Josef Demeter, Monika Demeterova, 2002 July 26. High Court Dublin

Posted on 2015, June, 25 by foxblog

Josef Demeter, Monika Demeterova, Minor Demeter A, Minor Demeter B, 2002 July 26. High Court Dublin

This appears to be a Judicial Review of their treatment as refugees in Europe. The “Demeters” were convicted of offences in Sheffield. They trafficked people for sexual exploitation.

This post will be referenced in [3] Cathy Fox Blog to be published Sex Slavery – Slave Girl Return to Hell by Sarah Forsyth and Tim Tate

For indexes of Court of Appeal Documents and newspaper articles:

An Index / Timeline of Newspaper Articles on Cathy Fox Blog [1]

An Index / Timeline of Court Appeal Documents on Cathy Fox Blog [2]

Demeter v Minister for Justice [2002] 7 JIC 2601

THE HIGH COURT

DUBLIN

2001/839 J.R.

IN THE MATTER OF AN APPLICATION PURSUANT TO THE ILLEGAL IMMIGRANTS
(TRAFFICKING) ACT, 2000

BETWEEN/
JOSEF DEMETER,MONIKA DEMETEROVA, [minor] DEMETER A (A MINOR SUING BY HIS
MOTHER AND NEXT FRIEND,MONIKA DEMETEROVA) AND [minor] DEMETER B (AMINOR SUING BY
HIS MOTHER AND NEXT FRIEND,MONIKA DEMETEROVA

Applicants

-and-
THE MINISTER FOR JUSTICE,EQUALITY AND LAW REFORM AND CHAIRMAN,THE REFUGEE
APPEALS TRIBUNAL AND THE REFUGEE APPLICATIONS COMMISSlONER

Respondents

Judicial review – Certiorari – Refugee law – European law – Immigration
and asylum – Transfer of refugee application – Practice and procedure –
Whether State entitled to transfer refugee application to other Convention
country – Whether necessary for State to first obtain deportation order –
Refugee Act, 1996 – Immigration Act, 1999 – Dublin Convention
(Implementation) Order, 2000 (SI 343).

Facts: The case concerned a number of applicants, members of the same
family, all of whom had sought and had been refused refugee status in other
countries. Before coming to Ireland the applicants had been refused refugee
status in Belgium. The Refugee Applications Commissioner (“the
Commissioner”) had determined that their applications for refugee status
should be properly examined in Belgium under Article 10(1)(e) of the Dublin
Convention. The applicants were notified of this determination and appealed
the decision. The Refugee Appeals Tribunal (“the Tribunal”) upheld the
decision of the Commissioner and held that Belgium was obliged to accept
the applicants under the Dublin Convention. Judicial review proceedings
were commenced by the applicants seeking to prevent their transfer on the
basis that in the circumstances the Dublin Convention (Implementation)
Order, 2000 (SI 343) did not authorise their transfer.

Held by Mr. Justice Smyth in making the following orders. Upon arrival in
the State the applicants had been given a notice of possible transfer under
the Dublin Convention. The fact that an application for asylum was not
successful, even to the point of refusal, did not detract from the express
will of an applicant to be considered as a refugee. The decision of the
Tribunal did not of itself purport to authorise the transfer of the
applicants to another State. On the determination that an application for
asylum be transferred to a Member State for examination there then next
followed a separate process for the transfer of the applicants to the
Member State. In order for this to happen a deportation order was required.

APPROVED JUDGMENT DELIVERED BY MR. JUSTICE T.C. SMYTH

ON FRIDAY, 26TH JULY 2002

I hereby certify the following to be a true and accurate transcript of my shorthand

notes of the evidence in the above—named action. Charles Beggs

MR JUSTICE T.C. SMYTH DELIVERED HIS JUDGMENT AS FOLLOWS

MR. JUSTICE SMYTH:

The Applicants are Czech nationals and are members of the gypsy Roma
community. The first and second named Applicants are the parents of the
third and fourth named Applicants. The said Applicants had applied for
refugee status elsewhere before coming to Ireland. In answer to question 69
of the Questionnaire signed in regard to the application for refugee status
made in this country they indicated that they had resided in Germany from
7th March 1991 to the year 1992; they were in Denmark during the year 1993
and again in the Netherlands in the same year and were in Belgium between
1997 and 2001. They indicated that they received a negative decision in all
countries in which they had applied for asylum and that they lived in those
countries in which they applied for asylum and that they also felt safe
there. The first named Applicant had at the date of the Questionnaire a
sister, Savakova, and brother-in-law Duna in Ireland.

In the same Questionnaire it was stated that the Applicant would like to
stay in this State and in case any application for asylum here is refused
he and his family would like to go to Canada.

On 30th January 2001 the first and second named Applicants applied for
asylum pursuant to Section 8 of the Refugee Act 1996 (as amended)
(hereinafter referred to as “the Act of 1996”) . Included in both
applications were the names of their two dependant children, the third and
fourth named Applicants. The first and second named Applicant were
interviewed separately on 3rd February 2002 pursuant to Section 8 of the
Act of 1996 and the names of their two dependant children were included in
those interviews.

At no stage in the process with the office of the Refugee Applications
Commissioner (hereinafter referred to as “the Commissioner”) did the third
or fourth named Applicant submit applications in their own right, nor was
there any indication by any of the Applicants that they wanted to do so. On
their arrival in the State the Applicants were given (inter alia) a notice
of possible transfer under the Dublin Convention. At the same time they
were given a leaflet by way of explanation which contained information
concerning the Dublin Convention.

This makes clear that the Convention which came into force on 1st September
1997 provided a mechanism for determining which Convention country is
responsible for examining an application for refugee status:

that Ireland may request the Convention country (in respect of which an
Applicant had lodged or had an asylum application examined or had entered
the EU through another Convention country or where an Applicant had a valid
residence permit or a valid visa for another Convention country) to accept
responsibility for the asylum application for a declaration as a refugee
and that a possibility of being transferred to that country existed.

None of the Applicants made any representations in relation to the possible
transfer of their applications under the Dublin Convention. Pursuant to the
provisions of Section 22(c) of the Act of 1996 the Minister was empowered
to make an order that the Commissioner may not investigate the merits of an
asylum application in this State until she or he has decided whether
another Convention country is responsible for examining the asylum
application.

An application was made under Article 15 of the Dublin Convention to
Belgium on 8th February 2001 for information relating to each of the four
Applicants. On 21st June a response was received from Belgium indicating
that the first and second named Applicants had applied for refugee status
on 23rd December 1997, 30th September 1998 and 3rd October 2000.

Their last applications for refugee status were refused on 29th March 2001.
Although the Belgian authorities apparently believed that the Applicants
had returned to the Czech Republic on 16th January 2001 there was no
evidence to support this. On 23rd July 2001 a formal application was made
to Belgium to accept each of the Applicants under Article 10(1) (e) of the
Dublin Convention and to admit them to Belgium for the purpose of examining
their asylum application.

Their transfer under the Dublin Convention was accepted by Belgium under
Article 10(1) (e) of that Convention on 5th October 2001. The Commissioner
determined that the applications of the first and second named Applicants
together with their dependant children should properly be examined in
Belgium and the Applicants were notified of this determination by notices
of determination dated 8th October 2001.

On 16th October 2001 a consent by the first and second named Applicant was
received which authorised their Questionnaires, interview notes and other
documents to be released to the Refugee Legal Service. With the benefit of
legal assistance and advice the Applicants appealed the first instance
decision. These matters were considered by the relevant Tribunal member and
his decision is dated

22nd November 2001

From the terms of the decision, the grounds of appeal (including an
amendment of 5th November 2001) it is clear that all documents furnished to
the Tribunal member were considered by him. The decision of the Tribunal
was that the determination of the Commissioner was in conformity with the
Dublin Convention (Implementation) Order 2000 (hereinafter referred to as
“the Implementation Order”) and that Belgium was obliged to accept the
Applicants and was the Member State responsible for dealing with the matter
of applications in respect of their asylum claims.

The first and second named Applicants were notified that their appeals had
been unsuccessful by letters dated 26th November 2001 and they were
notified at the same time that all relevant papers had been furnished to
the Minister to arrange for their transfer to Belgium under the Dublin
Convention.

In the pleadings the Respondent avers that there is no reason to believe
that the Applicants’ claim for asylum would not be fairly or properly
considered by the authorities in Belgium in accordance with the principles
of international law if they were transferred to Belgium. Belgium is a
signatory to the UN Convention on the Status of Refugees 1951 as amended by the New York Protocol 1967 and the Dublin Convention and the
European Convention for the Protection of Human Rights and Fundamental
Freedoms.

Matters such as change of circumstance since the Applicants’ last
application in Belgium were considered to be matters which fall to be
considered by Belgium and are not relevant to determining which Member
State has responsibility for the Applicants’ applications under the Dublin
Convention.

Under Article 10 of the Implementation Order a Member State shall be
obliged to take back a person for whose application it is responsible under
the Dublin Convention. Article 10(1) (e) to the extent that it is in point,
provides that:

“The Member State responsible for examining an application for asylum
according to the criteria set out in this Convention shall be obliged to…

(e) Take back, under the conditions laid down in Article 12 an alien whose
application it has rejected and who is illegally in another Member State.”

Article 10 is simply the mechanism by which an Applicant may be transferred
once responsibility for his or her application has been determined in
accordance with the criteria set out in Articles 4 to 8 of the Convention.

The application for leave to apply for judicial review before the court was
confined to one ground

“Statutory Instrument 343/2000 does not authorise transfer in accordance
with Article 10(1) (e) of the Dublin Convention to another Member State of
the said Convention. Instead, the applications of persons who have
completed the asylum process in another State may, in the event that no new
circumstances exist, be deemed to be manifestly unfounded pursuant to
Section 12(4) (i) of the Refugee Act 1996. In the event that new
circumstances do exist the Applicant should be making a new and distinct
application for recognition of refugee status and the provisions of the
Dublin Convention shall not have effect in that instance.”

The decision of the Tribunal in the instant case is based on the findings
of the Member, who on 22nd November 2001 expressed himself in this way:

“I find that Belgium, under Article 10(1) (e) of the Dublin Convention is
required and obligated to accept the Applicants back to Belgium and is the
Member State responsible for dealing with any matter or application in
respect of their asylum claim.

I find that the grounds of appeal do not make out a case that Belgium is
not entitled to deal, with this matter under Article 10(1) (e) of the
Dublin Convention and I find that the Applicants have not established any
grounds under Articles 4 to 8 of the Dublin Convention in respect of their
applications for asylum in the Republic of Ireland.

I find that the Applicants have applied for asylum in Belgium and I find
that Belgium, under Article 10(1) (e) of the Dublin Convention is required
and obliged to accept the Applicants back to Belgium under the said
article, being the Member State where the Applicants first applied for
asylum, the applications having been rejected, and who are now illegally in
another Member State and for Belgium to deal with any matter or application in respect of the Applicant’s claims.

I find that the decision of the Refugee Applications Commissioner is in
conformity with the Dublin Convention (Implementation) Order 2000 and I
find that Belgium is the Member State responsible for accepting or taking
back the Applicants under Article 10(1) (e) of the Dublin Convention and to
deal with any matter or application in respect of the Applicant’s asylum
claims.”

It was well known to the Commissioner and the Tribunal from the Applicant’s
own replies to the Questionnaire that they had made unsuccessful applications in the past in Belgium.

The criteria to be applied by the decision makers are as stated in Article
3 of the Dublin Convention to be those set out in Articles 4 to 8 of that
Convention in the order in which they appear, the same criteria are
applicable within Article 7(7) in relation to appeal decisions by the
Tribunal. Article 8 of the Convention provides:

“Where no Member State responsible for examining the application for asylum
can be designated on the basis of the other criteria listed in this
Convention, the first Member State within which the application for asylum
is lodged shall be responsible for examining it.”

The Applicants submitted that both the Commissioner and the Tribunal based
their decisions on Article 8 of the Dublin Convention, i.e. on the basis
that Belgium was the first State in which the Applicants

had submitted applications for asylum and consequently, the transfer of the
Applicants was authorised pursuant to Article 3(1) (e) of the
Implementation Order.

I do not consider it was – though it was contended —conjecture to view the
decision as based on Article 8 of the Dublin Convention simply because
there was no express reference to it. The Applicants further submitted that
even if the decisions were based upon Article 8 this was of no import as
Article 3(1) (e) of the Implementation Order, provides that:

“3(1). Where an application is made under Section 8 of the Act (vis the Act
of 1996), the Commissioner shall determine whether the application

(c) Should be in accordance with the criteria set out in Articles 4 to 8 of
the Dublin Convention (applied in the in order which they appear therein)
be transferred to a Convention country for examination.

From this it was sought to argue that this did not overcome the Applicant’s
argument that the Implementation Order does not authorise in fact the
return of the Applicants (to Belgium) The Respondent’s submission is that
the instant case is one that comes within the terms of Article 3(1) (c) of
the Implementation Order as it is a transfer to a Convention country which
is being made in accordance with the criteria set out in Articles 4 to 8 of
the Dublin Convention.

It is clear from the documents that the Irish authorities requested the
Belgian authorities:

“To take charge of the above named Applicants and admit the Applicants to
your territory for the purpose of examining their case for asylum in
accordance with Article 10(1) (e) of the Dublin Convention.”

The fact that the application for asylum is not successful — even to the
point of refusal, does not detract from the express will of an Applicant to
be considered as a refugee. An Applicant on the other hand who withdraws
from the asylum system signifies that he or she no longer wishes to be
considered or regarded as a refugee. The two positions are quite distinct,
an argument advanced as if they were synonymous I found unenlightening.

The decision of the Tribunal does not of itself purport to authorise the
transfer to another State of the Applicants.

Article 3(1) of the Implementation Order provides:

“Where an application is made under Section 8 of the Act the Commissioner
shall determine whether the application –

(c) Should in accordance with the criteria set out in Articles 4 to 8 of
the Dublin Convention (applied in the order in which they appear) be
transferred to a Convention country for examination.” (Emphasis Added)

the term “examination of an asylum application” is

not defined in the Implementation Order. However, the term is used in
Article 8 of the Dublin Convention and defined in Article 1(1) (d) of that
Convention as:

“Examination of an application for asylum means:

All the measures for examination, decisions or rulings given by the
competent authorities on an application for asylum, except for procedures
to determine the state responsible for examining the application for asylum
pursuant to this Convention.”

It is in those circumstances that the Respondent submitted that any
decision such as deportation, non refoulement etc. still fall to be
determined after an application has been rejected.

An application for asylum is defined in Article 1(1) (b) as a request
whereby an alien seeks from a Member State protection under the Geneva
Convention by claiming refugee status within the meaning of Article 1 of
the Geneva Convention, as amended by the New York Protocol. This can be
contrasted, it was contended by the Respondent, with the definition of
“Applicant for asylum” which is defined in Article 1(1) (c) as:

“An alien who has made an application for asylum in respect of which a
final decision has not been taken.”

In my judgment an application can be transferred under Article 8 even where
the application has

[The text ends there unfortunately]

Please note that victims of abuse may be triggered by reading this information. The Sanctuary for the Abused [A] has advice on how to prevent triggers. National Association for People Abused in Childhood [B] has a freephone helpline and has links to local support groups. Other useful sites are One in Four [C] and Havoca [D]. Useful post on Triggers [E] from SurvivorsJustice [F] blog. Jim Hoppers pages on Mindfulness [G] and Meditation [H] may be useful.

Links

[1] Cathy Fox Blog 2015 May 8 [constantly updated] Index Timeline of Newspaper Articles on Cathy Fox Blog https://cathyfox.wordpress.com/2015/05/23/newspaper-stories-index-timeline/

[2] Cathy Fox Blog 2015 May 8 [constantly updated] An Index / Timeline of Court Appeal Documents on Cathy Fox Blog https://cathyfox.wordpress.com/2015/05/08/a-timeline-of-court-and-ewca-documentation-on-cathy-fox-blog/

[3] Cathy Fox Blog to be published Sex Slavery – Slave Girl Return to Hell by Sarah Forsyth and Tim Tate

[A] Sanctuary for the Abused http://abusesanctuary.blogspot.co.uk/2006/07/for-survivors-coping-with-triggers-if.html

[B] NAPAC http://www.napac.org.uk/

[C] One in Four http://www.oneinfour.org.uk/

[D] Havoca http://www.havoca.org/HAVOCA_home.htm

[E] SurvivorsJustice Triggers post http://survivorsjustice.com/2014/02/26/triggers-what-are-they-and-how-do-we-work-through-them/

[F] SurvivorsJustice Blog http://survivorsjustice.com/

[G] Jim Hopper Mindfulness http://www.jimhopper.com/mindfulness/

[H] Jim Hopper Meditation http://www.jimhopper.com/mindfulness/#cultivate