THE HIGH COURT (JUDICIAL REVIEW)

Record No. 114JR/2001
Between
H. D. AND D. D. 
Applicants
 and
THE MINISTER FOR JUSTICE, EQUALITY AND LAW REFORM 
Respondent
AND
Between/
Record No. 191A/2001 286JR

I. L. AND V. L.
Applicants

- and -

THE MINISTER FOR JUSTICE, QUALITY AND LAW REFORM
Respondent
	
The Applicants in this case are husband and wife and they arrived in this State having purchased five tickets in Poland, (accompanied by two grandchildren  and one married daughter). There is a prospect, clearly, in the documentation of a further two members of this extended family arriving in Ireland, members of the Roma community. They arrived in Ireland on 3rd February 2000, and signed the requisite forms for claiming asylum. Thereafter, they came to be interviewed on 2nd May 2000. The Applicants' claim to refugee status is based upon their fear of persecution owing to past abuse, ill treatment and discrimination in Poland, including discrimination at the hands of the Polish authorities by reason of their ethnic and social status as members of the Roma community. A number of detailed reports were made on foot of the interviews held with the Applicants, who at that time were being put up or otherwise resident in the Eglinton Hotel in Galway. Reports were prepared by Mr. O'Hallaran on 22nd May 2000, and by Mr. McKevitt on 12th June 2000, who, with insight, observed in the analysis in his report as follows:
"There is no doubt that the Roma in Poland do have to put up with a large degree of racism, verbal abuse and vandalism, mostly from what they call the 'skinhead' element. It seems that the great majority of Poles leave them in peace and we know that the Government has taken a number of measures to improve their lot. In many ways their condition is akin to that of the travellers here in Ireland."
A further report was prepared by way of recommendation by Mrs. Cecelia Lynch, dated 20th June 2000, which recommended that the Applicants' application for refugee asylum be considered as manifestly unfounded. A letter dated 11th July 2000, addressed to the Applicants, confirmed the reports and recommendation and indicated to the Applicants that their application for refugee status was considered as manifestly unfounded. Against this decision a lengthy and detailed letter of appeal, dated 20th July 2000, was prepared by the Refugee Legal Service. With that letter of appeal were enclosed a large number of documents which concerned themselves with investigations of applications for asylum and the necessity of taking a view that in coming to a view that an application was manifestly unfounded, that should clearly relate to an application that was clearly fraudulent "or not related to the criteria for the granting of refugee status laid down in the 1951 United Nations Convention relating to the status of refugees nor to any other criteria justifying the granting of asylum". With the letter of appeal was also a statement on the processing of claims under the manifestly unfounded procedures by the "Refugee Protection Policy Group", being a position paper dated No. 3 July 2000, which I have considered in detail.
In paragraph numbered 16 of the letter of appeal reference is made to literature concerning the "persecution suffered by the Roma in Poland" and in particular Appendix C includes a number of extracts of articles published by the European Roma Rights Centre relating to incidents of persecution which have taken place, which are exhibited as Exhibit D. At internal page 16 of that document, being page 129 of the book of documents submitted to the court, the comparison is made with the new halting sites law for Irish travellers in comparison with other European, in particular Roma, communities in Poland and elsewhere. There are notes attached to the end of that document which indicate as follows:
"Documentary research for this paper has revealed that the Roma people's association of Poland, headed by Roman Kwiatkowski -- a source for this paper -- is currently under investigation for mismanagement of funds relating to payments to holocaust survivors.
Mr. Kwiatkowski has denied all allegations made against him. So as not to prejudge the outcome of the investigation, it was decided to retain the information that he had provided. However, the research directors are of the opinion that it is incumbent upon them to advise the readers of this investigation of such allegations so that they might take this into consideration accordingly."
The appeal is also supported by the Galway Travellers Support Group, and by a group of persons with an address at Killeen, Castlegar, County Galway.
Attached to the appeal are medical reports on the Applicants and their granddaughter. It is unnecessary for the purposes of the determination of this application, but it may be briefly stated that there are a number of complicated factors in relation to the application concerning children whose parents seem to have permitted their removal from Poland and in respect of whom the Applicants or their daughter are in loco parentis. The court is not concerned with any irregularities of arrangements made for the begetting of children elsewhere but merely records the matter as a factor that formed part of the overall facts to be considered by the decision makers whose decisions are sought to be reviewed in these proceedings.
The Appeals Authority, in the person of Mr. Cahill, upheld the Applicants' appeal against the manifestly unfounded determination and recommended that a full, substantive consideration be given of their cases. He stated (inter alia), as recorded in the affidavit grounding the application:
"The interview notes suggest that much of the contents of the statements were not investigated and I feel, in fairness to the Appellants, that these matters should be investigated thoroughly and for that reason I feel that the appeal should be allowed and the application should be sent forward for substantive consideration."
On a detailed consideration of the papers that view was possible to be arrived at, but equally so it seems to me that a number of questions were asked at interview that were evaded. In the events, a letter dated 24th October 2000, originating in the department of the Respondent Minister, stated as follows:
"I am directed by the Minister for Justice, Equality and Law Reform to refer to your appeal against the decision that your application for refugee status within the State is manifestly unfounded under procedures drawn up following consultation with the United Nations Commissioner for Refugees.
The Appeals Authority has considered all the issues raised in your appeal and has made a recommendation based on the papers on the file. As an officer duly authorised by the Minister, I have considered the recommendation of the Appeals Authority and I have decided to overturn the original decision and grant your appeal.
An officer from the Processing Unit of the Asylum Division will be in touch with you in the near future with regard to the substantive consideration of your asylum application. In the meantime, please keep the department informed of any change in your address. Yours Sincerely,
Bridgeena Nolan Deciding Officer"
A letter in these terms was written to both Applicants in this case. The case made by the Applicants was that they were awaiting hearing  further from the Respondent Minister on the basis that their appeal was successful.
The next step taken in these proceedings was that a letter dated 25th October 2000 was written by one Janet Foley of the Asylum Appeals Unit to Mr. Joe Gavin, Assistant Principal, Case Proceeding A, referable to the Applicants, which states as follows: -
"Bridgeena Nolan has decided, following Eamon Cahill's (Appeals Authority) recommendation, that the attached file should be resubmitted to Case Processing A to be considered substantively.
If you have any queries in regard to this matter, please contact me."
On this letter there is endorsed a short note which reads as follows:
"Ms. Lynch,
I have reviewed the papers on file having had regard to the recommendation of the AA and the decision of the Deciding Officer. I am satisfied that these Applicants do not come within the terms of the Refugee Act of 1996, as amended. I have therefore no option but to substantially refuse their claims. Letter of refusal to issue.
 Joe Gavin
14/11/00"
As a result of the foregoing, a letter issued from the Refugee Applications Commissioner, signed by Cecelia Lynch, Higher Executive Officer, dated 17th January 2001, to the Applicants, in the terms following:-
"I am directed by the Refugee Applications Commissioner to refer to your application for a declaration as a refugee. Your application is being dealt with in accordance with the provisions of the Refugee Act 1996 (as amended). Details of the procedures provided for in that Act are set out in the 'Information Leaflet for Applicants for Refugee Status in Ireland'. You have already been provided with a copy of this leaflet. Copies are also available from the office of the Refugee Applications Commissioner, 79/83 Lower Mount Street, Dublin 2.
The determination of your application was made prior to 20th November 2000, and was undertaken under the Procedures for Processing Asylum Claims which were in use up to 19th 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 of and your report on your application, the Refugee Applications Commissioner proposes to furnish a recommendation to the Minister for Justice, Equality and Law Reform that you not be granted a declaration'of refugee status.
I enclose a copy of the investigation of and report on your application together with information used in regard to your application.
You may appeal against this determination within fifteen working days of the date of this letter. Your appeal must be submitted, on the enclosed Notice of Appeal, to the Refugee Appeals Tribunal, 6/7 Hanover Street, Dublin 2, and the grounds for the appeal must be specified. A copy of all supporting documentation/ evidence relating to your application must also be furnished to the Tribunal with your Notice of Appeal. The Notice of Appeal must specify the grounds for the appeal and also indicate whether you wish the Tribunal to hold an oral hearing for the purposes of the appeal. An Information Leaflet setting out the appeals process is enclosed.
If you do not appeal this decision within fifteen working days of the date of this letter, the report of the findings on your application will be forwarded to the Minister for Justice, Equality and Law Reform, together with the recommendation that you should not be declared a refugee. The Minister will then make a decision on your application having regard to the recommendation and will be in contact with you concerning your position in the State.
Yours Sincerely"
The response to this was made by letter dated 30th January 2001, from the Refugee Legal Service to the Higher Executive officer hereinbefore referred to, in the terms following:
"We refer to your letter dated 17th January last in relation to the abovenamed client and request that you reconsider the determination in this matter in the light of the recommendation of 1st September last of the Appeals Authority in which he stated 'I feel that the appeal should be allowed and the application should be sent forward for substantive consideration'."
The concluding correspondence in relation to the matter is contained in a letter of 31st January 2001, from the office of the Refugee Applications Commissioner and is in the terms following:
"I refer to your fax of 30th January 2001 in relation to the above-named client.
Following the Appeals Authority's recommendation, substantive consideration was given to this case on 14th November 2000, in accordance with the Procedures for Processing Asylum Claims which were in place up to 19th November 2000. Subsequently, a recommendation was issued on 17th January 2001.
If you wish to appeal this recommendation you should do so before 7th February 2001. Any submission you wish to make on behalf of your client should be addressed to the Refugee Appeals Tribunal."

THE CASE OF I. AND V. L.
The Applicants are husband and wife, who, with their accompanied minor (a daughter Anna), entered this
State on 8th June 2000, by ferry to Rosslare from Cherbourg in France. The husband was in possession not only of a Ukrainian passport (for they were Ukrainian nationals), but also a false Lithuanian passport. He apparently held a Schengan visa. For ease of reference, I shall record events as relevant to the husband. He completed a Preliminary Questionnaire for Dublin Convention purposes on arrival and gave his reason for seeking asylum in Ireland (as recorded) the following:
"Applicant worked as an Immigration Officer in Ukraine. He was working under cover on a smuggling ring in Ukraine. He found out about the operation and he reported it. He was warned by his superiors to leave the matter. As he had already reported it, he refused. His wife and daughter were threatened and Applicant was held for three days. It turned out that this smuggling was organised by government and he had to get out or he would be killed. They heard shots at their house and came out to find their dog shot. They felt this was a warning of worse to come."
It was also noted at this time that he had paid $15,000 to be smuggled out. The false Lithuanian passports were provided in France. The Applicants were refused leave to land under the Aliens Act and orders, as they were not the holders of a valid Irish visa. An application for refugee status questionnaire was completed on 8th June 2000, in which the reason for seeking asylum was more fully set out than that recorded for the Dublin Convention purposes. The Applicant attended for interview on 27th June 2000, and he acknowledged receipt of the extensive interview notes (23 pages) on the same day.
The application for refugee status was considered under the Hope Hanlan Procedures then operative. assessment of and recommendation on the application was made by Mr. Gerard Flynn (who had interviewed the Applicant), he came to the conclusion that the application was manifestly unfounded, under paragraphs 14(a), (b) and (c) of the Hope Hanlan Procedures. This recommendation was submitted to a Mr. O'Mahony, who, on 8th August 2000, recommended as follows:
"This Applicant's substantial claim is unconvincing. It is, I think, reasonable to assume that, after ten years.experience in the Customs Service, he came across several cases of attempted smuggling and other nefarious scams. I cannot believe that, on discovering an alcoholsmuggling plot last February, he would stand on his integrity by refusing to turn a blind eye even when the lives of his wife and only child were threatened. Besides, since the only evidence he had was stolen from his house, his superiors could safely bury the case, along with his credibility, should he try to persist with his allegations'.
Other aspects of his account are contradictory and inconsistent and the evidences froml~ages 28 and 32 of his passport proves that he was not hiding out in Odessa from February till the end of May, as he has claimed. I agree with Mr. Flynn's analysis and his conclusion that this claim is manifestly unfounded. Para 14(a), (b), (c) to apply."

A letter dated 21st August 2000, addressed to the Applicant, stated that it had been determined that
the application for refugee status was manifestly unfounded on the grounds that:
"Your application does not show on its face any grounds for the contention that you are a refugee. You gave clearly insufficient details or evidence to substantiate the allegation. Your reason for leaving or not returning to your country of nationality does not relate to a fear of persecution."
The Applicant's response to this was to exercise his right of appeal through the Refugee Legal Service in a letter dated 29th August 2000. The grounds of appeal (inter alia) seek to have the matter:
"... readmitted to the full procedural hearing process to ensure that the fact finding process is fully explored in order to properly determine whether or not the Applicant is a refugee within the meaning of the Act and Convention."
The appeal became the subject of a recommendation by the Appeals Authority dated 3rd October 2000 -- the designated member of the Authority taking the view that the appeal should be allowed or that the matter should proceed to a substantive hearing.
The Deciding Officer of the Respondent Minister, having considered the recommendation of the Appeals
Authority, decided to overturn the original decision and grant the appeal -- this information is contained in a letter of 25th October 2000. The same letter to the Applicant went on to state:
"An officer from the Processing unit of the Asylum Division will be in touch with you in the near future with regard to the substantive consideration of your asylum application."
By a note of the same date, addressed to a Mr. Joe Gavin, Assistant Principal, Case Processing A, the Asylum Appeals Unit notified him that the Deciding Officer had decided that the file(s) should be resubmitted to Case Processing A to be considered substantively -- the note is headed "Re: I. and V. L. - Ukrainian Nationals".
On 14th November 2000, Mr. Gavin noted his decision recommendation, in the following terms:
"I have examined the file having had regard to the recommendation of the AA and the decision of the Deciding Officer. I have given these cases substantial consideration and am satisfied that the Applicants are not entitled to refugee status. Letters of refusal to issue."
The Refugee Act 1996 became operative (to the extent germane to these cases) on 20th November 2000.
                   The Refugee Applications Commissioner wrote to the Applicant in the following terms on 21st January
2001:
"Dear Mr. L.,
I am directed by the Refugee Applications Commissioner to refer to your application for a declaration as a refugee. Your application is being dealt with in accordance with the provisions of the Refugee Act 1996 (as amended). Details of the procedures provided for in that Act are set out in the 'Information Leaflet for Applicants for Refugee Status in Ireland'. You have already been provided with a copy of this leaflet. Copies are also available from the office of the Refugee Applications Commissioner, 79/83 Lower Mount Street, Dublin 2.
The determination of your application was made prior to 20th November 2000, and was undertaken under the Procedures for Processing Asylum Claims which were in use up to 19th 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 of and report on your application, the Refugee Applications Commissioner proposes to furnish a recommendation to the Minister for Justice, Equality and Law Reform that you not be granted a declaration of refugee status. I enclose a copy of the investigation of and report on your application together with information used in regard to your application.
You may appeal against this recommendation within fifteen working days of the date of this letter. Your appeal must be submitted on the enclosed Notice of Appeal to the Refugee Appeals Tribunal, 6/7 Hanover Street, Dublin 2, and the grounds for the appeal must be specified. A copy of all supporting documentation/ evidence relating to your application must also be furnished to the Tribunal with your Notice of Appeal. The Notice of Appeal must specify the grounds for the appeal and also indicate whether you wish the Tribunal to hold an oral hearing for the purposes of the appeal. An Information Leaflet setting out the appeals process is enclosed.
If you do not appeal this decision within fifteen working days from the date of this letter, the report of the findings on your application will be forwarded to the Minister for Justice, Equality and Law Reform together with the recommendation that you should not be declared a refugee. The Minister will then make a decision on your application having regard to the recommendation and will be in contact with you concerning your position in the State."
The correspondence concluded by the Refugee Legal Service complaining that the Applicants had not been re-interviewed and that, in effect, the Refugee Appeals Commissioner was not entitled to make a decision by way of recommendation without first re-interviewing the Applicants. In the events, an appeal was lodged within time to the first instance decision which was stated to be without prejudice to these judicial review proceedings.
While the facts in these cases differ, the underlying questions are similar. Having carefully considered the Supreme Court decisions in Z -v- The Minister for Justice, Equality and Law Reform & Ors (1st March 2002), and more particularly The Minister for Justice, Equality and Law Reform and the Refugee Appeals Commissioner -v- U (28th February 2002), I am satisfied and find as a fact and as a matter of law that given the circumstances and facts of the cases, there was no obligation on the Refugee Appeals Commissioner to re-interview the Applicants, notwithstanding the recommendation of the Appeals Authority in each case. It may very well be that the Applicants had considered that in the light of the outcomes of the appeals that they would be re-interviewed, but in my judgment no such necessity arises. The effect of the decisions recommendations of 14th November in each case triggered rights of appeal, but there were decisions made prior to the coming into effect of the Refugee Act 1996 as amended. The decisions, therefore, were not decisions under the accelerated process with the connotations of being cases that were manifestly unfounded, but simply decisions made that the Applicants were not entitled to refugee status. In the judgment of the Supreme Court in U, delivered by Murphy J (page 10), he states as follows:
"... the Hope Hanlan Procedures and those under the 1996 Act were designed to give effect to the Geneva Convention which enjoins prompt determination of applications. It was argued that it was that consideration which influenced the Oireachtas to salvage, as far as practicable, the proceedings taken under the Hope Hanlan Scheme for the purposes of the 1996 Act, rather than duplicate them. The wisdom of this course is reinforced by the fact that the different procedures may be operated by the same officials."
"There are significant differences between the details of the Hope Hanlan Procedures and that provided by the 1996 Act. It would be impossible to equate with precision acts done under the different procedures. On the other hand, one can readily identify the broad thrust of what is required. It is essential under both schemes to gather information from the Applicant as to his personal history and the circumstances which compelled him to leave his country of origin. Any information so supplied, insofar as it related to political or historical matters generally, could be tested against information provided from other sources. A view had to be taken as to the accuracy of this information supplied and, perhaps, the credibility of the person making an application. Ultimately, a decision was required to be taken. Under the Hope Hanlan Procedures, the decision of the Minister to refuse or allow the application could be given either as a preliminary to an appeal or as a final decision subsequent thereto. Under the 1996 Act, the decision which falls to be made by the Commissioner following upon investigation takes the form of a recommendation which may or may not be favourable to the Applicant. That decision/recommendation likewise triggers off a right of appeal. Accordingly, though the persons arriving at the particular conclusion are different officers and their conclusion is described in different terms, the function which they exercise is similar."
"I have no doubt that an unfavourable or negative (as it is described) decision taken by an authorised officer of the Minister for Justice is a step in the asylum seeking process which is equivalent to, and for the purposes of the 1996 Act must be equated with, a decision -- in the form of a recommendation -- of the Commissioner under Section 13 of the 1996 Act. If the position were otherwise, the Commissioner would be required to carry out an independent investigation of the application which would merely duplicate that which has already taken place. It seems to me that this is precisely the mischief which the transitional provision seeks to avoid. The fact that officials operating the Hope Hanlan Scheme did not use the terminology envisaged by it or elided the procedures by permitting different functions to be carried out by a lesser number of officials than might otherwise have been the case could not, in my view, alter the substantive nature of the duties performed by them or constitute inadequate compliance with the scheme."
In my judgment, when Mr. Gavin addressed his mind, in November 2000, to the files in these respective cases he did so in the knowledge that it was not open to him, the appeal to the Appeals Authority having been successful, to make a return of 'manifestly unfounded'. On the evidence in the documents placed before the court, I am not prepared to hold that there was no evidence upon which he could have come to the view which he did and, accordingly, refuse to leave to apply for judicial review for an order of certiorari in respect of the decisions of 17th January 2001, in the case of Dolinski, and of 21st January 2001, in the case of L. In my judgment, this case is quite distinguishable from Stefan -v- The Minister for Justice, Equality and Law Reform (13th November 2001, Supreme Court). Furthermore, I do not consider that the Applicants were entitled to any case based on legitimate expectation in the light of the letters written to them respectively in October 2000. What they were entitled to expect was that the Refugee Appeals Commissioner could not operate the accelerated procedure. There was no inhibition on the Commissioner in exercising his discretion in treating the matter as a substantive application to come to the view that he did. Accordingly, I refuse leave to apply for judicial review in respect of both cases. The decisions of the Refugee Appeals Commissioner did give rise to rights of appeal which in the light of the period that has transpired between the said decisions and the termination of these proceedings warrants an extension of time in which to appeal of fourteen days from the date of the delivery of this judgment.