for Processing Asylum Claims which were in use up to 19 November 2000. Under the transitional arrangements for the Refugee Act this determination is now deemed to have been a step taken under the Act. On the basis of the investigation and report the RAC proposes to furnish a recommendation to the Minister for Justice Equality and Law Reform that you not be granted a declaration of refugee status."

Mr Justice Finnegan stated that the net question to arise on the application was the effect of the Act on this application for refugee status. Firstly, the application was deemed to have been an application under section 8 of the Act and this had presented no difficulty. However, he said, the latter portion of section 28 had to be construed in the light of the circumstances. This read as follows: "Any step taken by the minister before such determination 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."

Mr Justice Finnegan said he was satisfied that, on the true interpretation of this provision, any step taken by the minister before the commencement of the Act which corresponded to a step which was required to be taken by the Refugee Applications Commissioner pursuant to the Act, was to be deemed to be a step taken by the Refugee Applications Commissioner under the Act. Thus under the Hope Hanlan procedures paragraph 8 the minister was required to arrange for the applicant to be interviewed and s 11 of the Act imposed, inter alia, a like obligation. He said he was satisfied that the effect of s 28 was that the interview in fact conducted under the Hope Hanlan procedure paragraph 8 was deemed to have been an interview conducted under section 11 of the Act. He said that paragraph 8 of the Hope Hanlan letter had to be read in conjunction with paragraph 10 thereof and so by implication there had to be a report prepared of the interview for the purposes of the assessment pursuant to paragraph 10 of that procedure. Paragraphs 8 and 10 of the Hope Hanlan procedures corresponded with section 11 of the Act. It was the policy of the Geneva Convention and of the Act that applications for refugee status be dealt with promptly and section 28 of the Act was intended to avoid duplication in the procedures under the Act of those already undertaken under the Hope Hanlan procedures. Both the Hope Hanlan procedures and those under the Act were designed to give effect to the Geneva Convention which enjoined prompt determination of applications and this justified that the effect of the provisions of s 28 being that the interview conducted with the applicant and the report thereon operated as if undertaken pursuant to s 11 of the Act.

Paragraph 10 of the Hope Hanlan provided: "A person appointed by the minister will assess the application having regard to the interview, the report of the interview, any written representation and information obtained from the UNHCR or other internationally reliable sources and such person will make a recommendation to a person authorised by the minister".

On the papers exhibited, Mr Justice Finnegan said that it appeared that an assessment was indeed carried out by a person appointed by the minister and sent by him to two persons authorised by the minister. That assessment however did not contain a recommendation. It seemed therefore that the step envisaged by the Hope Hanlan procedures at paragraph 10 was not in fact completed. Notwithstanding the absence of a recommendation a decision had been made on 17 November to refuse the applicant refugee status. After the refusal the Act had come into force and the commissioner then made a recommendation to the minister to refuse the applicant refugee status. Paragraph 10 of the Hope Hanlan procedures envisaged a single complete step, being an assessment by an officer with a recommendation. The Act in section 13 likewise envisaged an assessment and recommendation by the Commissioner. The incomplete step taken under the Hope Hanlan procedures was not in his view a step taken by the minister and therefore section 28 of the Act could not apply had this step been properly completed and a recommendation made. Mr Justice Finnegan said he was not satisfied that section 28 permitted what had happened, namely: (1) an assessment without a recommendation under paragraph 10 of the Hope Hanlan procedures; (2) a decision by a person authorised by the minister made without a recommendation having been received; and (3) that decision be treated by the commissioner as his report of an investigation under section 13 of the Act to which he could attach his recommendation.

In the circumstances of the case he was satisfied that the only step taken in relation to the applicant's application for refugee status which was to be deemed to have been taken under the Act was the conduct of the interview and preparation of a report thereon and which having regard to section 28 of the Act, was deemed to be an interview and report under section 11 of the Act. In these circumstances, he said he proposed to make a declaration in the terms sought by the applicant at paragraph (d)(i) of the application for judicial review but substituting in the last line thereof for "section 11" the words "section 13".

Solicitors: Edmond W. Cogan & Co (Cork) for the applicant; the Chief State Solicitor for the respondent.