SECTION 5.

The following amendment was moved on Wednesday, 29 January 2003:

Government amendment No. 15:

In page 6, between lines 30 and 31, to insert the following paragraphs:

"(b) in section 9, by–

(i) the substitution in subsection (2) of the following paragraph for paragraph (b):

'(b) the date on which his or her application is withdrawn or deemed to be withdrawn under this section or section 11, or',

(ii) the substitution of the following subsection for subsection (4A) (inserted by the Illegal Immigrants (Trafficking) Act 2000):

'(4A) (a) An applicant shall inform the Commissioner of his or her address and of any change of address as soon as possible.

(b) Where 5 working days have elapsed since the making of an application for a declaration and the applicant has not informed the Commissioner of his or her address, the application shall be deemed to be withdrawn.',

(iii) the substitution in subsection (7) of 'subsection (4), (4A) or (5)' for 'subsection (4) or (5)',

(c) in section 11 (inserted by the Immigration Act 1999) by–

(i) the insertion in subsection (1) before 'section 9' of 'this section or',

(ii) the substitution in subsection (8) of the following paragraphs for paragraphs (e) and (f):

'(e) the duty of the applicant to co-operate with the Commissioner and to furnish information relevant to his or her application for a declaration,

(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with this subsection including the possibility that his or her application for a declaration may be deemed to be withdrawn and that the Minister may refuse to give the applicant a declaration ,

(g) the possible consequences of the failure of the applicant to attend an interview under this section.',

(iii) by the substitution of the following subsections for subsection (9) (inserted by the Immigration Act 1999):

'(9) An applicant may withdraw his or her application for a declaration by sending notice of withdrawal to the Commissioner.

(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in the opinion of the Commissioner is reasonable in the circumstances, his or her application shall be deemed to be withdrawn.

(11) Where–

(a) it appears to the Commissioner that an applicant is failing in his or her duty to co-operate with the Commissioner or to furnish information relevant to his or her application for a declaration, or

(b) the Minister notifies the Commissioner that he or she is of opinion that the applicant is in breach of subsection (4), (4A) or (5) of section 9,

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.',

(d) in section 13, by–

(i) the insertion of the following subsection after subsection (1):

'(1A) Where an application for a declaration is withdrawn or deemed to be withdrawn pursuant to section 9 or 11, then–

(a) any investigation under section 11 shall be terminated,

(b) the report referred to in subsection (1) shall state that the application has been withdrawn or deemed to be withdrawn, as the case may be, and shall include a recommendation that the applicant concerned should not be declared to be a refugees, and

(c) no appeal under section 16 shall lie against a recommendation under paragraph (b).',

and

(ii) in subsection (3), by–

(I) the insertion after 'includes a recommendation' of '(other than a recommendation pursuant to subsection (1A))',

(II) the insertion of the following paragraph after paragraph (d):

'(e) Where a report under subsection (1) includes a recommendation pursuant to subsection (1A) that the applicant should not be declared to be a refugee, the Commissioner shall, as soon as may be, furnish the report to the Minister.',

(e) in section 16, by–

(i) the insertion in subsection (1) after 'a recommendation of the Commissioner under section 12 or 13' of '(other than a recommendation pursuant to section 13(1A))',

(ii) the substitution of the following for subsection (2A):

'(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.

(2B) Where–

(a) it appears to the Tribunal that an applicant is failing in his or her duty to co-operate with the Commissioner or to furnish information relevant to his or her appeal, or

(b) the Minister notifies the Tribunal that he or she is of opinion that the applicant is in breach of subsection (4), (4A) or (5) of section 9,

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.',

(iii) the substitution of the following subsection for subsection 9:

'(9)(a) An applicant may withdraw his or her appeal to the Tribunal by sending notice of withdrawal to the Tribunal and the Tribunal shall, as soon as may be, notify the Minister and the Commissioner of the withdrawal.

(b) Where an appeal is deemed to be withdrawn pursuant to subsection (2A) or (2B), the Tribunal shall, as soon as may be, notify the applicant, his or her solicitor (if known), the Minister and the Commissioner of the withdrawal.',

(f) in section 17, by the insertion of the following subsection after subsection (1):

'(1A) Where an application is withdrawn or (other than pursuant to section 22) deemed to be withdrawn, or an appeal under section 16 is withdrawn or deemed to be withdrawn, the Minister shall refuse to give the applicant a declaration.'.".

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.

Amendment to amendment, by leave, withdrawn.

Níl

Tellers: Tá, Senators Minihan and Moylan; Níl, Senators O'Meara and Tuffy.

Amendment, as amended, declared carried.

Amendments Nos. 16 to 18, inclusive, not moved.

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.

Amendment, by leave, withdrawn.

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.

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.

I have no reason to anticipate that either the commissioner, Bernice O'Neill, or the chairman, P. J. Farrell, will be the subject of any of these provisions. I pay tribute to the immensely hard work they do and the public spirit in which it is done.

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 15 makes clear that the tribunal chair can prioritise cases as he or she thinks fit, based on the criteria set out at the paragraph already set out either expressly or by implication in the existing provisions of the Act relating to the commissioner's functions.

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.

Progress reported; Committee to sit again.