Constantin Dascalu (applicant) v The Minister for Justice, Equality and Law Reform (respondent).
Judicial Review - Application for asylum - United Nations Convention relating to the Status of Refugees 1951 - Von Arnim procedure - Hope Hanlon procedure - Fair procedures - Entitlement in principle to change procedures - Obligation to notify applicant individually of change of procedures.
The High Court (Mr Justice O'Sullivan); judgment delivered 4 November 1999.
THE respondent was entitled to change the procedure for the determination of asylum applications from the von Arnim procedure to the Hope Hanlon procedure and was entitled to do so in regard to those applications which were on hand on the date of the introduction of the new procedure. However, fair procedures required that the minister notify the applicant individually that his application was being dealt with under the new procedure, which included the possibility of the application being deemed manifestly unfounded and the application being refused without further consideration. Mr Justice O'Sullivan so held in granting the applicant relief by way of judicial review in the form of an order of certiorari against the respondent's decision to refuse his appeal against the decision refusing him refugee status.
Feichin McDonagh SC and Teresa Blake BL for the applicant; Paul Butler SC and Eileen Barrington BL for the respondent.
Mr Justice O'Sullivan said that the applicant sought to challenge the respondent's decision to refuse his application for refugee status on the basis that his application was manifestly unfounded. The grounds upon which the applicant challenged the decision were that:
(1) the respondent was not permitted to change from the von Arnim to the Hope Hanlon procedure once he had commenced processing the applicant's claim; (2) the respondent failed to observe the principles of natural and constitutional justice in a number of aspects specified in the statement grounding his application; and
(3) the applicant had a legitimate expectation that his application would be considered in accordance with the von Arnim procedure.
Mr Justice O'Sullivan set out the facts of the case stating that, in his asylum application, the applicant claimed that he had travelled from the United Kingdom to Ireland in January 1996 and applied for asylum. He claimed that he had participated in an anti-Communist and pro-monarchy demonstration in Romania, incurred the wrath of the police who pursued him and told him that he was not permitted to leave town without first informing them and that he had been forced to sign papers without knowing their contents. The applicant claimed that he decided to leave because he could not live like that anymore. In April 1997, the applicant was interviewed by a representative of the respondent in the presence of an interpreter. At the commencement of the interview, he made it known that what was written in his application questionnaire was untrue. The applicant was advised that he had a right of appeal to an appeals authority if his application was refused, that he had a right to legal representation and to contact the UNHCR himself if he so wished. In the course of the interview, the applicant said that he left Romania in 1995 after receiving a call for military service. He travelled to Warsaw and then to London via Germany. From speaking to other Romanians in Britain, he understood that he had no chance of getting asylum and that he might be deported and, for which reason, he travelled to Ireland to apply for asylum. The applicant admitted that the only reason he did not want to stay in Romania was because he did not want to do his military service.
Mr Justice O'Sullivan said that, at the end of the interview, it was recorded that when asked, the applicant confirmed that he was happy with the interpreter, was satisfied that he had had an opportunity to explain his case and present it fully and had nothing further to add. Mr Justice O'Sullivan noted that the applicant's affidavit claimed that the interviewer and interpreter had regular conversations in English during the interview, to which the applicant was not a party and which he did not understand. The applicant's affidavit challenged the record of the interview as not fairly reflecting what was said and not recording the applicant's reasons and genuine fear that he had tried to convey regarding his fear of army service. Mr Justice O'Sullivan accepted that, while the applicant's affidavit did not elaborate upon the reasons for this genuine fear, he was bound by the best evidence rule to accept the applicant's evidence in the absence of an affidavit from the interviewer to challenge this allegation. Mr Justice O'Sullivan said that the application was required to be processed in accordance with the von Arnim procedure, based on a letter written in December 1985 on behalf of the Minister for Justice to the then UNHCR representative. This letter detailed an agreed procedure for the determination of applications for refugee status pursuant to the United Nations Convention Relating to the Status of Refugees 1951, as amended by the Protocol Relating to the Status of Refugees 1967. He noted that this provided that an applicant would not be refused entry or removed until he had been given an opportunity to present his case fully and his application had been properly examined and determined. Mr Justice O'Sullivan noted that while the von Arnim procedure was operational at the time of the interview, it was replaced with the Hope Hanlon procedure in December 1997.
This new procedure, which also took its name from a letter to the UNHCR representative, introduced an accelerated procedure for "manifestly unfounded cases". It permitted a person authorised by the respondent to decide to terminate further examination of an application and to refuse refugee status on the basis that the application was manifestly unfounded. The procedure stated a number of grounds on which an application could be deemed manifestly unfounded and was revised in March 1998 to permit an applicant to appeal such a decision to an independent authority. Mr Justice O'Sullivan noted that the respondent's department issued a press release regarding the changed procedures and circulated the new procedure to members of the Oireachtas and refugee organisations.
On 5 May 1998, the applicant's asylum application was refused as manifestly unfounded on the grounds that: it did not show on its face any grounds for the contention that the applicant was a refugee as his reason for leaving his country did not relate to his persecution and there was no evidence of persecution; he had made deliberately false or misleading representations in relation to his application and had given no reason for not being truthful in that application; and he had failed to reveal that he had lodged a prior application for asylum in England. The applicant was informed that he could appeal this decision or arrange to leave the State. The applicant then engaged a solicitor who formally appealed the decision and requested copies of the papers from the respondent. The solicitor was sent a copy of the Hope Hanlon procedure and advised of the appeal procedure, but apparently was sent no other papers. The solicitor replied complaining about the procedures and referring to the conversations between the interpreter and interviewer to which the applicant was not a party. The solicitor also asserted the applicant's grounds for refugee status and sought an oral hearing of the appeal "without prejudice to our right to seek a judicial review".
A further letter from the respondent advised the solicitor that this correspondence would be sent to the appeals authority. There was no oral hearing and on 12 June 1998 the appeals authority recommended that the appeal be disallowed on the basis that no reason had been advanced to justify the applicant being granted refugee status because the only reason for his departure from Romania was to avoid military service. This view was taken apart from the fact that the applicant had applied for refugee status in England and had not pursued that claim. Following this recommendation, the respondent wrote to the applicant on 19 June 1998 refusing asylum and upholding the original decision.
Mr Justice O'Sullivan said that it was clear that the respondent was bound by procedures which had been agreed with the Irish representative of the UNHCR (referring to the von Arnim procedure) and considered that he was also bound by procedures which had been notified to such representative in the absence of disagreement (referring to the Hope Hanlon procedure). Mr Justice O'Sullivan commented upon the unsettled legal basis for imposing such an obligation. He noted that Mr Justice O'Hanlon had considered that it was based on an applicant's legitimate expectation in Fakih & Others v The Minister for Justice [1993] 2 IR 406 whereas Mr Justice McCarthy had preferred simply to hold the minister to his undertaking in Gutrani v The Minister for Justice [1993] 2 IR 427; and that in the somewhat comparable case of Webb v Ireland [1988] IR 353, the Chief Justice Mr Justice Finlay had relied on the equitable concept of promissory estoppel. Finally, he noted that, in Anismova v The Minister for Justice [1998] 1 IR 186, Mr Justice Murphy had found it unnecessary to resolve the different views of Mr Justice O'Hanlon and Mr Justice McCarthy because in the case before him the respondent accepted that she was bound by the von Arnim procedure. However, Mr Justice O'Sullivan said it seemed axiomatic that, whatever procedure was engaged in by the respondent, it must be subject to the principles of basic fairness and procedural justice.
Mr Justice O'Sullivan also referred to the evidence of the extent of consultation in relation to the Hope Hanlon procedure, not only with the UNHCR representative but with the bodies representing refugees. He noted that, while there was no explicit agreement in relation to the new procedure, there was no disagreement and he considered that it represented a justified and properly implemented change in the procedures. Mr Justice O'Sullivan noted that the Hope Hanlon procedure expressed itself to come into effect from 10 December 1997 and would "apply to all applications on hand at that date or made on or after that date". He rejected the submission that this could be construed to apply only to applications made after the relevant date. Mr Justice O'Sullivan noted the respondent's averment that the vast increase in the number of applicants seeking asylum in Ireland rendered the von Arnim procedure unworkable in most cases and that a new procedure was necessary to deal with the several thousand cases on hand. He was satisfied that this provided an objective justification for the new procedure which would "fast-track" manifestly unfounded applications, not only in the interests of administrative convenience but also in the interests of dealing reasonably promptly with genuine applications. He also noted that the von Arnim letter itself expressly provided for a review in light of experience. Mr Justice O'Sullivan held that the respondent was entitled in principle to change the procedure and was entitled to do so in regard to the applications which had already been submitted under the von Arnim regime.
However, Mr Justice O'Sullivan said that that the applicant was entitled to be told about the altered procedures prior to the determination of his application. He said that while the applicant's awareness of the precise procedures under either letter might be disputed, the obligation to inform the applicant did not rest on the state of mind of the applicant but rested on the respondent's obligation to carry out the procedure, that he had undertaken to enforce, in accordance with the basic principles of fairness and procedural justice.
Mr Justice O'Sullivan considered it noteworthy that one of the respondent's reasons for refusing the applicant's application was that he had made deliberately false or misleading representations without giving any reason for not being truthful in his asylum application. He noted that, at the interview, the applicant volunteered that he had told lies but had apparently not been questioned as to whether he had any reason for not being truthful. Mr Justice O'Sullivan said that the von Arnim procedure, which applied at the time of the interview, entitled the applicant to have his application fully dealt with and properly examined before being refused entry. He considered that, given that the respondent had undertaken to conduct a procedure which at the relevant time did not include the possibility of a "fast-track" approach for a manifestly unfounded application, the subsequent introduction of such an approach was a radical alteration in the procedures and one of which the applicant was entitled to notice before his application was finally determined. Mr Justice O'Sullivan noted that the Hope Hanlon procedure contemplated the possibility that an applicant might have had a reasonable cause for having made deliberately false or misleading representations and that fairness required that such an applicant at least be given the opportunity of explaining whether such a reasonable cause existed. This was particularly so where the misleading information became a ground for determining that his application was manifestly unfounded, thereby bringing the procedure for considering his application to a halt and refusing the applicant refugee status.
Mr Justice O'Sullivan held that the in the circumstances of the case, which included specific reliance on misleading information, fair procedures required that the Minister notify the applicant individually that his application was now being dealt with under new procedures which include the possibility of determining that it was manifestly unfounded and refusing him refugee status without further consideration. He rejected the respondent's submission that the applicant received sufficient notice of the change in procedures by reason of the issue of a press release regarding the changed procedures and the circulation of the new procedure. Mr Justice O'Sullivan further held that the applicant's involvement in the appeal procedure through his solicitor was not sufficient to cure the respondent's want of fair procedures. He said that the applicant would have to clearly and unambiguously waive his right to have proper notice of the changed procedure before this right could be regarded as abandoned. He noted that the refusal was appealed "without prejudice to [the] right to seek a judicial review" and that, while the respondent did not challenge this basis, it could not be regarded as an unambiguous acquiescence in the legitimacy of the appeal procedures themselves. Mr Justice O'Sullivan considered that, if the applicant had been notified of the change in procedures, he would have been entitled to make a further submission and/or consult a lawyer but that he would not have been entitled to have had his application determined under the von Arnim procedures.
Mr Justice O'Sullivan granted relief by way of judicial review in the form of an order of certiorari, quashing the respondent's decision, communicated by letter of 19 June 1998, to uphold the decision to refuse the applicant's application for refugee status. He refused however to grant relief in the form of mandamus or a declaration that the applicant was entitled to have his application determined in accordance with the von Arnim procedure.
Solicitors: Edmond Cogan & Co. (Cork) for the applicants; Chief State Solicitor for the respondent.
