Skip to main content
Normal View

Select Committee on Legislation and Security debate -
Tuesday, 6 Feb 1996

SECTION 11.

Amendment No. 50 was discussed with amendment No. 22.

I move amendment No. 50:

In page 12, subsection (1), lines 18 and 19, after "withdrawn" to insert "pursuant to the provisions of section 9 or 22, as the case may be".

Amendment agreed to.

I move amendment No. 51:

In page 12, subsection (2), line 27, to delete "may refer to such" and substitute "shall refer to the matters raised by the applicant and to such other".

The purpose of subsection (2) is to give the commissioner power to direct an authorised officer to interview an applicant and furnish a report on the application to the commissioner. The text of the subsection provides for the report of the authorised officer to refer to such matters as the officer or officers consider appropriate. However, I am concerned that this provision does not go far enough. The amendment will also oblige the authorised officer to ensure the report deals with any matters raised by the applicant. I am sure the committee will accept this should be done in the interest of fairness.

Amendment agreed to.
Amendment No. 52 not moved.

Amendments Nos. 53, 62 and 76 are related and all may be discussed together. Is that agreed? Agreed.

I move amendment No. 53:

In page 12, lines 31 to 35, to delete subsection (3) and substitute the following:

(3) (a) The applicant concerned may make representations orally, through an interpreter, through a solicitor or 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 such representations.

(b) 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 such representations.

As it stands, the Bill restricts the applicant to making representations in writing. This could unfairly restrict them in making their case, particularly if their command of English is not good. The purpose of the amendment is to provide for oral representations which could be made by the High Commissioner or any other person concerned with the application. The proposal involves the deletion of subsection (3) and the substitution of the wording of my amendment. This would allow oral representations to be made.

Section 11 already provides that an asylum seeker will be interviewed by an authorised officer of the commissioner. We are all concerned about the length of time it takes to process applications at present. However, the acceptance of amendment No. 53 would inevitably mean lengthening the procedure. In addition, it would place an impossible burden on the commissioner who could be called on to hear oral presentations in all cases.

As the Bill stands, all applicants will be interviewed by an authorised officer of the commissioner. If their cases go to appeal, they will have the right of an oral hearing before an appeal board. Does the Deputy agree asylum seekers will have ample opportunity to make oral presentations? I ask her, therefore, to withdraw amendment Nos. 53 and 62. Amendment No. 76 will fall if amendments Nos. 53 and 62 are withdrawn.

Amendment, by leave, withdrawn.

I move amendment No. 54:

In page 12, subsection (4) (a), line 36, to delete "may" and substitute "shall".

Under section 11 "The Commissioner may, for the purposes of his or her functions under this Act, by notice in writing, request the Minister, the Minister for Foreign Affairs or such other persons as may be specified in the notice to make such inquiries and to furnish to him or her such information in his or her possession or control as he or she may reasonably require within such period as shall be specified in the notice." By inserting the word "shall" in place of "may", it would be a statutory imperative for the commissioner to make these inquiries. There are fears that if it is not mandatory a genuine applicant could find that his or her application is refused by a commissioner who did not make sufficient inquiries.

There may be no need for a commissioner to make such inquiries. In those circumstances, it might have been seen as ridiculous that the commissioner would be mandated to make these inquiries if he or she did not believe there was any need to do so. However, that argument is defeated by the fact that an asylum seeker may have his or her application turned down because certain information was not sought by the commissioner.

The provisions of subsection (4) enable the commissioner to request the Minister for Justice, the Minister for Foreign Affairs or some other person to make inquiries or furnish information. Such a provision implies that such assistance or information cannot be unreasonably withheld. In this, as in all such activity, Ministers are subject to the supervision of the courts.

The amendment proposed by Deputy O'Donoghue obliges the commissioner to ask the Minister for Justice, Minister for Foreign Affairs or other person to make inquires or furnish information. Apart from the technical impossibility of obliging the commissioner to make a request to an unspecified person, the proposal imposes an unnecessary burden on the commissioner to make inquiries which may not be necessary and which may serve no purpose.

There has been widespread approval of the independent role which the Bill gives to the commissioner. One of the reasons for such approval was the feeling that it was better to have applications for asylum examined by a body which was independent of Government Departments which have functions in relation to immigration controls and foreign relations, etc.

The Minister for Justice, the Minister for Foreign Affairs and, indeed, the UNHCR may have sources of information which could be useful to the commissioner and subsection (4) seeks to ensure that the commissioner can call on assistance from these sources. However, to oblige the commissioner to do so, is to imply that the commissioner cannot assess when such assistance is required or that the commissioner might wilfully ignore potential sources of information.

The proposed amendment also gives the two Departments concerned a mandatory role in relation to asylum applications which flies in the face of the concept of an independent commissioner — the thrust of the Bill. Perhaps Deputy O'Donoghue might, in the light of what I have said, reconsider his amendment as I am convinced that the result is not what he would wish and I cannot accept it.

I am still of the opinion which I expressed. However, I will withdraw the amendment in the light of what the Minister said.

Amendment, by leave, withdrawn.
Amendment No. 55 not moved.

I move amendment No. 56:

In page 13, subsection (6), line 1, to delete "subsection (7)" and substitute "subsection (7),".

Amendment agreed to.

Amendments Nos. 57 and 83 are related and may be discussed together. Is that agreed? Agreed.

I move amendment No. 57:

In page 13, lines 8 to 14, to delete subsection (7).

Section 11 (7) allows the commissioner to keep information from those concerned with a particular case. It states: "Where information has been supplied to the Commissioner, a Department of State or another branch or office of the public service by or on behalf of the government of another state in accordance with an undertaking (express or implied) that the information would be kept confidential,".

In those circumstances information cannot be disclosed without the consent of the other state. I understand the pragmatic logic behind this subsection, but I question whether the commissioner would be legally entitled in accordance with principles of natural justice, and even the Constitution, to withhold such information. It is not in the interests of natural justice or, indeed, the principles of the 1937 Constitution that such information should be kept confidential and I cast doubt on the legal validity of the provision on those grounds.

It is not proper for the commissioner to enter into an agreement to keep information from an individual in relation to his or her application. This measure could be successfully challenged in the course of an application. I tabled this amendment to caution the Minister in this regard and I will interested to hear her reply.

The Deputy put this very well and he is aware of the difficulties and sensitivities in this area. These subsections put beyond doubt what would in their absence most likely be the case anyway — that proper respect would be paid to the long-standing principle of international diplomacy that information provided by one state to another on an undertaking of confidentiality will be guaranteed confidential treatment.

If the Deputy believes that the absence of this subsection will allow undertakings of confidentiality to be ignored, I suspect that he is much mistaken. I am of the opinion that were such undertakings to be flouted, this country would be displaying little sense of honour. I am satisfied that we should honour such commitments and that the Bill should put beyond doubt that that is our intention.

If what the Deputy said is the ? maybe the commissioner should ? to accept information offered on ? undertakings. The practical difficulty is that the regimes in relation to the divulging of information vary dramatically from one country to another. For instance, in Sweden a Minister's post each morning is publicly available, whereas other states operate in a highly confidential and secretive manner as regards all information — I am not referring to this country. We may get information on a confidential basis and we would need to respect the confidentiality of that information.

I understand the Minister's difficulty. Amendment No. 83 also relates to the withholding of information. I am concerned that a genuine applicant for a declaration could be refused information for an undisclosed reason. It is contrary to the terms of natural justice that an individual would be refused a declaration on foot of information which was not disclosed to the individual concerned. An action in any court regarding this would be interesting.

I understand the necessity to comply with international agreements. I also recognise the question of international law in the context of the Constitution and the need to recognise international agreements. However, in this instance we are considering the case of an individual who makes an application and who is not given any information, or is at least denied some information. Nevertheless, I withdraw the amendment.

Amendment, by leave, withdrawn.
Amendment No. 58 not moved.

Amendment No. 59 is out of order as it involves a potential charge on the Exchequer.

Amendments Nos. 59 and 60 not moved.
Section 11, as amended, agreed to.
The Select Committee adjourned at 6.12 p.m. until 12 o'clock on Wednesday, 7 February 1996.
Top
Share