I suggest that Members consider adjourning or perhaps concluding — I realise that is ambitious — by 2 p.m. We will not put a definite time on it but we can review matters at 2 p.m. Is that agreed? Agreed.
SECTION 12.
I move amendment No. 61:
In page 13, subsection (2), line 42, to delete "the issue of the notice" and substitute "the sending of the notice".
Subsection (2) of section 12 allows for the making of representations within 14 days of the issue of the notice. I submit that the time should run from the date of the sending of the notice and not the date of issue as this would be in accordance with usual legal practice.
I accept the amendment.
Amendment agreed to.
Amendment No. 62 has already been discussed with amendment No. 53.
Amendment No. 62 not moved.
Amendment No. 63 relates to a discussion we had earlier.
Amendment No. 63 not moved.
Amendment No. 64 is in the name of Deputy O'Donnell. Amendments Nos. 65 to 68, inclusive, are alternatives to amendment No. 64. Therefore, amendments Nos. 64 to 68, inclusive, may be discussed together.
I move amendment No. 64:
In page 14, lines 9 to 46, and in page 15, lines 1 to 9, to delete subsection (4).
The rationale given for section 12 in the explanatory memorandum is "to avoid delaying the processing of genuine applications". In my view such a reason attaches excessive weight to speed at the possible expense of fairness. While it is conceivable that the criteria specified in subsection (4) might ultimately provide valid grounds for the commissioner to refuse to recommend the granting of a declaration, it may be most unfair for the applicant to be burdened with the additional onus of demonstrating from the outset that the application is not manifestly unfounded. The thrust of the legislative scheme on which we are deliberating should be to afford an applicant a fair hearing at which he or she can justify the claim for recognition as a refugee. I question whether the hearing could be said to be truly fair if the applicant has to fight the assumption that the application is manifestly unfounded.
We could have attempted to delete section 12 in its entirety but this would probably have been unsuccessful. We considered alternative approaches to amend the procedure provided for this section. The amendments in my name are concerned with replacing the formula of "without reasonable cause" with "was not, having regard to the applicant's particular circumstances, reasonable". My aim is to introduce a subjective element to the test of the applicant's actions.
It is hard to see how a deliberately misleading representation could ever be viewed objectively as reasonable. We considered trying to delete particular paragraphs of subsection (4), which defines manifestly unfounded applications. There is a general concern on the part of Deputy O'Donoghue and I about such applications. My amendments attempt to introduce a subjective test to be applied to the applicant's actions.
One of the amendments deals with whether there might be circumstances where it would be unfair to the applicant to rigidly enforce the 14 day period for lodging an appeal. Under the Bill as drafted, the appeal board has no discretion to relax the 14 day rule. These amendments are related to concerns we have about this section.
With regard to amendment No. 65, concerns have been expressed by people who are extremely interested in this Bill that the concept of "manifestly unfounded" speaks for itself and that there is no need in subsection (4) to elaborate on what a manifestly unfounded application means. A manifestly unfounded application is defined in paragraph (a) of the subsection as an application "which does not show on its face any grounds for the contention that the applicant is a refugee". This merely states the obvious and it is already clear that such an application would be manifestly unfounded. Paragraph (b) points to the dangers of inadequate or no interpretation where interpretation may be necessary at the early stage of the process.
Under paragraph (c) the commissioner must be "satisfied that the applicant's reason for leaving or not returning to his or her country of nationality does not relate to a fear of persecution". Such fear is a subjective element. There is no requirement in paragraph (c) that the commissioner should be reasonably satisfied that the applicant's reason for leaving and not returning to his or her country of nationality does not relate to fear of persecution. The case has been reasonably made to me that, given that the commissioner is not required by the terms of the subsection to make sufficient inquiries or obtain sufficient information to enable him or her to make an informed decision on the application, a genuine applicant could find his or her application wrongly deemed to be manifestly unfounded under this definition. An application of a genuinely terrified applicant could be deemed to be so unfounded on the grounds set out in paragraphs (e), (f) and (g).
Given that the sole purpose of an application for a declaration is to avoid removal from the State, it is not easy to understand why paragraph (h) has been included. In effect, it could result in all applications being deemed to be manifestly unfounded. It is also felt that to ensure paragraph (j) does not result in an applicant being refouled to a state which is a party to the Geneva Convention and being further refouled to the state from which he or she fled prosecution, a proviso needs to be added requiring the commissioner to make sufficient inquiries and take sufficient measures before an application is deemed to be manifestly unfounded. It is felt that a genuine illiterate applicant, for example, could find his or her application deemed to be manifestly unfounded under paragraph (k).
The words "manifestly unfounded" speak for themselves and need no explanation. Paragraph (a) provides a sufficient explanation of what a manifestly unfounded application should properly mean. If the application is manifestly unfounded, the application on its face could not show any grounds for the contention that the applicant is a refugee. A manifestly unfounded application is, if I may say, manifestly explained in subsection (4) (a). To this extent all other provisions explaining what is meant by a manifestly unfounded application appear to be superfluous.
Leaving in these provisions can only endanger a genuine application. Since they are of no benefit in explaining the meaning of a manifestly unfounded application, it seems that, on balance, the danger of a genuine application being refused by virtue of elaborating on the meaning of a manifestly unfounded application leads to the only logical conclusion that can be reached in the interest of the applicant; paragraphs (b) to (1) should not be included in the legislation.
This matter came up for detailed discussion when the previous Bill was before the committee and a number of amendments were made to the section to reflect the concerns of Members at that time.
Manifestly unfounded applications cause significant problems for many countries. They are a matter of concern to the UNHCR because they cause delay and difficulties with genuine applicants. The Executive Committee of the UNHCR has drawn attention to the problem of manifestly unfounded or abuse of applications for refugee status or asylum and considers that national procedures "may usefully include special provisions for dealing in an expeditious manner with applications which are considered to be so obviously without foundation as not to merit full examination.". European Union Ministers also passed a resolution on the subject in 1992. There is general agreement that manifestly unfounded applications act to the detriment of genuine applications and can have the effect of either slowing down the system enormously or, in some cases, almost making it unworkable.
In this Bill, the grounds on which the refugee applications commissioner may form the view that an application is manifestly unfounded are rebuttable. Accordingly, the applicant will be told the reason an application is considered unfounded and they will be given an opportunity to put forward a case that the application is not manifestly unfounded. The applicant does not have to prove their case but only to show the commissioner that it is worthy of full investigation.
The Executive Committee of the UNHCR said the applicant should have an opportunity of a personal interview by a fully qualified official — the authorised officer of the commissioner in our case — and they will have an opportunity to appeal any negative decision. The appeal is the full appeal procedure available to all applicants and it includes the right to an oral hearing with the appeal board. If it is satisfied the application is not manifestly unfounded, the commissioner will then be directed to investigate the matter. People who have raised genuine concerns about this contentious area should appreciate that, once the commissioner decides an application is manifestly unfounded, he has to give grounds for that which are then rebuttable by the applicant and are subject to a full appeals procedure and oral hearing. It is not as if somebody is being refused because of manifestly unfounded grounds and is then being bundled out of the country; that is not happening. They are only being given a declaration by the commissioner and they then have a right to an appeal.
Section 12 (4) (c) would come about if there is strong evidence that the person made an application for asylum for a reason unrelated to a fear of persecution. The investigation might show that somebody has only made an application to gain access to another country.
The Deputy also referred to applicants who used false or forged documents to support an unfounded claim. I accept that a refugee may have to travel under a false identity or use false documents when escaping from a country. For this reason the provision has been redrafted from the last committee meeting to provide that a presumption of manifestly unfounded only arises when the person did not have reasonable cause for not revealing the false nature of the documents. However, once the person has been told their rights, has had an opportunity to consult a solicitor and has been given access to the State, he or she would be expected to reveal at that stage if false or forged documents were being used. If the process is to be valid, the applicant has to tell their story honestly even if they had to use a false cover to get into the country in the first place.
Points were raised on section 12 (4) (j), which refers to situations when a person who could be mentally unbalanced or seeking publicity wants to go from a country which is already a party to the Geneva Convention, such as Canada or Sweden, and claims asylum in Ireland. This paragraph has been redrafted to clarify the presumption that the country is safe is again rebuttable and if the applicant can show evidence of persecution, the commissioner must carry out a full investigation.
There have been a number of cases under section 12 (4) (k), where the person makes an application but then disappears by either moving to another country or does not notify their change of address so that the commissioner cannot locate them in this country. A person who, of their own volition, disappears and does not respond to communications from the commissioner cannot be regarded as making their application in good faith. In any event, it would be virtually impossible to investigate a case faced with such passive obstruction as the disappearance of the applicant. Rather than leave the case unresolved, the commissioner may decide to deal with it as a manifestly unfounded application.
Amendment No. 68 makes an alternative proposal to this wording and I will be happy to discuss it with the parliamentary draftsman. Amendment No. 66 does not change the meaning of the section but I will also be happy to discuss it with the parliamentary draftsman to take the Deputy's concerns on board and I will do the same with amendment No. 68. However, many amendments have been made to this section. I appreciate the fears of the NGOs and Deputies that genuine applicants may feel that they may get a short hearing and find themselves disqualified when they are making bona fide applications. We are trying to exclude or fast track manifestly unfounded or vexatious applications which act to the detriment of genuine applicants.
In my discussions with the UNHCR, it has been at all times at great pains to emphasise that for the protection of genuine refugees, it is necessary to uphold the Geneva Convention. Therefore, genuine refugees will be accepted but those who are not will fail to qualify and this will also apply to manifestly unfounded applications.
I accept what the Minister said. We are limited through this Bill from not straying too far from the convention. We will discuss these matters again on Report Stage when the Minister has had an opportunity to consult the parliamentary draftsman.
I will adopt the same attitude but I am extremely concerned about section 12 (4) (c). I strongly believe that the commissioner should be obliged to be at least reasonably satisfied. Given that the amendment yesterday in relation to section 11 was rejected, which would have obliged the commissioner to obtain information, it seems that an application could be turned down by the commissioner under subparagraph (c) and the application could be genuine. I ask the Minister, prior to Report Stage, to see if the word "reasonably" could be inserted before "satisfied". However, we can return to the matter and I will withdraw my amendment.
My advice is that the commissioner cannot be "satisfied" of a particular situation without having made reasonable inquiries. However, I will speak with the draftsman about this matter and come back to it on Report Stage.
Does subsection (5) act as a safety valve? Will the right of appeal not cover anybody who feels aggrieved at being turned down?
Yes, and when Deputy Browne spoke yesterday he reflected the desire of all the parties in the House to ensure that genuine applicants are dealt with as quickly as possible. As the Deputy said yesterday, the biggest problem with our current system is the slowness of the procedure. In the month of January, for instance, we had 100 applicants for refugee status. The cost to the State per 100 applicants is of the order of £500,000 per year. In terms of doing justice to genuine applicants but also of finding a mechanism to deal well with a growing problem, the sections here are fair and just.
Amendment, by leave, withdrawn.
Amendments No. 65 to 68, inclusive, not moved.
Amendment No. 69 in the name of Deputy O'Donnell. Amendments 69 and 71 are related and may be discussed together. Is that agreed? Agreed.
I move amendment No. 69:
In page 15, subsection (5), lines 13 and 14, after "recommendation" to insert "and request an oral hearing".
I will withdraw these amendments, if I am correct in assuming that we discussed this matter yesterday. Their withdrawal is contingent on that earlier discussion.
Amendment, by leave, withdrawn.
Amendment No. 70, in the name of Deputy O'Donnell. Amendments 70 and 72 are related and may be discussed together. Is that agreed? Agreed.
I move amendment No. 70:
In page 15, subsection (5), line 14, after "notice" to insert "or such longer period as the Appeal Board may feel the applicant's particular circumstances warrant".
The reason for this amendment was that there might be circumstances where it would be unfair to the applicant to rigidly enforce the 21 day period for lodging an appeal, but under the existing wording the appeals board has no discretion to relax the 21 day rule. This amendment is an effort to introduce some flexibility.
The purpose of the Bill is to set out fair procedures which are clear and consistent and a time limit for the appeal has to be unambiguous in the interests of fairness to everybody. I could not accept a position where the time limit could be altered at the discretion of the appeal board. I would be particularly concerned that this could lead to delays and confusion when we are trying to achieve a fair and efficient procedure. The time limits concerned, 14 days for manifestly unfounded and 21 days for other appeals, are already quite generous. I reject these amendments.
Amendment, by leave, withdrawn.
Section 12, as amended, agreed to.