Child asylum seeker takes bias case


A CHILD asylum seeker is taking a legal case alleging perceptible bias on the part of a member of the Refugee Appeals Tribunal.

This is the second time a member of the tribunal has faced legal challenge on the basis of an allegation of bias. The previous case, concerning James Nicholson, ended with his resignation from the tribunal and a change in its practice with regard to providing information on previous cases to solicitors acting for asylum seekers.

The present case is being taken on behalf of the child by solicitor Gerard Cullen of Carrick-on-Shannon. In his affidavit he claims that the tribunal member in question rejected all the cases decided by him in 2009 and did so in virtually identical terms, despite differences in the circumstances of the individuals before him. This gives rise to a reasonable perception of bias, according to Mr Cullen.

“The determination is expressed in the same words and paragraphs stating that it is a matter of credibility issues only, that the applicants are fraudulent, and that consequently the tribunal member does not have to consider any of the country of origin information in virtue of the decisive and categoric [sic] negative credibility findings, which are described in formulaic terms such as ‘disingenuous’, ‘concocted’, ‘wholly lacking in credibility’ and that impute criminal intentionality to each such applicant,” he said.

The final paragraph entitled “Analysis of Applicant’s Claim” and the “Conclusion” are virtually identical in all the 42 cases heard by this member, he said.

The section entitled “Law” was also virtually identical, “notwithstanding that different facts might be presumed to engage different statements of law”, Mr Cullen said. “It is not credible that the exact same formulation of the law should be repeated virtually invariably in all cases without logical integration to the specific facts of the case.”

Referring to the case he is taking, involving the child applicant, he said that this formula is repeated, where it says: “He has contrived to a story for the tribunal which I reject and his failure to tell the truth during his appeal has been exposed in cross-examination.” This passage, according to Mr Cullen, “attributes a level of intentionality to the minor applicant which is not credible”.

The passage is a verbatim reproduction of the conclusion relating to his mother’s application and indicates there was “no independent or substantive consideration whatever of the specific facts of the minor applicant’s case”.

He goes on to dispute the findings of the tribunal member concerning the applicant’s documents and said that grave imputations of fraud on the part of the applicant’s parents were never put to them at the hearing and were without foundation.

Mr Cullen states in his affidavit that the applicant is entitled to know the percentage of applications which were successful or unsuccessful before this tribunal member, along with the volume of cases assigned to each tribunal member and the reasons why they are so assigned.

“There are very wide divergences in the volumes of assignment of cases to tribunal members and there are no reasons advanced for such gross variations. The fact of the high rejection rate of the Irish tribunal by international standards and the fact of the payment on a commission ‘piece rate’ basis of members [means] that one can rationally entertain a perception of bias by the tribunal,” he concludes.

The Irish acceptance rate for refugees is the lowest in the EU at 1.5 per cent at first instance and 6 per cent on appeal, significantly below the average EU recognition rate of 27 per cent, a matter that has attracted much adverse international comment.

The application for leave to bring judicial review proceedings against the rejection of the asylum application of the minor is expected in the coming months. According to the Refugee Appeals Tribunal, 25 judicial review applications involving the tribunal have been filed in the High Court since January 1st last.