Asylum tribunal must disclose findings

A High Court judge has ruled that the refusal of the Refugee Appeals Tribunal to allow lawyers for asylum applicants access to its prior relevant decisions is "unfair" and a breach of their constitutional rights.

Mr Justice John McMenamin said the present position in Ireland, where the tribunal does not publish its decisions, "is unique in the common law jurisdictions".

He believed such a position "cannot accord with the principles of natural and constitutional justice, fairness of procedure or equality of arms having regard to the importance and significance of the issues to the applicants which fall to be determined in this quasi judicial process".

The judge upheld challenges by eight applicants, including five children, to its refusal to allow them to access previous decisions of the tribunal to assist them when making their claims for refugee status.

The challenges were brought by a Bulgarian homosexual, who said he fled after suffering persecution and harassment; a native of Cameroon who claimed she was raped within a forced marriage, and a Nigerian widow and her five children. The action was against the Refugee Appeals Tribunal, its chairman, and the Minister for Justice, Equality and Law Reform.

In his reserved judgment, Mr Justice McMenamin said that, because the decisions and procedures challenged by the Bulgarian applicant occurred before a 2003 amendment of the Refugee Act 1996, which gave the tribunal chairman the discretion not to publish unimportant decisions of the tribunal, there was a distinction between the grounds on which that man was entitled to relief and those on which the other applicants were entitled to relief.

He granted a declaration that the refusal of the tribunal to make available relevant tribunal decisions to the Bulgarian man breached his rights to fair procedures and natural and constitutional justice under the provisions of Article 40.3 of the Constitution.

In relation to the Cameroonian and Nigerian applicants, the judge granted a declaration that the refusal of the tribunal to make available relevant decisions to them was an unlawful exercise of its discretion under the Immigration Act 2003 and also breached their rights to fair procedures and to natural and constitutional justice under Article 40.3.

Earlier, the judge said there was clear authority that, in the case of challenges to the validity of decisions of the tribunal, a non-national was entitled to the same degree of justice and fairness of procedures as a citizen.

There was also clear authority that the constitutional right to fair procedures in a decision-making process affecting a person's rights extended to a requirement that relevant information, documents and matters of evidence should be disclosed.

There was a fundamental distinguishing feature regarding the procedures of the tribunal and this was the fact its hearings and decisions were neither conducted nor delivered in public, the judge said. Nor was there any mechanism available for persons concerned in the hearing, even lawyers, to have access to previous relevant decisions.

Referring to several court decisions to the effect that justice must be administered in public, he said conformity and consistency in decision making were essential facets of fair procedures in a quasi judicial process of the type engaged in by the tribunal.

He also noted that Article 6 of the European Convention on Human Rights states that, in the determination of their civil rights and obligations or on any criminal charge, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law and that judgment "shall be pronounced publicly".