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SELECT COMMITTEE ON JUSTICE, EQUALITY, DEFENCE AND WOMEN’S RIGHTS debate -
Thursday, 26 Jun 2003

Vol. 1 No. 19

Immigration Bill 2002 [Seanad]: Committee Stage (Resumed).

SECTION 6.

I welcome the Minister for Justice, Equality and Law Reform, Deputy McDowell, and his officials. Amendment No. 32 and amendments Nos. 1, 2 and 3 to amendment No. 32 are related and may be discussed together. Is that agreed? Agreed.

I move amendment No. 32:

In page 8, paragraph (c), to delete lines 43 and 44 and substitute the following:

"(i) the substitution of the following subsection for subsection (1):

'(1) Where an application is received by the Commissioner under section 8 and the application is not withdrawn or deemed to be withdrawn pursuant to this section or section 9 or 22, it shall be the function of the Commissioner to investigate the application for the purpose of ascertaining whether the applicant is a person in respect of whom a declaration should be given.',

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

'(2) In a case to which subsection (1) applies, the Commissioner shall, for the purposes of that provision, direct an authorised officer or officers to interview the applicant concerned and the officer or officers shall comply with any such direction and furnish a report in writing in relation to the interview concerned to the Commissioner and an interview under this subsection shall, where necessary and possible, be conducted with the assistance of an interpreter.',

(iii) the substitution of the following subsection for subsection (3):

'(3)(a) The applicant concerned, the High Commissioner or any other person concerned may make representations in writing to the Commissioner in relation to any matter relevant to an investigation by him or her under this section and the Commissioner shall take account of any such representations made before or during an interview under subsection (2).

(b) The High Commissioner may, whenever he or she so requests, be present at an interview under subsection (2).’,

(iv) the deletion of subsection (6) and (7),".

I move amendment No. 1 to amendment No. 32:

In the proposed new section 11(2) of the Refugee Act 1996, in the third line, after "officers" to insert ", who shall as far as practicable be of the same gender as the applicant,".

Amendment No. 32 replaces subsections (1), (2) and (3)(a) and (b) of section 11 of the Refugee Act 1996 and deletes subsections (6) and (7) of that section. The changes are threefold. The references in the present subsection (2) to section 12 dealing with manifestly unfounded cases are not reproduced because amendment No. 46 will replace that section completely. The reference to remittal backup cases by the tribunal to the commissioner in the present subsection is not reproduced. That is because that possibility is to be removed by the combined effect of the new section 12, dealt with by amendment No. 46, the new section 13, which is dealt with in amendment No. 47, and the new section 16(2), which is dealt with in amendment No. 50. Finally, the new text takes account of the arrangements for dealing with withdrawn and deemed withdrawn applications already in the amendment to the Refugee Act contained in the Bill as it stands.

The changes in the new subsection (2) primarily have the effect, in conjunction with the proposed replacement of section 13, of simplifying the paper trail associated with the investigation of an applicant. This will work by confining the scope of the report to be made under section 11 to a report of the interview itself. The report to be prepared under section 13(1) will as a result of these changes contain the material regarding the other aspects of the investigation of the asylum claim which is at present provided for in the report under section 11. That will provide greater flexibility than at present for the commissioner to deploy her resources, but it will not otherwise affect the process.

New subsection 11(3), as inserted by this amendment, will have two effects. It will put on a statutory footing the right of the UNHCR representative to attend any interview under the section, which has heretofore happened only on an informal basis. Secondly, it will relieve the commissioner of the need to wait in every case for seven working days to elapse after interview before a recommendation on the application can be made. Matters which might have been raised in representations during that period can instead be raised on appeal where a negative recommendation is made. The proposed provision as worded does not prevent the commissioner from considering matters raised by representations made in the interval between the conduct of an interview and the making of a recommendation. It merely says that a period of seven days need not elapse as a matter of legal obligation in every case. In fact, representations made after the interview are made in very few cases and I see very little merit in delaying the progress of every case for more than a week in circumstances in which the provision is little used and where the right of appeal, in any event, more than satisfies the requirements of a fair procedure. This does not limit the right of the applicant or of the UNHCR to make representations at any stage in the process, nor does it prevent the commissioner from taking into account, if she can, representations made even after the interview has taken place. Common sense, however, dictates that if representations do not come in until after she has made her recommendation, she no longer has any means to take those into account. The proposed deletion of subsections (6) and (7) is consequential on inclusion and Government amendment No. 47 has similar provisions for section 13.

The effect of these two changes taken together will be to oblige the commissioner to supply the applicant with copies of documents submitted in the course of investigation in any case where there is a negative decision that can be appealed instead of in every case, irrespective of the outcome, as happens at present.

Some aspects of this are welcome. Subsection (3)(a) is improved because the High Commissioner or any other person concerned may make representations to the commissioner in relation to any matter relevant to an investigation under the section and the commissioner shall take account of any such representation made or during an interview.

Even more importantly, the High Commissioner may, whenever he or she so requests, be present at an interview under subsection (2). That is a valuable precaution and should be welcomed by the High Commissioner.

I am concerned about the manner in which subsection (2) deals with an interview taking place. This is a new procedure when there is an investigation of an application by the refugee applications commissioner. It includes the phrase that an interview "where necessary and possible, be conducted with the assistance of an interpreter". What is the value of an interview if the person cannot communicate? Can an interview be held in any sense of the word if someone speaks a different language? Surely an interpreter should be an essential requirement if we are to fulfil the conditions of the convention in relation to having an interview with the commissioner. Someone should be able to translate if a person cannot communicate in a language spoken here.

There are in excess of 100 nationalities in the asylum process and the right to interpretation where necessary and possible is enshrined in the Refugee Act 1997.

I am aware of that.

Interpretation will always be provided where practicable and possible, having regard to the fact that for certain languages there are limited numbers of interpreters available in the State. For certain dialects in South America or other places, it would be impossible to guarantee that an interpreter could be found. I agree with Deputy Costello but there are circumstances where it is possible to communicate as best one can through a third language. I do not want to be in the position where a person says that he or she speaks a rare Himalayan dialect and refuses to deal with me through Nepalese or Hindu in which they could also be understood.

I assure Deputy Costello that we do not dispense with interpreters to suit ourselves. If an Irish person presented himself in another country and insisted that his native language was Irish, they might say that they think he is able, however inadequately, to communicate through English. In such circumstances, to bind ourselves to the proposition that there will always be an interpreter would be a mistake. In many larger countries tribal dialects exist and I cannot bind myself to the proposition of an interpreter in the chosen language of the person in every case.

I would not ask the Minister to do that. It would not necessarily be the chosen language of the person but there should be a requirement for an interpreter who can ensure there is substantial communication between both parties.

An interview does not take place if people cannot understand each other.

That is my point. The amendment only states "where necessary and possible". Is the Minister satisfied that every situation is covered by that? Surely an interpreter is necessary in all cases where the language is not English or Irish. The legislation is silent on what happens if it is not possible to find an interpreter. It should be a requirement that there is an interpreter - not necessarily of the chosen language, but someone who is capable of ensuring there is communication.

Has this situation arisen where an interpreter has not been available? Is it the case that interviews are postponed or a person is detained for a period? How regularly does this scenario arise?

The Department does its best in every case. In some cases people are brought over from Britain because there are not people who speak every dialect available in Ireland. The Deputy can be assured that the standard "where necessary and possible" is a very high one. The alternative is to say "even though impossible" and I could not possibly put that in the Bill.

So the interview goes ahead anyway?

If it is impossible to get an interpreter, the interview would not have much content. In those cases every reasonable step is taken to ensure the interview can take place. If someone claims that we cannot get through to him in any way, by this stage he will have claimed asylum and he must have been able to communicate with us in some way to do that. We are debating the number of angels who can dance on the head of a pin. The reality is that an interpreter is always provided unless for some extremely unusual reason it is impossible to find one.

Is the Minister saying that this does not arise as a problem?

Not in practice.

Amendment No. 1 to amendment No. 32 seeks in the proposed new section in the third line, after "officers", to insert "who shall, as far as practicable, be of the same gender as the applicant,". It seems an obvious suggestion but situations have occurred where male interviewers have inquired about detailed aspects of sexual assault in countries with practices different from Ireland.

There can be vastly different cultural experiences and norms for non-nationals who come here and we should, as far as it is possible, ensure a person of the same gender conducts the interview. This would avoid embarrassing situations that might arise in relation to alleged sexual assault or sexual mutilation. Such topics could cause distressing scenarios and this has occurred in the past. I do not know why we could not insert an amendment that would direct an authorised officer or officers, who shall, as far as practical, be of the same gender as the applicant, to conduct the interview with the applicant.

I am not disposed to accept this amendment for a number of reasons. First, on a lot of occasions husbands and wives are interviewed at the same time, so the mind boggles as to what kind of interviewer Deputy Costello has in mind. Second, of course there are occasions where people are alleging female genital mutilation or sexual assaults on them. To be honest, in practice many of those cases are sent to persons of the same gender. I do not want to introduce a legal obligation to do that.

There are often mixed questions involving these and other issues. These may not be the only issues in relation to a particular case. We have to be reasonable here. If one goes before the District Court in relation to a sexual assault case, one does not choose the gender of the judge——

This is a different matter. This is an individual, on a one-to-one basis.

This is a constraint that I do not intend to bring into the system. The common sense of the commissioner, Bernice O'Neill, can be relied upon in all these matters. It is not reasonable that women applicants should have women interviewers as of right. This frequently is the case in reality, but I am not going to make it a right. The workload in any particular period may well make it impossible to do that.

I am not proposing that it be there as of right, full stop. I am proposing that interviewers be of the same gender of the applicant as far as is practicable. That is the usual formula that is put into legislation to ensure that if one is unable to fulfil the desirable requirement, the provision is sufficiently flexible to provide an opportunity to opt out - in this case, whereby the interviewer would not necessarily have to be of the same gender. However, the Minister does need to enshrine in legislation that a reasonable effort should be made to ensure that somebody of the same gender would conduct the interview. There have been some very distressing situations in the past. It has happened.

There are a minority of situations of the type the Deputy is talking about but I do not see why a competent solicitor or barrister appointed to the tribunal or a competent civil servant in the commissioner's office should not interview a Nigerian male, for instance, if she happens to be a woman——

That is why I am putting down the amendment.

Hold on a second. The Deputy's amendment states the exact opposite - that a woman cannot, in normal circumstances, interview a Nigerian male about the political situation in Nigeria.

I said that the interviewer "shall, as far as practicable, be of the same gender" as the applicant.

Yes. The Deputy is saying effectively that a Nigerian man who claims to be the subject of political threats to his life as a result of political activity in Nigeria cannot be interviewed by a woman.

I am not saying that. I am saying that as far as practicable, the interviewer should be of the same gender.

Why should we produce a male only? This would produce grotesque results. A woman who knows about the political situation in Nigeria could enter a room to interview a man who claims that he is being persecuted as a result of his participation in a previous Government that was removed in a coup, only for that woman to be told that she is not really suitable under the Act to deal with a male and that a man will be brought in to do so. That is not reasonable.

What about in circumstances which could cause embarrassment to an individual?

There are such cases, and it is an in-house policy that this is done anyway. However, I do not want to make a dog's dinner of the Act. I do not want a situation whereby a male Nigerian has to be interviewed by an Irish male when no aspect of sexuality or gender is relevant to the case at all. One could then have a situation where people from certain faith groups do not like having anything to do with women as such.

There are certain world cultures in which men regard themselves as entitled to deal with a man only. I have been in places where one does not bring a woman even on a diplomatic mission. The female members of the team are left behind in the hotel. We cannot reflect those kinds of attitudes in our law. These peopleare coming to Ireland because we are Irish,not because we are a reflection of their own society.

We will not dwell too much longer on this. When an interview is being conducted, however, a considerable number of personal details will be sought, particularly when the case relates to persecution. A lot of persecution involves physical assault of one sort of another, and very often physical assault on a woman takes the form of mutilation or sexual assault. It is not as though we are dealing with ordinary, run of the mill citizens. We are dealing with a particular category of citizens who are claiming to have suffered persecution. A disproportionate number of them, particularly in the case of women, will be alleging that particular practices or assaults took place.

We have to formally try to take that into consideration. I do not know if there is a code of conduct in the Department of Justice, Equality and Law Reform that gives guidelines, instructions or directions as to how cases should be dealt with where it is fairly obvious that the situation could be quite distressing, very personal and so on. It is not quite good enough for the Minister to leave it entirely open. We need to have something here that gives a direction on how to handle an interview in a proper, courteous and humane fashion.

I do not want to spend much more time on this but the term "as far as practicable" means something in law. It means that one must take every practical step to bring it about. The Deputy's proposal is that men will only be interviewable by men, as far as practicable, and that women will only be interviewable by women, as far as practicable. That is the objective meaning of this amendment and what I am dealing with here.

If the Deputy is suggesting something different, if he is suggesting that it would be appropriate that cases involving highly sensitive matters be heard by an officer of one gender rather than another, I can assure him that this is already the practice in the Office of the Refugee Applications Commissioner. They do not try to embarrass people.

Just because a refugee applicant is a woman does not mean, in the great majority of cases, that there is a gender specific angle to her application. Frequently a family moves as a unit to Ireland to escape persecution in places such as Kosovo. There may well have been a rape or some other angle to a Kosovan application for asylum seeking. In those circumstances, nobody is embarrassed by our system. However, there are other cases, Romanian males who claimed they were homosexual and because of homophobia in Romania wanted to come to Ireland. That may sound strange but it was the basis of a number of asylum applications. Who would the Deputy want in such cases - a man or a woman?

The Deputy's proposal would disimprove the Bill significantly and make it difficult to operate. It would also rob us of the expertise of many women who have experience of general political issues and ask them to excuse themselves from cases in which they would be perfectly competent to deal with the issues in question, on the basis that the person with whom they are dealing is of the wrong gender. That is not a good idea.

It is my intention to make the situation better, not worse. The last thing I want is to rob the system of women interviewers. They would probably conduct the interview in a more sensitive fashion than men. The spirit of what I am trying to do is to recognise that in highly sensitive situations it would be desirable that women would not be interviewed by men. I asked the Minister if he would give us some indication of whether there are guidelines and what sort of criteria operate within his Department to deal with a situation like this. Has it been recognised as an issue and are there guidelines to deal with it?

I understand that the Refugee Applications Commissioner is conscious of this issue and takes steps to deal with it. Training is provided for interviewing vulnerable groups, including gender sensitive training. That is being done under the auspices of the UNHCR. There are 300 staff in the Office of the Refugee Applications Commissioner so we do have the flexibility to deal with these eventualities and where gender issues are likely to be relevant we follow a general rubric in that office that as far as possible there is the same gender. It is hard to put into law what the Deputy is trying to achieve but it is already de facto the case.

The Deputy asked whether there were written guidelines or a code of practice.

There is a training programme. I do not know whether it specifically covers this.

If it is not covered in the programme could the Minister ensure that it is reflected?

I will relay the Deputy's concerns to the commissioner who is an independent person. If she considers it necessary to reduce it to writing I am sure she will.

Deputy Costello has already addressed amendment No. 2 to amendment No.32.

No I have not.

I thought the Deputy said it was very good and that he was delighted it was included.

No, I did not. I am happy with that aspect of it but I was concerned about the procedure whereby the power of an applicant to come back seven days after the interview with further documentation and information has been repealed as part of that section. It is taking away a right. I can understand the Minister's point about streamlining the procedure and that people should not have an opportunity to come back a second time with further documentation but that existed in the old legislation which is being repealed. Would the Minister comment on that?

What I am trying to do is to make the system work efficiently. It will add considerably to the process if an officer in ORAC, who has just heard a case and has the details fresh in his or her mind and the notes to hand, must put the case away for seven working days, and then take it out again because something may have arrived in the meantime. Seven working days is ten days really because a weekend is bound to intervene. Material of that kind submitted before the decision is made in a case, which will usually be a matter of a few working days, will be considered as a matter of fact. If the decision is made and the material comes in it will be available for the purpose of an appeal if the decision is going against the person in question. Seven working days is ten days and it adds a fortnight to every case. Only in a minority of cases does anything actually come in. In reality this is an unnecessary lengthening of the process.

In how many cases is it used?

In a tiny handful of cases.

It seems to me——

I would imagine that it is less than 5% of cases.

It appears that when the interview is taking place the person, and maybe the solicitor if he or she has one, could review the position and might want to put in some final documentation immediately afterwards to tidy up loose ends. This could be part of the final adjudication. Not everything would be known until the interview took place and there would be an opportunity in the next couple of days for the applicant and the legal adviser to submit any final letter or documentation that would tidy up the submission. That might be a useful way of finalising the case.

The Deputy is right in the sense that if at the end of a hearing the solicitor for the applicant were to say that having heard how it went he or she had some extra material, in every case the deciding officer would as a matter of course ask for the material to be submitted by a certain date. If the next day the RLS person were to phone and say he or she had material to show the officer, that would be accepted. We should consider the opposite situation in which somebody manifestly either is entitled to refugee application status or is not. If the case is completely cock-eyed, the idea that somebody has to wait effectively for a fortnight, or seven working days which covers a weekend, before making a decision only adds to the complexity of the case. If one is going to grant status why wait all this time or if it is obvious that one is not going to grant status why wait an extra seven days in case things come through?

It is another aspect of the tightening up of procedures and the reduction of time and opportunity to ensure the applicant gets a good hearing. We have been talking about months and years of delay in processing applications. A week seems a short time and this is the crux of the issue. The person may not have a solicitor. There may be a few short days remaining to make the final submission that would deal with it because it may well be the end of the road.

The waiting time has contracted dramatically in the past year. The graph for waiting time is coming down. That is a good thing because if one is getting status one wants to be integrated into Irish society soon and work and look after one's family out of directly provided accommodation and the like. If not, equally, it is in the State's interest to clarify that as quickly as possible. I want a system that works and that works reasonably smartly. I do not want people hanging around in limbo for a long time with people saying they are being given the best and being kept out of work. I simply want a system that works where a decision is made in a reasonably expeditious way. It is in the interest of genuine asylum seekers that their status is recognised quickly. It is clearly in the interest of bogus asylum seekers that the system is ineffective. I favour the genuine asylum seekers.

The Minister does not have a list of such cases.

At present there are only 1,800 cases in the system covering six months. Most of them are at an advanced stage of processing. We are getting to the point where asylum seekers will have decisions on their status made in two to three months. That is the position we are going towards rapidly and when this Bill is enacted, it will be even faster than that.

We have to agree with the Minister on that point.

Is amendment No. 3 to amendment No. 32 being pressed?

Yes, I still believe this is the crux of where the decision on asylum applications is being made and there should be a little timescale to ensure that it could be tidied up if there was documentation that might come at a later stage.

Is amendment No. 1 to amendment No. 32 being pressed?

No, so long as there are training guidelines and that the Minister will look atthem——

The commissioner will be informed.

Amendment to amendment, by leave, withdrawn.

I move amendment No. 2 to amendment No. 32:

To delete the proposed new subparagraph (iii).

Question, "That the words proposed to be deleted stand," put and declared carried.
Amendment to amendment declared lost.

I move amendment No. 3 to amendment No. 32:

To delete the proposed new subparagraph (iv).

This amendment proposes to delete the subparagraph, which is the provision whereby the Refugee Appeals Commissioner is obliged to give the applicant any documents that he receives in the course of his or her inquiries. Again, this would seem to be a retrograde step where the applicant is not informed of what the interviewer knows in terms of documentation. It seems contrary to natural justice. How can one get a fair hearing if someone has a particular form of documentation that may be prejudicial to one's application and it is not communicated? It seems that the applicant is in an invidious position trying to counter an argument that he or she has no opportunity of studying. It seems that is part of the Minister's streaming process to tighten up the interview process. However, is the Minister ensuring that due process is adhered to if documentation is withheld? The effect of this provision is to withhold documents from the applicant such as evidence and information that may have come to light in the course of the interviewer's inquiries.

I could see some force in the point that is being made if it were not for the fact that in a later amendment to section 13 it is proposed that in cases where there is a negative outcome such documentation will be provided. As it stands this applies to all cases regardless of the outcome of subsections (6) and (7).

Where is it provided?

In section (13), amendment No. 47. New subsections (10) and (11) are proposed. It effectively means that if the decision is negative, the person gets the documentation. The implication is that if the decision is positive, we do not go through that process. It seems a bit odd that when an applicant is winning his or her case, the State undertakes the obligation to send out all the material on the case.

Does it say as much?

The existing law is that the State is obliged to request the sending of material in a positive decision.

How does one know it is going to be a positive decision?

At present, one can just request it in any decision, positive or negative, whereas this states that if the process goes against the applicant, he or she can get all the documents, decide whether the decision was fair and appeal the decision by reference to the material available to the original assessor.

What the Minister is saying is that the deletion of subsections (6) and (7) is intended for the purpose of speeding up the case where people are manifestly successful in their applications and that any documentation would be superfluous to the decision.

Alternatively, if they are going to fail in their case, handing out the documentation is only of relevance to them with regard to a decision to appeal.

Is it fair that they are not provided with the documentation to make the best initial decision and have due process at that stage? Instead, they will be allowed due process at appeal stage when they are supplied with the documentation. Surely, it is at the initial interview stage that the proper full hearing should take place. Very few applications are successful at initial hearing, whereas there are two to three times the number of successful applications when it comes to appeal. Part of the reason for that may be that documentation was not available. Up to now the documentation should have been supplied, but was it all supplied?

Exactly, that proves the case against it. Under the present regime there is a greater rate of success in appeal, as the Deputy said.

Will the Minister comment on that? How can one have an application system whereby there is such a discrepancy between the success rate of the primary application and the appeal? The Minister indicated that a number of cases go to the Department on humanitarian grounds. Why is there such an unsuccessful rate at the primary stage?

We have to be careful about these figures. People can conjure up figures to prove any point. By necessity, the appeals are only concerned with cases that are prosecuted onwards and people are taken seriously. The original applications deal with cases that are put out there for effect. Ones that are appealed are ones in which at least the applicant has some considerable degree of faith. The Deputy is not comparing like with like.

Statistics and damned statistics.

It does not worry me in the slightest that the success rate from the appeal tribunal is different in any particular category of cases from that at first instance. That only underlines to me the robust independence and the fact that the two groups are not operating some co-ordinated policy. I would be suspicious if there was some mathematical correspondence between the two and people would say that it is a strange coincidence. It underlines the independence of the appeal process in that it is impossible to take out some slide rule and say that it is exactly the same as the initial process. Appeals by definition are those where one party to the decision is dissatisfied with the original result. Unappealed applications are where the applicant accepted the decision from the beginning. There is bound to be variations between the two. It is something people look at and ask if it is significant. In my view it is not significant. If there was a direct linear correspondence between the two processes, I would say there must be some explanation for that. If there is a variance between the two, that underlines the fact that it is a separate independent process conducted by people who are not tick-tacking with each other to arrive at co-ordinated outcomes.

That is indeed one interpretation.

If Members of the Oireachtas, including Deputy Costello and myself, were to say to the ORAC people that there is a very high rate of success on appeal and they must therefore be doing their job wrongly, I think we would be putting the wrong pressure on the original deciding officers. They do their job, knowing there is an appeal process. It would be strange indeed if we said that because many people succeed on appeal, that shows that what the original deciding officers are doing is necessarily defective and that they should bear in mind the outcome of appeals, which are often successful, and therefore soften up or change the approach. If that were to happen, a small number of people would succeed on appeal and it would then be argued that the appeal process was not satisfactory because so few people succeed in it. The Deputy would be waving the opposite statistics at me and saying there is something wrong with the appeal process.

It seems the Minister, Deputy McDowell, is thinking of tightening up the appeal process in later amendments and that there will be greater limitations set on the appeals tribunal in its decision-making, with the tribunal more confined in the terms of reference it may use in deciding cases that have been heard by the commissioner.

I have already raised in the Dáil the discrepancy between the number of cases that a member of the tribunal receives and those received by another tribunal member. Some members have not had a single appeal case while others had vast numbers. Some clarification is required regarding the distribution of cases to the various members of the appeals tribunal. It seems that under this legislation the desirable independence of which the Minister has spoken will no longer exist in terms of the appeals tribunal because its review of the applicant's case after it has been refused by the commissioner will be a very limited one.

I will address that when we get to the provisions dealing with the changes in the appeal process. I do no accept the proposition put forward by Deputy Costello, but with reference to the amendment under discussion, I do not see that there is an issue.

There is, on the ground that it is more desirable that all documentation relevant to a decision is dealt with at the first instance rather than leaving something that might arise later.

Amendment to amendment put and declared lost.
Amendment agreed to.
Amendment No. 33 not moved.

Amendment No. 34 has already been discussed with amendment No. 27. I remind Deputy Costello that amendment No. 27 has already been declared lost.

I move amendment No. 34:

In page, 9, line 28, to delete "3" and substitute "20".

Amendment put and declared lost.
Amendment No. 35 not moved.

Amendments Nos. 36, 42, 43 and 55 may be taken together by agreement. Is that agreed? Agreed.

I move amendment No. 36:

In page 9, line 33, after "withdrawn." to insert ": Provided that if such reasonable excuse is subsequently furnished the Commissioner may deem the application to have been revived".

Earlier we proposed to group this amendment with amendment No. 28, but Deputy McGrath did not move it.

That is correct.

This amendment refers to a provision whereby "if such reasonable excuse is subsequently furnished the Commissioner may deem the application to have been revived".

Will the Minister help out?

This amendment, if agreed, would have the effect of creating a potentially endless processing loop to the Government's proposals. It would nullify the aim of bringing to a finite end cases where the applicant is not co-operating. It would never be possible to say a case was closed because at some indeterminate time in the future, but well past the time limit set in the application, the applicant might re-emerge and offer an excuse.

I am satisfied that the proposals I am bringing forward are fair to the applicant who is willing to co-operate and gives ample opportunity to the genuine cases of difficulty that arise. We cannot have an interminable process where people can return at any time with an excuse for failure to co-operate, nor can we pose catch-22 questions for the decision makers. If an applicant cannot furnish an indication within a three-week period that he or she wishes to continue his or her application or appeal, it is stretching credulity somewhat that a reason that was not apparent at the time should subsequently occur to the applicant or otherwise emerge - likewise in the case of an applicant who applies for asylum and disappears without leaving a contact address.

Yet again the amendments are based on the assumption, which I believe to be mistaken, that open-endedness in these matters is ipso facto fairer to asylum seekers than reasonable but finite periods specified in the Government amendment. I stress the fallacy involved. The only people to profit from open-endedness are those who want to drag out the process as long as possible without regard to the drain on resources and the slowing up of the processing of sincerely made applications.

That is the reality. If in any given stream of 100 asylum seekers there are eight to ten bona fide applicants, the State apparatus could find itself spending its time sifting through the other 90 or so, never being able to close them off. When a decision is just about to be made, a solicitor's letter is issued, for example, demanding that the process be revived. Then the whole system grinds to a halt. As I said yesterday, we want people to realise that when they invoke the protection of the Irish State, they must do so in a serious, committed and sustained fashion.

We would allow someone deemed to have withdrawn his or her application for some extraordinary excuse, for example, being unconscious in hospital during the relevant period, to reapply. The person could start the process again if there were some extraordinary circumstance such as being on a life-support machine in hospital so that everything passed him or her by. In section 17(7) of the Refugee Act 1996 there is a provision that "A person to whom the Minister has refused to give a declaration may not make a further application for a declaration under this Act without the consent of the Minister." That consent could be reviewed judicially if I refused it. For instance, if someone were on the flat of his or her back in hospital receiving treatment throughout the period and came to me afterwards saying that he or she had been deemed to have withdrawn the application and I unreasonably refused leave to reapply, the person could apply for a judicial review.

I have to give my consent on reasonable grounds. The system is not absolutely impenetrable, but someone who effectively fails to co-operate and play the part would have a significant job explaining what had happened to satisfy me that there was a really good bona fide excuse for the failure. That is how the system would work. If, for instance, I found out that someone had spent three weeks in a psychiatric hospital and was effectively incommunicado, not having known about all those things or been able to deal with them because of something happening, and it turned out that the Refugee Applications Commissioner had deemed the person's application to be withdrawn, I would consent to the person reapplying.

The Minister is saying that there is ministerial discretion down the line and that he can deal with——

It is not merely discretion. I must either consent or refuse to consent, but that decision, which would be within the Minister's discretion, can be reviewed judicially. I cannot simply make an unreasonable decision not to consent.

That is undoubtedly some protection, but perhaps we might take the section with which we are currently dealing. The new section gives the applicant three working days to furnish to the Refugee Applications Commissioner an explanation for non-attendance. If that is not forthcoming, the application is deemed to be withdrawn. The timescale is very tight. I suggested 20 days and Deputy McGrath five. In any case, a working week seems the minimum that would be expected and should be given. Three days seems an incredibly tight period. If that timescale is imposed, it seems that one needs another safety valve, and that is the reason I have tabled this amendment.

The provision states: "If such reasonable excuse is subsequently furnished the Commissioner may deem the application to have been revived." The Refugee Applications Commissioner, having studied the case, is aware of the position. Somewhere down the line a reasonable excuse may be given and the Refugee Applications Commissioner would be a more appropriate person than the Minister to deal with the matter. Why should the case go to ministerial adjudication when the Minister will have to seek the original documents and study the matter? It would be simpler for the commissioner to revive the application if there were a justifiable reason given for non-attendance and the failure to give an explanation. If the person does not turn up for the interview and then has three days to give a reasonable explanation, how can that happen? Will there be communication? The wording is messy and untidy as it stands. If one wishes to leave in the three-day stipulation, it would be simple to insert a safety net of the nature I describe, which would be appropriate to the process and the manner in which it is currently being conducted, unlike what the Minister proposes.

If a person comes up with a reasonable excuse for failing to turn up at an interview, three days and five days——

I would say 20.

I know, that is the point. Effectively the Deputy is talking about a whole month, so that a month would go by before anything could be done, and that is not acceptable. The vast majority of applicants are in touch with other applicants because they may live together and be advised by the same legal services. We envisage that every applicant will understand the rules if Ireland insists on a three-day limit. To some extent this is like introducing the advantage rule in football. One cannot give the advantage rule to the fellow who is responsible for the foul to see if he can do any better. One gives the advantage to the other side. I suggest that, since 53% of people do not show up for interview, that is a message in itself.

I will go through what I said yesterday. Such interviews require a good deal of preparation and they frequently require interpreters. The officials must study the files and the country involved since they must be able to ask intelligent questions of the person claiming asylum. A good deal of preparation is necessary in each case. A fortnight's advance notice is required of someone who for some reason is not able to attend. However, if someone does not turn up and gives no explanation, the person has another three days to give a reason - because the train was derailed or the taxi engine burnt out - bearing in mind that he or she is living in Ireland and that the main item in life is to get asylum status in Ireland. The person is not permitted to work and the focus of his or her life must be to get the application through. If it is not, the person is not serious about the persecution in the first place and engaging with the Irish system in the second place.

The rules will be clearly understood. People who do not turn up for interview - the number is currently more than half of applicants, which is a scandal - must realise that if they do not have a bona fide excuse which they communicate within three days, as far as we are concerned, their case is finished and the file is shut. They may have some extraordinary excuse, such as not being present where they were supposed to live, being unaware of the interview, not being able to ring up to cancel or postpone or being prevented from turning up by something on the day. If they have such an excuse and they do not make it within three days, they will be facilitated with the right to reapply provided there is a good faith explanation which is consistent with them carrying out their duty and engaging seriously in the process. They will be entitled to seek the Minister's consent to reapply but with the State having put all this together for them, they will have to explain the no show in convincing terms.

I want to get across the message that we are not dealing with passive asylum seekers. They take on an obligation to prove their case to us. That is the international law. We provide the venue, the expertise and all the background and translation facilities and bring a lawyer along to the interview to represent them and if they do not show in those circumstances, they must come up with a reasonable explanation within three days. If they do not, we shut the file and the only circumstance in which the matter is reopened is where they apply to the Minister for consent to re-engage with the process, in which case he will make a decision based on reasonable grounds. He will not unreasonably refuse to give consent but the person will have to come up with a credible and convincing explanation as to what happened.

That sounds reasonable, does it not?

It does not. The more I think about it, the more drawn out and unreasonable it appears. This series of amendments arose in the context of the Minister not accepting my proposed change from three to 20 days.

Twenty working days.

We had that argument yesterday.

These amendments arise out of rejection of that amendment.

This is just a tail.

No, it is far more than a tail. This is an attempt to assist the Minister in a streamlining process. I do not want the Minister to be constantly hassled by people who are putting in——

I know the Deputy wants to have a monopoly on hassling.

The Minister is difficult to hassle. He does most of the hassling. This is the wrong system. If an application is to be revived——

It is not a case of reviving. With a dead application one starts again.

That is where the Minister is making an even bigger mistake. Why should the person have to start all over again if there is a genuine explanation as to the reason he or she did not turn up for the interview? Why should the commissioner, to whom the application is made, not revive it? Why should it go all the way up to the Minister? The Minister has enough to do to run the country, the party and so on.

The Office of the Minister - it may be a different Minister for Justice, Equality and Law Reform.

If the commissioner——

The Minister is making this law and the more I think about it the more I am convinced that my amendment is a more desirable approach than the one the Minister appears to be intent on pursuing. We are streamlining the system by giving the applicant a very short space of time, three days, in which to come up with a reasonable explanation, but the reasonable explanation may be that he or she has not been communicated with. If a reasonable explanation is forthcoming, the person should then go to the commissioner who has been dealing with the case rather than leap-frogging to the Minister to reopen the whole application. That is crazy. It is jumping a number of stages that should not be jumped. This is the right approach and it will only take place if a reasonable excuse is furnished. Why is the Minister not prepared to allow the commissioner the authority to reopen a case after it is deemed to be withdrawn on the grounds outlined in the Bill? That is absurd. This is a very reasonable and helpful amendment. It will only apply to a few cases but it is the commissioner who is most qualified to re-examine those cases he has already examined.

I doubt that the applications commissioner would share the view that it is in her interest and for her convenience that she can revive any file and that she has to keep them semi-open on the basis that she will receive such applications. Somebody who applies to the Irish State for asylum protection in the first instance makes an application to the Minister, to me, in my corporation soul——

The application has been made and processed through the system. The Minister should not now be——

There is no point in going around in circles on this matter. When this law comes in, people will be very clear as to whether they are or are not co-operating with the system. There will not be long periods of limbo when the application might or might not be proceeding. People will engage with the process and they will know that the process will be a speedy one. That is what we are offering. People who do not show up, do not telephone to cancel an interview, leave the applications commissioner representative sitting in a room with an interpreter and a lawyer, with all the research having been done, and do not explain the reason they did not turn up will have their files shut at that stage. If they want to start the process again they can do so but they will not be able to wander down to the commissioner to say that their dog got lost or something like that. We do not want to hear that. We want people to engage seriously with the process.

They will not say that to the Minister.

If they think they will get a hearing on that basis from me, they are welcome to make the point.

Amendment put.
The Select Committee divided: Tá, 2; Níl, 7.

  • Costello, Joe,
  • McGrath, Finian.

Níl

  • Ardagh, Seán
  • Hoctor, Máire,
  • McDowell, Michael,
  • O’Connor, Charlie,
  • O’Donovan, Denis,
  • Ó Fearghaíl, Seán,
  • Power, Peter.

I wish to make a short statement regarding correspondence received by the secretariat. With regard to what may have been said at the joint committee meeting held on 19 June 2003 in relation to misleading official advice to asylum seekers, the Refugee Applications Commissioner wishes to clarify that her office did not provide misleading information to asylum seekers on withdrawing from the asylum process if they became parents of Irish born children. A letter setting out the Refugee Applications Commissioner's practice will issue to the committee shortly.

We will suspend the meeting until after the vote in the Dáil.

Should we resume after the Order of Business, given that it probably will not go on for much longer?

A vote has been called on a proposal and the Order of Business will continue for at least another 20 minutes. The Deputy will not be involved in inquiring when Bills will come before the Dáil. If we resume after the vote, that would be preferable.

Sitting suspended at 10.58 a.m. and resumed at 11.27 a.m.

Amendment No. 38 is related to amendment No. 37 and both amendments may be discussed together. Is that agreed? Agreed.

I move amendment No. 37:

In page 9, to delete lines 35 to 39.

Amendment No. 37 proposes to delete subsection (11)(a) which refers to where “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”, while amendment No. 38 proposes to delete paragraph (b): “the Minister notifies the Commissioner that he or she if of the opinion that the applicant is” in breach of that duty.

The provision is vague in that it uses the phrase "it appears to the Commissioner that an applicant is failing" in his or her duty. The Minister is introducing the notions of co-operation and appearance. The paragraph refers to the Minister being of an opinion, another area of vague subjective discretion. Is that type of provision desirable in this legislation?

If these two paragraphs were to be removed from the subsection, it would effectively mean the requirement to co-operate with the process would be set at nought. Paragraph (a) allows the commissioner to form the view 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. If somebody is singing dumb and simply giving nonsense answers, not responding to letters, not giving information or giving wholly incredible information about himself or herself, a point must arrive where the commissioner can declare that if the applicant does not indicate that he or she will co-operate, the application will be deemed withdrawn. That is provided for in this paragraph. It allows for formal notification to the person concerned. If it were used unreasonably, I have no doubt that somebody would be down to the High Court to have it quashed instantly. There is always the protection of a judicial review in these matters.

If, on the other hand, somebody is giving different accounts of where they are from - say, Liberia, Ghana or Nigeria - at some stage, the commissioner may say he cannot investigate these claims if mala fide information is being provided by the applicant. In those circumstances, this section provides that the commissioner can serve notice on the person saying they propose to regard them as having withdrawn their application. If the commissioner abused that power in a heavy-handed way, it would be open to all asylum seekers, who have access to legal advice, to go to the High Court immediately to quash the notice on the basis that it was being sent unreasonably. It is not just a matter of me indicating to the committee that this power will only be used reasonably, it is also the case that if it is used unreasonably it will expose the commissioner to judicial review.

The second subparagraph provides for the Minister to notify the commissioner that an asylum seeker is in breach of residence rules or has not given the appropriate address. In practice, where the address has not been given, it probably will be the case anyway that the new procedures will lead to a fairly rapid decision deeming the application to be withdrawn. Under subparagraph (b), if somebody goes on the run or is not known at the address, at some stage somebody has to draw a conclusion as to whether the applicant has gone to ground, disappeared into Irish society, leaving no forwarding address. That is what this is all about.

The end result of this, therefore, will be that applications will be withdrawn due to people's failure to furnish information in a fairly highly subjective situation. It is one thing for the commissioner to be involved but it is strange that the Minister should notify the commissioner at this stage. What sort of procedure are we talking about? Is the commissioner notifying the Minister and how will the Minister know about a case with which the commissioner is dealing?

The reception integration agency might say that a party of asylum seekers, who were being accommodated in Tralee, have suddenly disappeared without leaving a forwarding address. At that stage I might use this power to notify the commissioner that the applicants are no longer resident at the address, having left it. Unless they have made some alternative arrangement with the commissioner, at that stage, when they have put themselves beyond her power to communicate with them, she will be in a position to bring the matter to a close, rather than pretend that the matter is still pending.

In the present situation, applicants may change address not so much with intent to avoid an interview, but to find alternative accommodation for one reason or another. Is the Minister saying that such a situation will not arise in future under the new provisions?

Direct provision is my intention in all cases from now on but it is not the equivalent of some form of detention. One is legally under a duty to reside at the direct provision address but that does not mean that one commits a criminal offence - or is liable to be arrested or brought back by the Garda Síochána to where one should be - if one goes missing. The Garda Síochána might become aware of when an asylum seeker goes missing and might inform me of the matter. It frequently happens that in the ordinary course of their duties, the Garda Síochána comes across somebody residing somewhere else and would draw it to my attention. In those circumstances, the commissioner would be so informed. The new powers, procedures and policy of direct provision are designed to ensure that for a comparatively short period, which runs to a matter of weeks, somebody resides at the address that is allocated to them. In those circumstances, their application is processed while they are residing there.

The truth is that a large number of people never intend to avail of the direct provision accommodation. They just arrive, make their application and disappear, never intending to process the matter further. There are many such cases where people disappear as soon as they have made an initial contact. They want to establish their status as asylum applicants and disappear. They hope that when they are found, if ever, they will be able to claim they are asylum applicants and presume that there is some process they can pursue. To use a Dublin expression, they will "act the daw", saying they have no idea what is happening and will be passive spectators in the process.

Far be it from me to deny or reject what the Minister says as being anything other than the Gospel truth. How can it happen in the system, however, that somebody arrives and then disappears somewhere if they have made an application for asylum? Where would they go? Would the first step not be that they are looking for rented housing if they do not go into direct provision immediately, although they may do so in future? Would it not be easy to find them within the system because they do not go underground and disappear into the blue? It appears that the system would be able to track them fairly easily.

I would like to think there is a tracking system but there is not.

Is the computerised database not linked through Departments?

The Department of Justice, Equality and Law Reform and the Department of Social and Family Affairs are putting together a joint policy committee with a view to co-ordinating their activities on asylum seekers. I do not want to contribute to any urban myths by speculating where such people might go. One of the problems is that when applicants dispose of their travel documentation they can invent several personas. Without documentation, for example, an applicant can call himself John Smith, James Smith and John Smithson and nobody knows who he is because there is no objective way of identifying the person, except that on the original asylum application a Eurodac fingerprint has been taken. That is the only basis on which a connection can be made between a person and an application.

I want to be careful about what I say because I do not want it to be suggested I am generalising too much. If one is wholly undocumented, it is easy to recreate oneself as a multiple personality, to process different welfare claims and different employment histories and to be a welfare recipient in one name, an asylum seeker in another name and somebody working in the black economy or whatever in a third name. There is also the possibility that one could go to the United Kingdom. Although we do not know the proportion of the totality they represent, there have been a number of instances of people being detected running double applications for asylum, running multiple persona to exist in both jurisdictions and travelling backwards and forwards on a carousel basis depending on what was happening in either jurisdiction. It is not easy to keep an eye on things, especially when there is a common travel area.

The situation will be that very few people coming into the country will be touched by the carrier liability provisions and a large number, who will come in through Great Britain and Northern Ireland, will be untouched by this legislation.

They will not be untouched by the remainder of the legislation but by the carrier liability provisions. They will be fingerprinted and will have a single identity. There will be a common comparison of asylum seekers' fingerprints between Ireland and the UK under Eurodac. If one exists in both countries, one should be detectable as running two parallel asylum applications. In truth, it is difficult to stop an English asylum seeker residing in Ireland unless one stops him or her at Holyhead or wherever and asks who he or she is on the suspicion that he or she is not documented to come to Ireland. Alternatively, it is almost impossible for me to say of the 53% who do not show for interview and who presumably disappear into the woodwork that a considerable number of them are not going to the United Kingdom and existing there. By definition, we cannot know.

One of the problems which distinguishes us from the civil law countries in Europe is that if one goes to Luxembourg, one cannot simply rent an apartment as a matter of choice one afternoon. One must go to one's local prefecture with countless documents and photographs of oneself. One must register with the police and so on and establish one's identity. One cannot even open a bank account without huge paper transactions taking place. For instance, Irish civil servants who go to work in Brussels need nine photographs of themselves to engage with the Belgium system. They must inform the local police that they reside in their area. There are all those provisions. This is something——

In the Schengen acquis.

When people talk about how wonderful the Schengen acquis is, they forget the other side, namely, that one cannot move in most civil law countries without making extensive engagements with the state, telling where one is living and why one is there, and without producing one stamped form from one department to another to progress the matter a little further. One simply cannot rent a house in Belgium by walking into an estate agent, plonking down a wodge of cash on the counter and saying one would like to rent a house for the next month. The world does not work in that way.

Amendment, by leave, withdrawn.
Amendment No. 38 not moved.

I move amendment No. 39:

In page 9, line 44, to delete "shall" and substitute "may".

As the Minister would not accept amendments Nos. 37 or 38, perhaps he will accept amendment No. 39. If he is going to go ahead with the procedures in section 6(a) and (b), rather than impose an absolute obligation on the commissioner to send the applicant notice in writing inviting the applicant to indicate in writing within 15 working days etc., will he soften it to “may send”? In other words, the commissioner will assess the situation and will make a judgment on the basis of that assessment. It would give the commissioner some scope in the event of somebody failing to co-operate or to furnish all the information regarded as appropriate. The commissioner could exercise a degree of discretion and flexibility in relation to how he or she deals with the matter.

This amendment is being opposed for the same reasons as the previous two amendments. As they stand, the provisions of the Bill set out the circumstances which, when present, give rise to a strong indication that the applicant is not co-operating with the asylum process. Ordinary, decent, right-thinking people would say that whenever those indicia are there, steps should be taken to close a case because we cannot throw costly State services at people who have no interest in the claims for protection they have made. What Deputy Costello wants me to do by way of discretion is not to close files on every occasion, but I think they should be closed on every occasion.

The important point about this is that asylum seekers should know that a fairly mechanical sequence follows non-co-operation - in other words, they will not hope against hope that they will fall through the cracks. If they do not co-operate, their files will be closed and they will not be in a position to say, "I thought I was still a pending case". They will get the chance to attend an interview and to respond to this notice. After that, they will know the sequence will be a fairly mechanical one, that is, that their files will be effectively closed, that their status will be decided and that they will be deported when found subject to their right to make humanitarian representations.

I make no secret of wanting a system which asylum seekers know requires their full involvement, that when it is not forthcoming, it responds in a particular way to that situation and that it is not a matter of hoping against hope that the bureaucracy of the State will somehow fail in their cases, that they may fall through the cracks or that their files may sit on a shelf somewhere. They should know that if they do not respond to the notice, their cases are closed and the State will deport them. The result will be that asylum seekers will engage actively with the whole process and that they will not do what some feel there is an advantage in doing, that is, semi-engage, float around the edges of the system and come in and out when necessary to keep the system alive. That ethos will be gone when this comes about. It will favour genuine asylum seekers and will not favour those who are bogus. That is what I am trying to do. That 53% of people who are not showing for interviews will diminish and people will show for their interviews because they will know that the consequences of not showing will be terminal for their cases.

The Minister said he wants a mechanical system. Is a mechanical system desirable where there is an automatic response that the commissioner must send a notice? There will be a burden of work on the commissioner if 53% of people do not turn up for interview and they must reply within 15 working days. That is a short period. I understand the Minister increased that in the Seanad. Is that correct?

Senator Tuffy and others urged me to extend it from a fortnight to 15 working days, which is effectively three weeks.

That is an improvement in the position. The difficulty——

I still have doubts as to whether it is an improvement, but it was a concession made and I am not going to change it now.

I suppose we will have to take that as a compromise.

Amendment, by leave, withdrawn.
Amendment No. 40 not moved.

I move amendment No. 41:

In page 9, line 46, to delete "sending" and substitute "receipt".

This has already been discussed in detail with amendment No. 27.

It involves the principle of the sending and the receipt. Now that the Minister is allowing for direct provision, he can ensure the receipt.

I should be able to ensure it. The onus is not on me to do anything - I wish to make that clear. The onus is on the asylum applicant to reside where he or she is afforded accommodation and to progress the procedure. I am not undertaking a new onus in respect of people who seek the protection of the State. If they want it, they play by the rules of the game.

Amendment put and declared lost.
Amendment No. 42 not moved.

I move amendment No. 43:

In page 9, line 50, after "notice" to insert "unless a reasonable excuse in that behalf is subsequently furnished".

Amendment put and declared lost.

Amendment No. 44 and amendment No. 1 to that amendment are related and may be discussed together by agreement.

I move amendment No. 44:

In page 9, line 51, to delete "withdrawn."," and substitute the following:

"withdrawn.

(12) The procedures to be followed in investigations under this section may be prescribed and different procedures may be prescribed for different classes of applications.',".

The purpose of this amendment is practical and straightforward. The provision will allow the Minister to make regulations for the purpose of setting out the details of the conduct of an interview under section 11. These regulations, to which section 27 of the Act will apply, will be laid before the Houses of the Oireachtas in the usual way under that section.

As part of the investigation process under section 11 a variety of types of cases fall to be considered. In some cases, for instance, it becomes clear from a very early stage that the person is a refugee. In these circumstances it should be possible to conduct the interview in such a manner that the case can be expedited without the necessity of a prolonged examination where that is not required. Equally there will be cases where, for example, a person is from a safe country of origin designated under the provisions of the proposed new section 12 to be inserted by amendment No. 46 where, under the proposed new section 11A to be inserted by amendment No. 45, there will be a rebuttable presumption that the person is not in need of protection. In such cases the interview may need to be more focused and structured in such a way that the person is given every opportunity to make his or her rebuttal. Then there is the middle ground between these two where there are no pointers either way on the basis of the application, and the investigation in these cases may need to be more diffuse as a result.

However, I am satisfied and believe that others such as the United Nations High Commissioner for Refugees share my view that a one-size-fits-all approach to interviews does not necessarily service the applicant in the investigation of his or her claim. This provision will permit the making of regulations periodically which can assist the Refugee Applications Commissioner in dealing with different types of applications. The commissioner must always have regard to his or her general responsibility set out in section 11(1), which is to investigate the application for the purpose of ascertaining whether the applicant is a person in respect of whom a declaration must be given. While regulations to be made under this power may prescribe different procedures for investigations of different types of applications, they cannot compromise that all-important aim. If they did so, the courts would be quick to rule them invalid as being ultra vires the Act. The commissioner must always examine the merits of each case, and this regulation-making power will not change that.

Regarding Deputy Costello's amendment, the conduct of an interview structured to meet the requirements of specific cases under investigation can only assist in the early identification of those requiring protection and the refusal of cases that fall outside the definition of "refugee". The regulation-making power provided in the Government amendment is with a view to making the process of establishing whether a person is a refugee more efficient, and the point of my amendment is to put beyond doubt that regulations will be able to specify differently for different types of cases. Otherwise, I could just rely entirely on the general regulation-making power of section 23 of the Refugee Act.

How does the Minister reconcile the requirement in the Geneva Convention that every application must be assessed individually with the fact that he is going to regulate for and prescribe different procedures for different classes? This would appear to strike at the heart and core of the approach that should be taken. Once applications are lumped into classes, it undermines the thrust of what the Geneva Convention specifies in terms of the merits of each individual application. It would appear to go against the spirit and letter of the convention.

I do not accept that. For example, it should be possible under the amendment to differentiate between people from countries that will be designated as safe third countries of origin, which will raise the presumption that the people in question are not victims of persecution. At present, it is not possible to make that claim on the same basis for a European Union member state as it is for many states in the world. There is a presumption that the British and French do not persecute their citizens.

Some might not agree with that.

Maybe so, but at least the common travel area should assure Deputy ÓSnodaigh that anyone from those countries can come and reside here as long as they are not a danger to public order or whatever.

If someone coming from Australia, Canada or New Zealand alleges the state is tyrannical, one must come to a common sense view. Will one deal with that on the same basis as people coming from states that are manifestly tyrannical in their nature? If people examine, on the one hand, the political background of a Third World country that is subject to a dictatorship and which has the international reputation of being cruel and oppressive to its citizens and, on the other, someone coming from Canada, it is reasonable to provide by regulation that the process for examining the political history of both states should be different and that people are not examining American or Canadian history and conducting extensive searches. The issue under the Geneva Convention is the same regardless of whether the person is a refugee.

Regarding the procedure for determining whether it is the case, it would be wasteful of public resources to apply the same procedure to both. I am advised the UNHCR takes the same view, that it is wasteful of resources to treat every highly improbable and objectively incredible claim on the same basis as those which are highly probable and credible when it comes to procedures.

The Minister's aim up to now has been to produce a streamlined and standardised approach so that anyone who applies for asylum or refugee status will understand the procedure from start to finish, yet if we are to accept the Minister's argument and reject Deputy Costello's amendment we will have different procedures from different people. That removes the presumption that those applying have a case to make and that we, as a host country, must presume the case is valid until it is determined otherwise. Obviously there are what the Minister calls safe countries, yet within many of those there is persecution. It may not be on as wide a scale as some of the countries from which we receive most of our applicants but it exists.

If anyone doubts that, I travelled on behalf of the European affairs committee to an annual conference in Brussels on human rights in the EU, at which over 400 pages of documentation were produced which detailed human rights abuses in various countries. Amnesty International also produces a report on all the countries in the world which is very valuable to those working in this area. That report highlights areas where human rights are breached by these safe countries.

We should have a standard procedure. Then we could make quicker determinations in the cases of the US and Canada, as information is more easily available than, say, in African countries. One can use a search engine on the Internet to cross-check with organisations in those countries and there is no need for a separate procedure. Ireland could be classed as a safe country in some jurisdictions but that is not to say there has not been persecution of some of our citizens - for instance, the Traveller community might agree with that statement. I am not the one to determine that. I am not saying that it is the same in other countries but a similar situation exists for the Roma gypsies. One reason Romania will not join the EU next year is that it has not reached the required human rights standards. It is the same for Turkey and while that is good, even when those countries have reached the standard necessary there will still be some residual persecution, discrimination or abuse of the human rights of some minorities in those countries. It would be remiss of us to categorise those as safe countries to argue and that there should be a different procedure. We should have a system in place which is standardised and which produces a determination as quickly as possible. I do not see why different procedures should apply.

I believe in the safe country of origin concept and that it helps focus the mind. Everyone involved in the system gets merit-based consideration. Nobody is simply sent down a blue or green channel because of where they come from and is rejected as a matter of law. In every case there is merit-based consideration. The difference is that in some cases we provide that there is a rebuttable presumption that the state is not an oppressive state, while in other cases there is no such presumption and it is an open issue.

It is reasonable to say that if someone comes to Ireland from Sweden they should face the rebuttable presumption that Sweden is not an oppressive state persecuting them. They can have a hearing but they face an uphill task to establish that the Swedish state is persecuting them. In other cases it would be ridiculous to have a presumption that there would not be persecution when we know there would be every likelihood of persecution. That is the difference and it is not unreasonable to have it.

We would be unusual internationally in not differentiating between safe countries of origin on the basis of a rebuttable presumption. The UNHCR could have no objection to rebuttable presumption. The safe country of origin concept is recognised by the UK, Holland and Germany and will also be provided for in EU procedures and directives so it is not something public servants in the Department of Justice, Equality and Law Reform dreamed up one morning to make their lives easier. It is the future. It is arriving in Ireland and we must prepare for it.

There is no reason the work should not be easier. If one is asked under contract to paint a room and one finds most of it was painted six months earlier, the idea that one sands everything down and starts again may be treating everything evenly——

I did not question the idea of the safe country, I questioned the idea of a difference in procedure. A safe country means the decision can be made quicker because the Minister for Foreign Affairs can be involved to rule on a declaration being true, for instance. In this case it should not have to be a different procedure, it should be the same procedure but with a quicker determination provided.

The procedure is the same in that the hearing is always on merit. The procedure is not the same in that with a safe country of origin, a strong onus is put on the applicant to show credible grounds to a high degree of proof that what they are asserting is true. They cannot simply come with a story that would be entirely credible if it came from a country that is less safe.

Is there not a danger that we will end up with a degree of discrimination?

All these people will have legal advice so it is not as if these are hapless people being put into an automatic process and then flung out. The onus of proof will change and a higher standard of proof will be required, given the rebuttable presumption, they will have legal assistance in making their cases.

Is there a danger that the Minister is short-circuiting the process and the——

Yes, I am short-circuiting the process.

I had not finished my sentence. Will the number of categories interfere with the ability to deal with cases individually? This is doing an injustice and discriminating against individual applicants.

We will have to suspend the sitting.

I will make one more comment before we do. I am sure Deputy Costello will say everyone gets a hearing at his clinic.

An individual hearing.

Yes. However, I am sure that when the Deputy sees certain individuals coming through the door for the 15th time, he says they will get a hearing but that it will be short.

We will suspend the sitting until after the Dáil vote.

Sitting suspended at 12.10 p.m. and resumed at 12.30 p.m.

I move amendment No. 1 to amendment No. 44:

In the proposed new subsection (12), to delete "and different procedures may be prescribed for different classes of applications".

The Minister has engaged in high-handedactivity.

Amendment to amendment put and declared lost.
Amendment put and declared carried.

We now proceed to amendmentNo. 45, to which there are nine amendments.

I move amendment No. 45:

In page 9, between lines 51 and 52, to insert the following:

"(d) by the insertion of the following sections after section 11:

11A.-(1) Where, at any time during the investigation of an application by the Commissioner under section 11, it appears to him or her than an applicant-

(a) is a national of, or has a right of residence in, a country standing designated by order under section 12(4) as a safe country of origin, or

(b) had lodged a prior application for asylum in another state party to the Geneva Convention,

then the applicant shall be presumed not to be a refugee unless he or she shows reasonable grounds for the contention that he or she is a refugee.

(2) Where an application is one to which section 22 applies, it shall be for the applicant to show that his or her application should be examined in the State.

(3) Where an applicant appeals against a recommendation of the Commissioner under section 13, it shall be for him or her to show that he or she is a refugee.

11B.-The Commissioner or the Tribunal, as the case may be, in assessing the credibility of an applicant for the purposes of the investigation of his or her application or the determination of an appeal in respect of his or her application, shall have regard to the following:

(a) whether the applicant possesses identity documents, and, if not, whether he or she has provided a reasonable explanation for the absence of such documents;

(b) whether the applicant has provided a reasonable explanation to substantiate his or her claim that the State is the first safe country in which he or she has arrived since departing from his or her country of origin or habitual residence;

(c) whether the applicant has provided a full and true explanation of how he or she travelled to and arrived in the State;

(d) where the application was made other than at the frontiers of the State, whether the applicant has provided a reasonable explanation to show why he or she did not claim asylum immediately on arriving at the frontiers of the State unless the application is grounded on events which have taken place since his or her arrival in the State;

(e) where the applicant has forged, destroyed or disposed of any identity or other documents relevant to his or her application, whether he or she has a reasonable explanation for so doing;

(f) whether the applicant has adduced manifestly false evidence in support of his or her application, or has otherwise made false representations, either orally or in writing;

(g) whether the applicant, without reasonable cause, having withdrawn his or her application and not having been refused a declaration under section 17, has made a subsequent application under section 8;

(h) whether the applicant, without reasonable cause, has made an application following the notification of a proposal under section 3(3)(a) of the Immigration Act 1999;

(i) whether the applicant has complied with the requirements of section 11C;

(j) whether the applicant has, without reasonable cause, failed to comply with the requirements of section 9(4)(a);

(k) whether the applicant has, without reasonable cause, failed to comply with the requirements of section 9(4A);

(l) whether the applicant has, without reasonable cause, failed to comply with the requirements of section 9(5).

11C.-(1) It shall be the duty of an applicant to co-operate in the investigation of his or her application and in the determination of his or her appeal, if any.

(2) In compliance with subsection (1), an applicant shall furnish to the Commissioner or the Tribunal, as may be appropriate, at the earliest opportunity, all information in his or her possession, control or procurement relevant to his or her application.',".

The amendment provides for the insertion in the Refugee Act 1996 of three new sections dealing with the burden of proof, credibility of the applicant and the duty on the applicant in the investigation of an asylum claim. The new section 11A addresses the question of burden of proof in the asylum process. The UNHCR handbook on procedures and criteria for determining refugee status under the Geneva Convention is a useful publication of high international standing. While it is not binding, its content is generally regarded as being of persuasive authority. At paragraph 196 in the part of the handbook dealing with the principles and methods of establishing the facts in asylum claims, it states:

It is a general legal principle that the burden of proof lies on the person submitting a claim. . . In most cases, a person fleeing from persecution will have arrived with the barest necessities and, very frequently, without personal documents. Thus, while the burden of proof, in principle, rests on the applicant, the duty to ascertain and evaluate all the relevant facts is shared between the applicant and the examiner.

The Refugee Act 1996 has, heretofore, been silent on this question. Practice in the Irish context has generally acknowledged the shared responsibility of the applicant and the RAC in ascertaining the relevant facts. This has, however, been in the context of a statute that so far has not provided for the concept of countries being regarded as safe countries of origin or, in layman's terms, countries that do not generally give rise to valid claims for protection. The amendment seeks to change this position by introducing a means whereby the Minister can designate countries as safe countries of origin. Along with this, it makes provision that the refugee commissioner should also spell out particular types of cases where the general principle recognised by the UNHCR in its handbook should apply. Thus, the new section 11A identifies the circumstances in which the burden of proof, in line with this principle, is to lie on the person submitting the claim.

The first of these circumstances, in section 11A(1)(a), is where the applicant is from a designated safe country of origin. The next, at paragraph (b) of the same section, will arise where the person has already applied for asylum in another convention country. In either of those cases, there will be a presumption, rebuttable by the applicant, that her or she is not a refugee. If the person comes from a safe country of origin or comes in the context of having applied somewhere else, there will be a rebuttable presumption that the person is not a refugee. The effect of this will not be that a person in either category will never be recognised as a refugee, but rather that such a person will have the opportunity to show whether in his or her particular circumstances there is a well-founded fear of persecution on Geneva Convention grounds.

The Dublin Convention and the EU instrument on the same subject, known colloquially as the Dublin regulation, which will replace it next September, address the issue of the appropriate country to examine a particular asylum claim. Provision for implementing these instruments and for providing for safe third countries are contained in the replacement for section 22 of the Refugee Act in Government amendment No. 60. Subsection (2) of the new section 11A sets out that where the question of transferring an asylum claim from this State to another convention country or a designated safe third country is to be decided, the onus will be on the applicant to show that Ireland is the country that should deal with the application.

The final subsection of the new section 11A spells out in the primary statute that in the situation where, after investigation of the asylum claim, the commissioner makes a negative recommendation and the applicant appeals that to the Refugee Appeals Tribunal, the onus will be on the appealing applicant to show that he or she is a refugee.

These statutory clarifications as to where the onus lies in these circumstances are fair and reasonable, and are necessary to ensure that the resources of the commissioner and the tribunal for determining these issues are efficiently deployed so as to facilitate the early recognition of asylum applicants who are refugees in need of Ireland's protection.

This amendment also inserts a new section 11B in the Refugee Act 1996 to deal with the issue of assessing the credibility of the applicant. These are matters of real concern. Credibility goes to the core of an assessment of a claim for refugee status. As the UNHCR handbook states at paragraph 41: "an assessment of credibility is indispensable where the case is not sufficiently clear from the facts on record." If someone is untruthful or inconsistent in his or her accounts, it must raise doubts as to the genuineness of the refugee status claim. However, I wish to make it clear that where one of the factors set out in paragraphs (a) to (l) of section 11B arises, it is not in itself necessarily fatal to the claim for asylum. The new section merely lists matters to which regard is to be had in the assessment of the applicant’s credibility as part of the investigation for refugee status.

The matters listed are largely a matter of common sense. They cover questions of documentation, where such is available; the reasonableness of not having any, where it is not available; untruths or reluctance to give full details about verifiable matters such as details of the journey to Ireland or the basis for the persecution; whether a previous asylum claim has been withdrawn or let drop; whether the claim has been made in circumstances where it puts a potential deportation on hold; and whether there is evidence of non-co-operation with the asylum process. The weight that should be given to any of these factors is a matter for the person making the assessment, whether that be the commissioner and her staff or the Refugee Appeals Tribunal.

The proposed new section 11C states in statute what is already recognised by the courts as a duty on the applicant to co-operate in the determination of his or her asylum application. In several judgments of the High Court it has been held that the asylum seeker has that duty. I want to make that clear to anyone who reads the law but who does not have access to our case law. Every applicant is told of this requirement in the notice given to him or her under section 11(8) of the Act of 1996 at present, and that will be reinforced by the changes at section 6(c)(ii) of the Bill.

Subsection (1) clearly states this duty and subsection (2) provides that compliance with this duty requires the applicant to furnish the commissioner or the tribunal with all information in his or her possession, control or procurement relevant to his or her application at the earliest possible opportunity.

The Minister is imposing a burden of proof and creating a new category of a safe country of origin. This is the Minister's creature and has no stature in domestic or international law to date. He couples this creation with the Dublin Convention. Effectively he is saying that somebody from what he regards or designates as a safe country of origin can seek refugee status. Will he elaborate further on what these countries are and what the criteria will be, or whether he already has a list of countries he will designate under section 12(4)? We see the European Union as a block of countries with a reasonably common set of principles underlying its operation but outside of that what category of countries is the Minister talking about?

A person is entitled to make an application irrespective of the operation of the DublinConvention. When an asylum seeker arrives in a country he or she is entitled to make a separate application, which would be discussedon its merits. The Minister's amendment will effectively do away with this. While the Minister has given us a comprehensive statement in regard to amendment No. 45, it is a major introduction concerning credibility, the burden of proof, the country of origin and the Dublin Convention.

Will the Minister assure us that we will remain in line with the Geneva Convention if we implement this section? It seems the Minister's amendment departs further from the requirements of that convention in categorising people. It states that if a person is in a particular category we will deal with him or her in a particular fashion. If we can now create this new designation of a safe country then the person is in another category and if he or she is in breach of the Dublin Convention we will not consider the application.

We have certainly gone considerably along the road towards undermining a simple principle of the Geneva Convention that one does not deal with categories but with individuals, and that each individual application, irrespective of where it comes from, must be dealt with on the basis of its merits, by the country where the asylum seeker is seeking refuge. The thrust of this amendment is in the opposite direction.

With regard to the last amendment, all applicants have the right to have their request determined on the basis that they make the application. I am concerned that the concept of a safe country would take away some of the rights of an applicant to be dealt with on an individual basis as per the universal declaration of human rights.

There are one or two other points. The Minister quoted the UNHCR handbook. In regard to 11C it suggests the addition of a paragraph at the end to state that the following conditions should be met: the applicant should make a genuine effort to substantiate his or her claim; all available evidence should be obtained and where possible checked; and the examiner should be satisfied that the applicant's statements are coherent and plausible and do not run counter to generally known facts relevant to his or her case. The applicant will be granted the benefit of the doubt. This is a general principle of international law and is reflected in the UNHCR handbook - paragraphs 203 and 204. That might add to what the Minister is trying to produce here.

Section 11B(c) states that the applicant must provide a full and true explanation of how he or she travelled to or arrived in the State. The UNHCR states that in general travel and arrival are not material to refugee status determination and therefore should not form the sole basis of credibility assessment. We need to be careful on that one. I suggest an amendment to state that it may be just one point but not the only point under which a determination is made. Sometimes asylum seekers lodge applications in another country and flee or move from that country for various reasons. It should not be the sole determining factor in deciding on their application.

It seems it is common sense that we should try to prioritise and sort out by category those people coming from different States. I emphasise that every case is given a hearing on its merits. I emphasise that in establishing an obligation to participate in the process, as far as I am concerned, that obligation already exists as a matter of judge-made law and I want to make it clear that it applies as a matter of statute law.

On the question of the accelerated procedures for people coming from safe countries of origin, it seems this is simple common sense and that it should be the law in Ireland. We would be foolish not to have it as part of our law.

It has been said that the fact that one has applied for asylum status in another Geneva Convention country should not be pertinent to whether one is viewed in Ireland as a valid asylum seeker. If one has a good reason, having applied in one country, one went to another country, that will be taken into account by the Refugee Applications Commissioner or the Refugee Appeals Tribunal in relevant cases. If one is in the business of making applications which are not proceeding and substituting an application in one country for another, there is a very strong presumption that one has made at least one application without an intent to prosecute it to a finish. That has to raise the question as to whether the applicant is just forum shopping and country shopping rather than genuinely seeking to avoid persecution and applying for protection in the first safe place. The proposal as contained in the legislation is reasonable.

On the proposed section 11B, it is the case that some people - I fully accept this - will find themselves either undocumented or badly documented if they are fleeing persecution. I have no doubt about that. If a person has no passport, it is highly unlikely that he or she would apply to the foreign affairs department of a state that was persecuting him or her, with a view to obtaining a passport, if he or she were in genuine fear of his or her life.

On the other hand, it is the case that people come to Ireland via the United Kingdom, use a passport to get into the United Kingdom, travel through the common travel area, get to Dublin and then announce that they have no papers. They are willing to get as far as England by using regular papers, presuming they are not travelling on a forgery, and second, when they get to England, they travel on to Ireland using the common travel area. To make it impossible to establish their movements and their identity, they throw the passport in a bin. Ireland is faced with a person claiming to be the person he or she is but who has thrown away any real evidence of identity. Inquiries that could be made about the person in the ordinary course of events, as to his or her background, become all the more difficult because the Irish authorities are effectively confronted with a wholly undocumented person. If the latter was the motive to obscure one's background, to make it possible to make claims about oneself, such as claims that one was in a political movement, when the truth is that one was a jailbird or whatever in the country in question, a person can destroy all documentation and present himself or herself using a brother's or cousin's name or whatever. If that is the purpose, that raises the issue of the person's credibility, and there is no point in pretending it does not.

Likewise, there is a doctrine that in certain circumstances people who have come to the country illegally will be, for perfectly legitimate reasons, unwilling to specify exactly how they got here for fear of exposing to punishment other people who assisted them. I can see that argument but there are many cases where people effectively avail of those notions to create a complete impenetrable bush around themselves and the thicket of assertions made by them means that nobody can ever get to the truth.

This Bill will provide criteria of credibility which are not in any sense mandatory in the sense that failure to pass one of these criteria will result in rejection of the application. These are criteria which by statute an officer of the Office of the Refugee Applications Commissioner or a member of the Refugee Appeals Tribunal will be able to have regard to without being told afterwards that the case was ultra vires and not within the purview of the legislation, and the applicant could say: "You should never have asked me any questions about my destroyed documentation or you should never have asked me about the fact that I had made a previous application - that was a wrong thing to take into consideration."

One of the principles regarding the Irish law of judicial review and the Irish law relating to whether people are acting lawfully intra vires or ultra vires in an administrative or quasi-judicial process and one of the criteria that the law lays down is whether they had regard to matters which were extraneous to their consideration. When one is assessing an individual’s credibility, does one believe the account they are giving or is it all cock and bull? It is frequently the position that somebody deciding one of these cases must make a decision because he is looking at an improbable case, but on the other hand it could be true. In those circumstances, the deciding officer must come to a view on the credibility of what he or she hears.

Section 11B provides that in the examination of credibility regard may be had to these issues. They do not determine anything and it does not mean that people are lying and should not be believed because they destroyed their documentation or because they made false representations earlier. It does not mean that this should not be done as soon as possible. The mere fact of a delay does not indicate somebody is lying on the merits of his or her case. However, these issues and failure to co-operate are ones to which a deciding officer may have regard.

While I acknowledge that the UNHCR says that the facts about the journey to Ireland are not relevant to the central question of whether the person is a refugee, I do not accept that a deciding officer has to determine that all such issues are irrelevant, that no attention should be paid to them and that they cannot be allowed to influence the officer's view of the applicant because there is no statutory basis for doing so.

If an applicant was asked how he or she got to Ireland and said he or she had come to Dublin Airport and took the train to the city centre, it is known he or she is lying on basic detail, which is irrelevant to his or her claim. In deciding who is credible and who is incredible, from my days as a barrister I know that it is frequently from matters of small detail extraneous to the central issue of a case that it is possible to sort out who is credible and who is willing to commit perjury. Although it is not a courtroom procedure, the same has to apply to somebody conducting a searching examination of an application. If an officer finds that constantly coming up on the radar screen are small lies on peripheral matters, it must be open to the officer to make some inference from that as to the credibility of the applicant.

We must make it clear beyond doubt that under the law in Ireland there is a duty to co-operate. People cannot believe they can come here and be marginal participants in a process, which the State sets in train for them. Lawyers advising them must indicate they have a duty to co-operate and in certain circumstances to take on the onus of proof. On Report Stage I may raise the issue of people raising at appeal matters with which we might reasonably have expected them to deal at first instance. That frequently happens and a completely different story is told at appeal from what is raised at first instance. Whereas it is not beyond the bounds of possibility for somebody to tell a lie and have a Pauline conversion to the truth on appeal, it is also the case that an applicant whose first story fell apart and was disbelieved might try to assemble a completely inconsistent but on the face of it more credible story the second time around to get out of the hole they dug for themselves on day one.

These are in effect methods to strengthen the hand of the investigative process and to assist in the process of distinguishing between credible and incredible, between bona fide and mala fide applications. These are urgently needed changes to our law.

The two major proposals here relate to the safe country of origin. I asked the Minister to indicate the countries he has decided to designate as safe countries of origin and the criteria used. Under the Dublin Convention if a prior application has been made, the applicant shall be presumed not to be a refugee unless he or she can show reasonable grounds. The UNHCR specifically asks that that section be deleted.

Page 4 of the UNHCR document deals with amendment No. 12, burden of proof. The UNHCR does not agree that the mere fact that an applicant had lodged a prior application for asylum should automatically lead to a presumption that the applicant is not a refugee as there might be valid reasons that he or she has left the State. It goes on to urge the deletion of lines 3 to 5 on page 11. This would indicate that the UNHCR sees this as contrary to the Geneva Convention in that there may be grounds in which a second application could be lodged.

For example if people travel between the two islands here it would not necessarily indicate they were country shopping so to speak. Asylum seekers arriving in the Irish or British jurisdiction might suddenly realise the ease of travel between the two countries. If they are genuinely fleeing persecution and genuinely anxious to get refuge in a country that is English speaking, they might like to hedge their bets by having applications in two countries.

That is my definition of forum shopping.

It is not done to avoid the system, but with the best of intentions to try to maximise the prospect of getting refuge or asylum. The Minister is specifically disbarring a person who might have done that. The Bill provides that if he or she has lodged a prior application for asylum in another state to the Geneva Convention, the applicant shall be deemed not to be a refugee.

Presumed not to be a refugee.

That is even worse.

No, it is possible to rebut it.

The applicant is presumed before seeking a rebuttal. It is immediately presumed that the person is not entitled to be a refugee. Stating, "shows reasonable grounds for the contention that he or she is a refugee" effectively rules out the possibility of that situation occurring. The Minister has stated his intention to eliminate all these secondary applications, so to speak. That is fine in a sense, but it is contrary to the UNHCR's rules. The UNHCR does not agree. It states that under the 1951 convention, it should not automatically lead to a presumption. The Minister is automatically presuming that the applicant is not a refugee and the UNHCR disagrees with him on this matter. I ask him to respond to that and to the safe country designation. I am not aware that any other jurisdiction has this clause. The Minister has told us that the European Union already has the carrier liability. What is the position with regard to the "safe country" concept? Has it any status in international law? Surely, it does not arise under the Geneva Convention? What is the Minister's source for this designation and what are the criteria for such designation of a country?

In relation to the international status of the safe country concept, it already applies in the United Kingdom, Austria, Holland and Germany. More importantly, at the Justice and Home Affairs Council meeting of the European Union, there is an instrument in preparation which will underpin this and give an EU basis for a safe country approach.

Will we have an opportunity to scrutinise that?

Yes, when it comes forward. It should not present a problem for us. I draw the Deputy's attention to proposed amendment No. 46, page 15, subsection (4). This sets out the criteria to which, having consulted the Minister for Foreign Affairs, I must have regard. One criterion is whether the country concerned is party to, and generally complies with, obligations under the convention against torture of the international covenant on civil and political rights and, where appropriate, the European Convention on Human Rights. A second criterion is whether the country has a democratic political system and an independent judiciary. A third criterion is whether the country is governed by the rule of law. Those are criteria which would distinguish most democracies from other countries.

We had a discussion yesterday on the Offences against the State Act. I wonder whether we would fall into those categories?

I listened to that debate, in which I did not want to divide my fire. A fascinating aspect of the decision of the United Nations Commission in Geneva is that the great majority of the states involved would not accord a jury trial to anybody in any of those circumstances. The commission, in its wisdom, decided that our method of differentiating between cases which do or do not get a jury trial was unfair. What fascinates me is that while most of those involved are totally ignorant of jury matters, they presume to lecture us on our selection process. Our Special Criminal Court, for which I have great respect, is fairer in its procedures than nearly all their non-jury courts - they do not have juries. It is extraordinary that people should lecture us on our selection processes, although their own arrangements do not remotely approach our position in terms of civil liberties. It appears to be the modern approach that one is subject to judgment by people whose standards are far lower than one's own in many respects and one has to take it on the chin and move on.

In that case, it is high time we separated mainland Ireland from that miserable little European Union.

I am not referring to the European Union, I am referring to countries, such as Cuba, which have much more oppressive regimes than many.

Cuba will not come into this category.

I cannot imagine designating Cuba as a country with a democratic political system and an independent judiciary. Currently, dissidents in Cuba are jailed for a quarter of a century for opposing the regime.

What about the United States?

This may come as a shock to some authorities in the Oireachtas who have friendly relations with Cuba.

I presume the United States would also be considered out of line as it retains the death penalty and has declared war, unilaterally, on another country.

The United States is a friendly country. The Deputy should address his amendments. I was asked what is a safe country of origin. I have referred to the concept which I believe exists. The United Nations High Commissioner for Refugees may be uncomfortable with that proposition, but that is the direction in which Ireland and the European Union are going. The UNHCR is not opposed to the concept of designating safe countries of origin for procedural purposes.

I wish to come to another point raised, that in some sense people will be denied their rights. That is not the case. One is not deemed not to be a refugee, one is presumed not to be a refugee. That presumption means that one must, by some affirmative evidence, displace a presumption that if one has applied elsewhere, but has not proceeded with that application, one is under an onus to provide a credible excuse as to the reason that is so and that if one does not comply in that regard, one will fail. Such a rebuttable presumption is not a form of rubber stamp whereby one faces an impossible task. It requires one to undertake an onus of strong explanation as to the reason the circumstances outlined have come into being.

I wish to make it very clear that the burden of proof generally lies on persons making a claim. In this case, however, if one is running two parallel asylum applications, I suggest it is perfectly reasonable to require a satisfactory explanation for that state of affairs, failing which it will be presumed that the person concerned is not an asylum seeker. The person will be given a full opportunity to rebut the presumption and to show, on the merits of the case, that he or she is in fear of persecution or whatever. However, if a person is running horses in two races at the same time, we will presume that they are not eligible to win in our race. That is the situation.

Deputy Costello referred to the position of a person who comes to Ireland and later finds that he or she can go to England. If one comes to Ireland and applies for asylum status, one may not leave Ireland without the permission of the Minister for Justice, Equality and Law Reform. In the circumstances the Deputy mentioned, all those concerned who go to the United Kingdom are in breach of the law. They came here on the basis of seeking asylum in Ireland and one of their undertakings in that regard was that they would not leave Ireland without the permission of the Minister.

Does that refer to the island of Ireland?

No. The requirement is that an asylum applicant shall not leave the State without the permission of the Minister. That is one of the rules - one must remain within the jurisdiction during the entire period one's application is being processed. A person in that position who goes to Britain without the Minister's permission will already have been warned of the consequences. This is not just a provision sitting in a statute book - people are given a leaflet setting out the terms under which they are allowed to apply for asylum status in this country. It is made clear they need not apply if they do not wish to do so but that if they apply, they must remain in this country unless they get the permission of the Minister for Justice, Equality and Law Reform to leave. There is no existing right to go on one's holidays to the Costa Brava or to England in search of a somewhat more amenable system of asylum seeking - people may not do that.

Does the same position apply in Britain, that one cannot leave the jurisdiction?

I believe so. This underpins the Dublin Convention in that when a person goes to a particular country and makes an asylum application, he or she is required to remain there rather than wander around the world making other applications and considering other options. If one is claiming the protection of the Irish State, one must be serious about it. One of the terms by which we determine whether the person is serious is on the basis of whether he or she is willing to agree to a condition that he or she must remain here until his or her application is fully processed. That is our law, which I do not regard as onerous.

Does it already exist?

It is already part of our law. On a few occasions asylum seekers were given travel documents for urgent purposes. If a person had to travel to London for an urgent medical operation, he or she would be provided with a travel document to allow him or her to leave. It is an offence to leave the country without permission.

It is already an offence. The fact that we replicate it with a similar provision in this legislation will not make us more effective in preventing such offences from taking place. How will we detect the offence? How will we know if the person went to another country and made an application there? What checks do we have?

That is what the Dublin Convention is designed to do and that is what Eurodac is designed to achieve. One has to provide one's fingerprints in either context. There is a Europe-wide system whereby it can be checked whether a person has applied in more than one jurisdiction. Between Ireland and the United Kingdom a common travel area exists, which is obviously vulnerable, but we have to have it due to the all-island dimension. It is very much in our interests that the area should continue to exist. It is a myth that it is somehow lawful for an asylum seeker to travel to the United Kingdom having applied for refuge here. As far as Irish law is concerned, it is an offence for such a person to leave the jurisdiction.

We have covered the amendments quite well. To assist the committee, I will not go through them one by one.

I call on the Deputy to move his amendments.

I move amendment No. 1 to amendment No. 45:

In the proposed new section 11A(1) of the Refugee Act 1996, to delete paragraph (a).

Amendment to amendment put and declared lost.

I move amendment No. 2 to amendment No. 45:

In the proposed new section 11A(1) of the Refugee Act 1996, to delete paragraph (b).

Amendment to amendment put and declared lost

I move amendment No. 3 to amendment No. 45:

In the proposed new section 11B of the Refugee Act 1996, to delete paragraph (b).

Amendment to amendment put and declared lost.

I move amendment No. 4 to amendment No. 45:

In the proposed new section 11B(d) of the Refugee Act 1996, in the fourth line, to delete “immediately on” and substitute “within a reasonable time of”.

Amendment to amendment put and declared lost.

I move amendment No. 5 to amendment No. 45:

In the proposed new section 11B(d) of the Refugee Act 1996, in the fifth line, after “State” to insert “or a reasonable time thereafter”.

Amendment to amendment put and declared lost.

I move amendment No. 6 to amendment No. 45:

In the proposed new section 11B of the Refugee Act 1996, to delete paragraph (k).

Amendment to amendment put and declared lost.

I move amendment No. 7 to amendment No. 45:

In the proposed new section 11B of the Refugee Act 1996, to delete paragraph (l).

Amendment to amendment put and declared lost.

I move amendment No. 8 to amendment No. 45:

In the proposed new section 11C(2) of the Refugee Act 1996, in the third line, to delete "at the earliest possible opportunity" and substitute "as soon as reasonably practicable".

This is the most simple and straightforward of my amendments and I wonder if the Minister will take it on board. It is provided that, in compliance with subsection 1, an applicant shall furnish to the commissioner of the tribunal at the earliest possible opportunity all the information in his or her possession. I do not recall seeing the phrase "at the earliest possible opportunity" in legislation before. What does it mean?

I will accept the Deputy's amendment.

Amendment to amendment agreed to.

I move amendment No. 9 to amendment No. 45:

In the proposed new section 11C(2)of the Refugee Act 1996, in the last line,after "procurement" to insert "requested by the Commissioner or the Tribunal and which is".

Amendment to amendment put and declared lost.
Amendment, as amended, agreed to.

Amendments Nos. 46 and amendments Nos. 1 to 13, inclusive, to amendment No. 46 are related. Amendments Nos. 10 to 12, inclusive, to amendment No. 46 are consequential on amendment No. 9 to amendment No. 46. Amendment No. 46 and amendments Nos. 1 to 13, inclusive, to amendment No. 46 may be discussed together, by agreement.

I move amendment No. 46:

In page 9, between lines 51 and 52, to insert the following:

"(d) by the substitution of the following section for section 12:

12.-(1) Subject to the need for fairness and efficiency in dealing with applications for a declaration under this Act, the Minister may, where he or she considers it necessary or expedient to do so, give a direction in writing to the Commissioner or the Tribunal or to both requiring either or both of them, as the case may be, to accord priority to certain classes of applications determined by reference to one or more of the following matters:

(a) the grounds of applications under section 8,

(b) the country of origin or habitual residence of applicants,

(c) any family relationship between applicants,

(d) the ages of 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,

(f) considerations of national security or public policy,

(g) the likelihood that the applications are well-founded,

(h) if there are special circumstances regarding the welfare of applicants or the welfare of family members of applicants,

(i) whether applications do not show on their face grounds for the contention that the applicant is a refugee,

(j) whether applicants have made false or misleading representations in relation to their applications,

(k) whether applicants had lodged prior applications for asylum in another country,

(l) whether applications under section 8 were made at the earliest opportunity after arrival in the State,

(m) whether applicants are nationals of or have a right of residence in a country of origin designated as safe under this section,

(n) if an applicant is a person to whom paragraph (a), (b) or (c) of section 2 applies.

(2) The Commissioner or the Tribunal shall comply with a direction given to him, her or it under this section.

(3) The Minister may by a direction revoke or alter a direction given by him or her under subsection (1).

(4)(a) The Minister may, after consultation with the Minister for Foreign Affairs, by order designate a country as a safe country of origin.

(b) In deciding whether to make an order under paragraph (a), the Minister shall have regard to the following matters:

(i) whether the country is a party to and generally complies with obligations under the Convention Against Torture, the International Covenant on Civil and Political Rights, and, where appropriate, the European Convention on Human Rights,

(ii) whether the country has a democratic political system and an independent judiciary,

(iii) whether the country is governed by the rule of law.

(c) The Minister may by order amend or revoke an order under this subsection including an order under this paragraph.

(5) In this section - "the Convention against Torture" means the Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment adopted by resolution 39/46 of the General Assembly of the United Nations on 10 December 1984;

"the European Convention on Human Rights" means the Convention for the Protection of Human Rights and Fundamental Freedoms done at Rome on the 4th day of November, 1950;

"the International Covenant on Civil and Political Rights" means the International Covenant on Civil and Political Rights adopted by Resolution 2200A (XXI) of the General Assembly of the United Nations on 16 December 1966.,".

This amendment is referred to at No. 13 on the explanatory memorandum. It replaces the current section 12 which deals with manifestly unfounded applications. This matter will now be encompassed by the new section 13 according to the provisions of amendment No. 47. Amendment No. 46 provides that the Minister may direct the Refugee Applications Commissioner or the Refugee Appeals Tribunal to accord priority to certain classes of asylum applications according to criteria set out in proposed sections 12(1)(a) to 12(1)(n), inclusive. It allows also for designation by the Minister after consultation with the Minister for Foreign Affairs of certain countries as safe third countries. To provide the committee with a better flavour of this amendment and of the way in which it fits into the overall scheme of things, it is necessary to advert in general terms to the content of Government amendments we have not yet reached. I ask the Chairman’s indulgence to refer forward.

Amendments Nos. 46, 47, 50, 56 and 57 offer a complete replacement of the current provisions of the Refugee Act 1996 for the foreshortened investigation of certain applications. The replacement scheme provides for the prioritisation of applications at first instance by reference to a range of criteria and for the acceleration of the appeals process for negative recommendations at first instance which have certain characteristics. The provisions of the 1996 Act imply a foreshortened first instance investigation process for an application which comes within one of the categories set out in section 12(4) of the Act at present and a recommendation under the section by the Refugee Applications Commissioner to the effect that the applicant should not be declared to be a refugee. Such a recommendation can be appealed to the Refugee Appeals Tribunal, but the appeal must be made within ten working days rather than within the usual 15 working days. The appeal will be determined on the papers with no oral hearing.

The tribunal, under the present section 16(2) of the 1996 Act may affirm the commissioner's recommendation that an application is manifestly unfounded or set it aside to be sent back to the commissioner for investigation. A difficulty with these provisions is that it is often not possible to determine whether an application comes within the categories in section 12(4) of the 1996 Act until it has been fully investigated. The power on appeal to remit such a case for a second full investigation can lead to a duplication of work for the commissioner and, possibly, for the tribunal if the matter is further appealed after a negative recommendation following the second investigation. The procedure is not really an accelerated one. If an applicant whose application is manifestly unfounded appeals, it means that a process which was meant to fast-track weak cases will turn out to be even slower when addressing cases which were slightly more complex than was imagined.

The proposals of amendments Nos. 46, 47, 50, 56 and 57 are designed to replace the above provisions with new arrangements which have a number of significant features. They provide for a priority investigation of selected classes of applications at first instance. A power is provided to allow the Minister to designate the classes for priority treatment. Selection for priority treatment at first instance does not carry any implication as to the soundness or otherwise of the basis of the application. Selection for priority treatment does not mean anything less than a full examination of the merits of each case, which is a point worth stressing. It represents an important departure from the implication if not necessarily the practice of the present section 12.

The Minister is to have the power to designate for priority investigations applications relating to safe countries of origin and to designate such countries with regard to the criteria set out. Following full investigation of an application as a priority or in the ordinary course, the commissioner produces a report which sets out the findings of the investigation and recommends whether the applicant should or should not be declared to be a refugee. If the report of an investigation with a negative recommendation includes a finding of the kind set out in section 13(6) of the 1996 Act, any appeal will be dealt with in an accelerated manner. The time for making an appeal in such a case will be ten working days rather than the normal 15, as is the case in manifestly unfounded cases. The appeal will be made on the papers only and no oral hearing will be available.

The findings set out at the new section 13(6) of the 1996 Act proposed in Government amendment No. 47 are broadly comparable with, though, in particular because these findings would apply only after the negative recommendation has been made following investigation of the claim to establish whether the applicant is a refugee, not necessarily equivalent to, certain of the "manifestly unfounded" criteria under the current procedure.

The Minister may direct that certain classes of cases be dealt with under a special procedure with the following features: applicants whose cases are to be dealt with under this procedure are to be notified at the start of the investigation that their cases are being dealt with in this way; and, if, following investigation, the commissioner makes a negative recommendation and the application has one of the characteristics set out in new section 13(6), any appeal against the recommendation must be made within four working days from the recommendation, as opposed to ten working days for other such cases.

The Refugee Appeals Tribunal's power to remit certain cases will no longer exist and, accordingly, the tribunal may not set aside the commissioner's negative recommendation unless it is satisfied that the applicant is a refugee. It must, therefore, address the merits of the issue on the appeal. The tribunal will, as a matter of priority, deal with cases having one of these characteristics in advance of other cases.

These provisions could lead one to ask what the proposal is designed to do. From now on, it will be possible to designate classes of cases according to their nature or country of origin, to have a fast-track appeal and for the Refugee Appeals Tribunal to prioritise such hearings. A person with a manifestly unfounded case, as we might describe it colloquially though not legally, will, therefore, find himself or herself brought to the top of the queue to be dealt with. In addition, we will no longer have circumstances whereby such persons will be sent back if their case is found not to be manifestly unfounded.

One of the criteria for the prioritisation of an application is the likelihood that it is well-founded. Therefore, a person who enters the country with a weak case will not be able to go through the procedure and rely on it to allow him or her to stay here for two to three months, depending on the state of play at the time. Likewise, the proposal aims to preclude persons with a weak case from trying, on realising there is a backlog of two or three months in the Refugee Applications Commission or Refugee Appeals Tribunal, to stay here for two or three months or, with good luck on their part, six months, despite having an unstateable case.

We are proposing to bring about circumstances in which a person in this category, that is, where there are good reasons to suspect that he or she is going through the motions to get a foothold in Ireland for the purpose of disappearing or other reasons, will face a regime in which he or she will be brought to the top of the queue at first and second instance, dealt with quickly and his or her case dispensed with, on a full hearing of the merits at both levels, on a priority basis.

It will also be possible to extend this procedure from cases which do not appear to be well-founded to those which do not appear from the written application to be stateable cases. Currently, when such cases are declared by the Refugee Applications Commissioner to be manifestly unfounded, the applicant may appeal and if the decision is reversed, he or she may start the process again and obtain considerable mileage from it. Essentially, we are proposing a system in which it is possible to give priority to bogus or apparently bogus cases. In other words, people who believe they can stay here for a number of months on the basis of producing a flimsy and bogus case will find that the system will respond to their case by giving them priority.

The obverse side of this coin is that persons who are obviously refugees and have clear cases do not find themselves having to go through the procedures and will also be prioritised. If, for instance, we are aware of a genocidal conflict in Rwanda and an aeroplane full of Rwandans arrives in Dublin and it is manifestly clear that they will be given refugee status, they will be brought to the top of the queue, pushed through the system, given refugee status and allowed, effectively, to participate and integrate in society, get jobs and residency permits and make plans accordingly.

The section is a recognition that the current system does not allow adequate prioritisation, either for manifestly well-founded or manifestly unfounded cases. It offers a way to sort out the sheep from the goats and give the former the priority to which they are entitled and the latter the priority their cases require.

As it is now 1.25 p.m., I suggest we try to complete amendment No. 46 and the amendments thereto even if we have to stay beyond 1.30 p.m. as envisaged. Is that agreed? Agreed.

In this section, the Minister proposes procedures for prioritising cases through a process which would not, perhaps, adequately deal with the substance of the applications in question. In other words, the system of procedures will take first rank in terms of prioritisation, whereas in the Geneva Convention the merits of the application receive first rank in terms of priority. The amendment proposes to prioritise the merits of the procedures. I accept, however, that the UNHCR is not dissatisfied with some of the proposals.

The Minister is assuming the responsibility and discretion for directing the commissioner and tribunal on this matter. It is difficult to envisage how the proposals will work out in practice given that it would be difficult to be able to come to a conclusion on many of the conditions. For example, with regard to the criterion that a case may be prioritised where applicants have made false or misleading misrepresentations, how will one ascertain whether this is the case before the commissioner has had an opportunity to examine the application in question?

In section 12(1) it is proposed that, where the Minister considers it necessary and expedient to do so, he or she may "give a direction in writing to the Commissioner or the Tribunal or to both requiring either or both of them, as the case may be, to accord priority to certain classes of applications." The Minister is putting the cart before the horse. One cannot decide on prioritisation until a substantial examination of the merits of the individual case has been completed. The only person who can decide on the merits of a case is the independent commissioner and, subsequently, the tribunal. The proposal would place the reins of prioritisation in the Minister's hands and allow him to decide who are the sheep and goats, thus removing a major part of the functions of the tribunal and commissioner. In doing so, it allows him to take a number of decisions integral to the work of the commissioner.

The range of conditions for prioritisation include the country of origin of the applicant, any family relationship between applicants, the dates on which the applications were made, considerations of national security and thelikelihood that applications are well-founded. Frequently one must wait until a substantial examination of a case has taken place before one knows whether an application is well-founded.

Other conditions include whether there are special circumstances regarding the welfare of applicants, whether applications do not show on their face grounds for the contention that the applicant is a refugee and whether applicants have made false or misleading representations. This prima facie evidence will not be immediately available in most cases.

A further condition refers to whether applicants have lodged prior applications - it will be some time before this information is available. Section 12(1)(l) of the new section to be inserted states that priority may be accorded to certain classes of applicants by reference to whether applications under section 8 were made at the first available opportunity after arrival in the State. I do not see why this constitutes a reason for prioritisation. Section 12(1)(m) states that reference will be made to the matter of whether applicants or foreign nationals have a right of residence in a foreign country designated as safe under the new section.

There will be a considerable lapse before the Minister can decide on the prioritisation procedure referred to in the Bill. It is impossible to see how prioritisation can be achieved without first considering applications, during which it would become apparent whether some person or group of persons should be afforded priority status. Under the legislation, as it stands, people will be put into categories into which they do not fit and they will be prioritised for the wrong purpose.

Suppose a foreign language student - who has been in the State for three years and who has outstayed his welcome - is approached by the Garda National Immigration Bureau and informed that he has been in the State for three years, that his residency entitlements have expired and that it is time to go home, that student might decide to make an asylum application. However, he would be in a different category from somebody who has just rushed into the country claiming he or she has been suffering persecution in another country. If a person has lived here for three years without having said a word about his having been persecuted he or she is in a different category.

Deputy Costello should note that there is no sense in which prioritisation changes the onus of proof. This is not like the matter we were dealing with previously - there is no presumption in these cases.

Subsection (1)(g) of the new section 12 refers to the, “likelihood that the applications are well-founded”. This involves a presumption by the Minister.

That involves the Minister making a decision by reference to something which, in his view, involves a prioritisation. However, "priority" only refers to the order in which the RAC does its business. If 300 Canadians come here on a plane and state that Canada is a tyranny and I give a direction that they are to be prioritised, it does not mean that their hearing will be different to that pertaining to others from different countries of origin - they will all get a hearing on the merits of their cases. I am looking at the matter from an outside-the-box, political point of view and I have to be in a position to say if a case will cause a problem and that we should deal with the people in question immediately. The integrity of our system would ordain that they not be simply made join the queue to be dealt with when everybody else is dealt with.

Does the commissioner or the tribunal, rather than the Minister, not have to decide whether there is a likelihood that the applications are well-founded?

Yes. I have to be in a position to deal with all eventualities on the basis of what is happening. The RAC is supposed to comprise an independent group of people who are supposed to carry out examinations of cases that come before them. They are not expected to constantly inform the Department of Justice, Equality and Law Reform about where each group of applicants comes from, be it Australia, New Zealand or wherever. They are not supposed to devise policy on the system but to carry out a function that is given to them.

My officials in the Department of Justice, Equality and Law Reform are in touch with the Garda National Immigration Bureau and we are examining trends relating to the countries from which people are coming and identifying new areas of persecution. If 1,000 women came from Islamic countries claiming that they were at the receiving end of threats of honour killings, somebody would have to take an overall view of the matter and decide whether this case should be dealt with immediately or whether the women in this new category of claims should simply be placed at the end of the queue. Prioritising is merely the giving of a direction that certain people are to be brought to the front of the queue and given exactly the same treatment as they would otherwise be expected to receive.

I have a problem with the list of matters by reference to which priority can be given to certain classes of applicant - it could lead to the prioritisation of everybody. If there were an accelerated process by which the Minister prioritised people on the basis of paragraphs (e) or (f), for example, would this have an effect on the applicants in that they have the burden of proof, given that it can take a while to prepare one’s case? If they are accelerated to the top of the list to be dealt with urgently, would this impinge upon the time they have to prepare their cases?

In deciding whether to make an order under the new section 12(4)(a), the new section 12(4)(b)(i) states that the Minister shall have regard to, “whether the country is a party to and generally complies with obligations under the Convention Against Torture, the International Covenant on Civil and Political Rights, and, where appropriate, the European Convention on Human Rights.” A country either complies with its obligations under these conventions or it does not and therefore the word “generally” should be removed from the paragraph.

Subsection (4)(b) also states that, in deciding whether to make an order under section 12(4)(a), the Minister shall have regard to whether the country is “governed by the rule of law.” The rules of law by which Saddam Hussein or Hitler governed their countries are not ones that we would like. The UNHCR uses a definition which should be included in this case. It deems a safe country of origin to be one that is governed by the rule of law, which observes the right to liberty and security of the person, the right to recognition as a person before the law and equality before the law, and which provides for generally effective remedies against violations of these civil and political rights and, where necessary, for extraordinary remedies. This would allow our legislation fall into line with the UNHCR designation guidelines, which necessitate that a country have a democratic political system and independent judiciary but also that its rule of law complies with the general norms of the criteria outlined.

The new section 12(1) involves the Minister's giving, on an ongoing basis, directions in writing to the commissioner or tribunal, or both, requiring either or both of them, as the case may be, to accord priority to certain classes of applications by reference to all the matters designated under the subsection.

Some of them, not all of them.

Why not do it the other way around? The Minister has charged certain independent people to deal with applicants, interview them and decide on their cases. Why could he not draw up a regulation that would dispense with the need for individual notifications in writing and say to the commissioner and the tribunal that, if the conditions listed in the legislation are fulfilled, they should be prioritized? How will the Minister be able to make the decision before the commissioner or tribunal? Rather than have written communication between the Minister and the commissioner, I would have thought the Minister would have told the commissioner and the tribunal to prioritise such cases. Why should there be an interjection from the Minister in the matter? The Minister will have to exercise discretion in cases when he or she is in possession of less information than the commissioner. The Minister will have to go through the list of considerations that are, essentially, part of the commissioner application, interview and determination process.

I will not go through all of them but I may select one or none. Let us suppose a case is decided in the High Court that makes it clear that the refugee appeals commissioner was correct to disregard one ground as a ground for protection. It might be sensible for me to give a direction to the commissioner or the tribunal that all cases where this point arises should be dealt with immediately. Otherwise, I will have to make direct provision for all of the people concerned——

It could be given as a general direction rather than have the Minister give it in writing. The Minister is saying he will have to give it in writing if a case arises. Why not give a general direction by way of regulations?

This is a general direction only. I will not ask for an individual case to be dealt with first.

I am saying the Minister may, where he or she considers it expedient, give the direction, as the case may be.

It relates to priority being given to classes of applications, not individual cases. I will tell the commissioner that as a case has been decided in the High Court——

The Minister will be going through the grounds of determination.

No. I will say the cases of the 200 people whose point has effectively been decided by the High Court should be dealt with.

Why does the Minister not make one set of regulations now? He could tell the commissioner to do something if certain circumstances arise, rather than give the direction in writing. That would make it clear that the Minister would look at cases as they arose and may then give a direction to the commissioner.

No, it is only for classes of cases. The position is that the Minister does not see all of this material; he or she does not know what an individual is claiming. I do not know what happened at Mount Street yesterday. I do not ask that priority be given to individuals; we are dealing with categories of cases. Safe country of origin would be an obvious example. If we were all agreed that Norway, for example, was a safe country of origin and I declared this to be the case, I could tell the commissioner to give priority to all cases of people from Norway. Likewise, if there was a civil war in Norway in which people were being butchered and the country was not a safe country of origin, I could ask that those coming from Norway be given priority and allowed to come to Ireland as refugees and to work and support themselves.

I still think the Minister is putting the cart before the horse.

I had a question regarding general compliance.

The United Nations is suggesting a more elaborate form of what the rule of law does or does not mean. We have considered this and our view is that if the country is a party to and generally complies with all of those matters, it could not fall short of the broader suggestion made by the UNHCR. This is a sufficient embodiment of the rule of law.

A procedural matter has arisen in the House regarding the Bill. There is a problem regarding its printing.

The select committee went into private session at 1.45 p.m and resumed in public session at 1.55 p.m.

I move amendment No. 1 to amendment No. 46:

In the proposed new section 12(1) of the Refugee Act 1996, to delete all words from and including "give" in the fourth line down to and including "them," in the sixth line and substitute "make regulations requiring the Commissioner or the Tribunal or both of them".

Although I would normally accept some amendments, there is none in this group which attracts me.

Amendment to amendment, by leave, withdrawn
Amendments Nos. 2 to 13, inclusive, to amendment No. 46 not moved.
Amendment put and declared carried.
Progress reported; Committee to sit again.
Sitting suspended at 2 p.m. and resumed at2.35 p.m.
The Select Committee met at 2.35 p.m.
Members Present:

Deputy J. Costello,

Deputy B. Moynihan-Cronin,

Deputy C. Cuffe,*

Deputy S. Ó Fearghaíl,

Deputy J. Deasy,*

Deputy C. O’Connor,

Deputy M. Hoctor,

Deputy D. O’Donovan,

Deputy B. Lenihan (Minister of State at the Department of Justice, Equality and Law Reform),

Deputy P. Power.

Deputy M. McDowell (Minister for Justice, Equality and Law Reform),

*In the absence of Deputies F. McGrath and D. McGinley, respectively.
In attendance: Deputy A. Ó Snodaigh.
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