Thursday, 30 January 2003
Immigration Bill, 2002: Committee Stage (Resumed).
(f) the obligation of the applicant to comply with subsections (4), (4A) and (5) of section 9 and the possible consequences of non-compliance with this subsection including the possibility that his or her application for a declaration may be deemed to be withdrawn and that the Minister may refuse to give the applicant a declaration ,
(10) Where an applicant does not attend for interview with an authorised officer under this section on the date and at the time fixed for the interview then, unless the applicant, not later than 3 working days from that date, furnishes the Commissioner with an explanation for the non-attendance which in the opinion of the Commissioner is reasonable in the circumstances, his or her application shall be deemed to be withdrawn.
the Commissioner shall send to the applicant a notice in writing inviting the applicant to indicate in writing (within 10 working days of the sending of the notice) whether he or she wishes to continue with his or her application and, if an applicant does not furnish an indication within the time specified in the notice, his or her application for a declaration shall be deemed to be withdrawn.',
'(2A) Where an applicant fails, without reasonable cause, to attend an oral hearing under subsection (10), then unless the applicant, not later than 3 working days from the date fixed for the oral hearing, furnishes the Tribunal with an explanation for not attending the hearing which the Tribunal considers reasonable in the circumstances his or her appeal shall be deemed to be withdrawn.
the Tribunal shall send to the applicant a notice in writing inviting the applicant to indicate in writing (within 10 working days of the sending of the notice) whether he or she wishes to continue with his or her appeal and, if an applicant does not furnish an indication within the time specified in the notice, his or her appeal shall be deemed to be withdrawn.',
I move amendment No. 27 to amendment No. 15:
After paragraph (e) (ii), to insert the following new subparagraph:
"(iv) the insertion after subsection (3) of the following subsection:
'(3A) The Tribunal may extend the time for appeal under this section if reasonable cause is shown by the appellant.'.".
It would be reasonable to extend the time of appeal in this manner. I would like to hear the Minister's comment.
This amendment is opposed. The period within which to make an appeal against a recommendation under section 12 of the Refugee Act 1996 is currently ten working days from the sending of the notice of the recommendation. In the case of a negative recommendation on an application investigated under section 11 of the 1996 Act it is 15 working days from the date of the notice of the recommendation, in other words, two and three full working weeks, respectively, with weekends and public holidays excluded.
An applicant is aware from the time he or she receives the information leaflet at the start of the process of the time limits involved. Nothing is hidden in that regard. I do not think the United Nations High Commissioner for Refugees would jump for joy at the news that what was being advocated was that, notwithstanding the obvious lack of merit of a claim as established by an independent investigation, the further time and resources of an oral hearing were to be extended at appeal stage.
In this Bill I intend to bring forward further amendments to the Refugee Act 1996, among which will be proposals for an accelerated procedure for dealing with certain categories of applications. My proposals will radically replace the current provisions for manifestly unfounded applications in section 12 of the Act. While the final details of this are still being worked out between my Department and the parliamentary counsel and have yet to be brought to Government, I assure Senators that oral hearings for obviously baseless claims will not feature large.
I move amendment No. 28 to amendment No. 15:
After paragraph (e)(iii), to insert the following subsection:
"(iv) the insertion in subsection (14) after 'private' of 'unless the appellant so requests'.".
The purpose of this amendment is to allow the applicant to decide whether the media should be present at a hearing.
The effect of this amendment would be to allow oral hearings to be conducted in public where the applicant so requested. Senators will be aware the Bill already contains an amendment to section 19(2) of the Refugee Act 1996 that removes the requirement for ministerial consent to publish or broadcast any matter likely to identify the person as an applicant. It will no longer be the case that any organisation that broadcasts material concerning an applicant requires my consent. However, the requirement to obtain the consent of the applicant remains.
There are good reasons that the oral hearing should remain private. The oral hearing is conducted as informally as possible. The applicant is encouraged to state his or her case openly and freely. The commissioner's representatives will present relevant points from the investigative process. Witnesses may be called and questioned. The hearing is presided over by a member of the tribunal who is, of course, independent in his or her functions. The applicant will usually have legal representation and the UNHCR may have representatives in attendance if it so wishes.
I do not believe it is in anyone's interests, particularly those of the applicant, if the public or the media is invited by the applicant to see how the proceedings are carried out. The nature of these occasions is not the administration of justice in courts established by law under the Constitution; they are informal and proceed subject to law. In the great majority of cases they proceed with lawyers present. The UNHCR can attend if there is any concern about the quality of the proceedings. I do not think making a public circus of the proceedings is a good idea.
Amendment to amendment, by leave, withdrawn.
I move amendment No. 19:
In page 6, paragraph (b) between lines 37 and 38, to insert the following:
"and by the insertion after subsection (5) of the following subsection:
'(6) Notwithstanding anything in this section the Tribunal shall make available to the public copies of its decisions regarding appeals under this Act with any publicly identifying information deleted unless the appellant so requests'.".
The purpose of this amendment is to ensure decisions of the tribunal would be made available to the public to ensure they were open and transparent and that the public was aware of what decisions were made. That would be reasonable while at the same time protecting the identities of applicants. Will the Minister comment?
It is my understanding that the tribunal already has within its discretion the power to publish decisions, if it so wishes, with sufficient details obscured to preserve the anonymity of applicants. The effect of the amendment would be to require the tribunal to make available to the public copies of its decisions on appeals with identifying information deleted unless the applicant were to request otherwise. Every decision made by the tribunal would have to be the subject, after it was delivered, of an extensive process whereby all the detail which could tend to identify the person in question would be removed. Some may think that is a simple task of looking for Christian names and names of villages or whatever and identifying material of that nature. However, it would not be that simple because, in many cases, the facts of a claim of persecution would clearly identify a person and expose them to danger in their home country in certain circumstances.
The amendment would cover both successful and unsuccessful appeals. An immense amount of time would have to be put into re-editing every decision to ensure it could not embarrass the applicant. Bearing in mind that the subject matter of these applications contains immensely personal or highly political details and material which would, in the ordinary course of events, tend to identify a person to anyone who had an interest in the country of origin, the amount of public time that would have to be taken to go through each decision to reduce it to a form that could not embarrass the applicant would effectively be a huge misuse of public resources.
Bearing in mind that the advice available to me is that the tribunal is not excluded from publishing any or all of its decisions which it considers of sufficient legal or factual importance to bring to the public's attention, to cast an obligation on it to edit and produce a sanitised version of every decision which could not possibly embarrass anyone involved would be quite difficult to do. The Senator should also bear in mind that decisions of this nature could reject an allegation that someone in another state committed acts of an horrific nature which amounted to persecution. Bearing in mind that this State must protect not only the interests of the applicant but also those falsely accused by applicants of persecution, the balancing act involved in such an operation would be immensely difficult. Regrettably, I must oppose the amendment.
I move amendment No. 20:
In page 6, between lines 37 and 38, to insert the following:
"(c) in section 22 by the insertion after subsection (1) of the following subsection:
'(1A) An order under this section shall provide that an appeal shall lie to the Tribunal against all aspects of a decision to return a person to another state and shall provide that an appellant shall have a right to an oral hearing of the appeal'.".
There is a limited right of appeal to the tribunal which should be extended. I would like to hear the Minister's comments.
These amendments are opposed because they are fundamentally at odds with the nature of the Dublin Convention as an instrument for determining which EU state – now including Iceland and Norway – is the proper one to examine a specific asylum claim. Before a person may be transferred under the convention, the commissioner is obliged to examine the relevant provisions of the convention, especially Articles 3(7), 4 to 8, inclusive, and 10 (1)(d), to determine whether the asylum application should be examined in another member state.
Clear criteria are set out in the articles mentioned for determining the applicability of the convention to a specific case. If the commissioner determines that the application should be transferred to another member state, the agreement of that state to examine the application must be obtained before the person can be transferred there. This is effectively a legal decision and if a person was to object to it and say it was being made irregularly or in bad faith, he or she would have the option of seeking to challenge the decision of the commissioner in the courts. However, it is not proposed to complicate the operation of the convention further by introducing a domestic appeal process other than by judicial review by the courts in such cases.
The convention is thought by many to be of major practical import, but in a given year, fewer than 140 cases, either inwards or outwards, are dealt with. Ireland repatriates about 32 people to other states in a given year. In each case it is done with the consent of the other state. There is no need for a further layer of appeals process to be built into this procedure of transference.
The Senator may be interested in the following figures. In terms of operations under the convention, 39 people were referred to this State by other states, 35 from the United Kingdom, one from Finland, two from Norway and one from the Netherlands. Some 64 people were referred outwards by this country under the convention in 2002, 48 to the United Kingdom, four to Belgium, one each to Spain and Germany, two each to the Netherlands and France, one to Greece and five to Austria. We are dealing with a small number of cases per annum and, in each case, I remind the Senator that it is not only Ireland that decides under the convention the case should be an outward one or, in the case of a foreign decision under the convention, accept that it should be an inward one. In every case there is effectively an examination by two states of the position before anything happens.
In that context, it is sufficient for the High Court to be available to anybody who thinks the system is being used against them ultra vires or in breach of good faith. I have already signalled my intention to introduce further amendments to the Refugee Act, which will address the question of applications with safe third countries. Far from adding layer upon layer of delay and futile expense to the resolution of these issues, my proposals are aimed at robustly foreshortening the process and having the issue resolved quickly.
As the figures show, in the vast majority of instances we are only dealing with cases involving EU or EEA countries and with people who are going to member states of the European Union, in the main, with whom the procedure under the European arrest warrant is about to come into effect. We trust those countries and, therefore, this is not a final determination of whether somebody is or is not a refugee. This is simply a system for deciding on venue and we cannot put the full panoply of domestic applications into operation on a procedural jurisdictional point as to which country is appropriate for the application to be determined.
Amendment No. 24 questions whether Dublin Convention cases would warrant an oral hearing. If there are matters that need to be explored more fully at appeal, the Refugee Appeals Tribunal, which deals with these appeals, may, under article 7.5 of the Dublin Convention Implementation Order 2000, direct the commissioner to make such inquiries and to provide it with such further information as it considers necessary or expedient for the purposes of deciding an appeal. Applicants are transferred to a Dublin Convention country on foot of a deportation order which is made subject to the requirements of section 5 of the Refugee Act 1996. This is the obligation of non-refoulement.
To attempt to graft on to this process the notice provisions of section 3(3) of the Immigration Act 1999, as would be the effect of amendment No. 24, simply serves to delay the examination of the asylum claim. The person will not be returned to his or her country of origin, but will be transferred to a state where he or she will have his or her asylum application dealt with. The prolonged consideration of these cases serves no purpose and will only encourage abuse of the asylum process by those who engage in asylum shopping.
Under the Dublin Convention, if somebody is being moved from Ireland to another state, section 5 of the Act, which deals with non-refoulement, comes into effect. This is fundamentally a safety net preventing somebody from being seriously prejudiced by a radically different approach being taken to the issues of their claim in the other country. So the deportation order, which would be made and served in order to operate the Dublin Convention procedure, already takes into account the question as to whether they would be gravely prejudiced by the fact that they are being moved from one jurisdiction to another. To have an oral hearing in those circumstances is not necessary, particularly when the tribunal can ask the commissioner to carry out any further investigations if it considers the material before it is inadequate to decide on the matter.
Amendment, by leave, withdrawn.
Government amendment No. 21:
In page 6, between lines 37 and 38, to insert the following paragraph:
"(c) in section 24, by the insertion of the following subsection after subsection (6):
'(7) (a) The Minister may, after consultation with the Minister for Foreign Affairs, enter into agreements with the High Commissioner for the reception and resettlement in the State of refugees.'.".
Amendment agreed to.
Amendments Nos. 22 and 23 and amendment No. 1 to amendment No. 23 are related and may be discussed together by agreement.
Government amendment No. 22:
In page 6, between lines 37 and 38, to insert the following paragraph:
"(c) in the First Schedule (inserted by the Immigration Act 1999), by the insertion of the following paragraphs after paragraph 9:
'10. (1) Where the Commissioner is for any reason temporarily unable to act as the Commissioner or the office of the Commissioner is vacant, the Minister shall appoint a person to be the Commissioner for the duration of the inability or until an appointment is made in accordance with paragraph 1, as the case, may be, and the person so appointed may perform all the functions conferred on the Commissioner by this Act.
(2) A person appointed under this paragraph shall hold office upon such terms and conditions as may be determined by the Minister after consultation with the Minister for Finance.
11. The Commissioner may, if he or she considers it appropriate to do so in the interest of the fair and efficient discharge of the business of his or her office, determine the order in which different classes of such business shall be discharged having regard to the following matters:
(a) the grounds of the applications under section 8,
(b) the country of origin of the applicants,
(c) any family relationship between applicants,
(d) the ages of the applicants and, in particular, of persons under the age of 18 years in respect of whom applications are made,
(e) the dates on which applications were made."'.
These amendments make similar provisions in a number of significant respects regarding the Refugee Applications Commissioner and the chairperson of the Refugee Appeals Tribunal, respectively. Each has two purposes: they make provision for a situation where through some unforeseen circumstance the office holder is temporarily unable to carry out the functions of the office; and they set out to a greater or lesser degree of detail the powers of the office holder to manage the business of the office.
The provisions regarding a temporary stand-in are, in the case of the Refugee Applications Commissioner, in amendment No. 22 at the proposed paragraph 10 of the first schedule to the Refugee Act. The similar provisions for the chair of the Refugee Appeals Tribunal are in amendment No. 23, at the proposed paragraph 8, subparagraph (2). Provisions of this nature are to be found in much legislation governing the creation of public offices and the holding of those offices. Some that spring to mind are those of the Director of Public Prosecutions under the Prosecution of Offences Act 1974 and the members of the Ethics in Public Office Commission under the 1995 Act which established that commission.
It is not tempting providence to make statutory provision for the unlikely and undesired situation where either the commissioner or the chairperson of the tribunal would be laid low by accident or illness. However, certain critical functions under the Refugee Act must be carried out personally by the office holders in question and even a temporary unavailability of a couple of months could impact seriously on the ability of the commissioner's office or the tribunal to continue their respective important work of investigating asylum claims and considering asylum appeals. It is accordingly prudent that there should be the ability to appoint a substitute in each case.
The proposed provisions also deal with the event of either office becoming unexpectedly vacant through resignation, death, etc. The process of filling each of these positions involves running a Civil Service Commission competition. This is not simply an office in the gift of the Minister. Because it is an independent office, its independence is being underlined by the fact that the appointments process is carried out through the Civil Service Commission. That can take some time to set up and run, and in the meantime the work of the office may be piling up. Backlogs of work either at first instance investigation or on appeal are, as we can all agree, highly undesirable. It makes sense that the eventuality of the sudden vacancy should also be catered for in these amendments.
In amendment No. 23, paragraph 8 subparagraph (1) reproduces the current paragraph 8 with a minor amendment. The provision, as it stands, allows a replacement member of the tribunal to be appointed, but only to serve out the remainder of the term of the member being replaced. There is no particular benefit to be achieved by that arrangement, which might mean that someone could be appointed for a mere couple of weeks to replace a predecessor who had almost completed a three year stint before leaving office. There is no good reason that there should not be overlaps of membership.
Amendment No. 23 goes on to set out in some detail the management powers of the chair of the tribunal. The relevant paragraphs in the amendment are paragraphs 13 to 20, and I will give a brief commentary on each. Proposed paragraph 13 simply restates the current paragraph 13. Proposed paragraph 14 makes clear the chairman's function in ensuring that the tribunal's business is carried out fairly and efficiently at all levels, including the throughput of cases of the other members of the tribunal to which cases have been assigned. It gives a management function to the chair of the tribunal to make sure they are evenly assigned where that is appropriate or assigned to avoid backlogs where that is appropriate.
Proposed paragraph 17 enables the chairperson to issue guidelines and guidance notes on aspects of work of the tribunal. This will be most useful from a number of points of view as it will help to bring a greater degree of consistency to the work of the various members of the tribunal while, at the same time, fully respecting the obvious fact that each of them is independent in the decision making function he or she carries out. Guidance notes are a useful aid to practitioners representing asylum applicants and the staff of the tribunal and the Refugee Appeals Commissioner in enhancing the clarity and certainty of the appeals process on a procedural and functional level.
Another means of enhancing consistency of decision making and the operation of the Act among the membership of the tribunal is the power in paragraph 18 to convene meetings of the membership from time to time. Such meetings can engender a sense of collegiality and the convergence of views in a general way while still respecting the independence of each decision maker in the individual cases assigned to him or her.
Proposed paragraphs 19 and 20 provide for the preparation by the tribunal of annual reports and reports on a one off basis for submission to the Minister. These provisions are currently in place for the commissioner. Amendment No. 22 also provides powers for the commissioner to prioritise her caseload.
Senators will note that the provisions regarding the commissioner's management functions are not anything like as extensive in the amendment related to the commissioner as they are in the amendment related to the chairperson of the tribunal. The simple explanation for this is that much of the detail specified for the tribunal chair is already set out either expressly or by implication in the existing provisions of the Act relating to the commissioner's functions. It is also noteworthy that the relationship between the commissioner and her staff is quite different in nature from that between the tribunal chair and the other independent members of the tribunal. I commend the amendments to the House.