People appealing against a refusal to grant them refugee status have to make their case to a tribunal that does not publish its decisions. Carol Coulter, Legal Affairs Correspondent, examines an appeals system shrouded in secrecy.
Away from the main body of the Four Courts, in a corner of the Distillery Building in Dublin's Church Street, judicial reviews of the Refugee Appeals Tribunal take place. They attract little attention, and last May 11th was no different. Two teams of lawyers made their case before Mr Justice John MacMenamin unobserved by the media or the usual collection of young barristers hoping to learn some new law.
The case concerned an attempt by lawyers acting for three asylum seekers to have access to previous decisions of the Refugee Appeals Tribunal. The tribunal does not publish its decisions, and nor does it make them available to anyone other than the applicant and, of course, the body defending the initial refusal of refugee status, the refugee applications commissioner.
The applications commissioner, therefore, has all of them and is unique in possessing an overview of the appeals tribunal's decisions and any patterns or precedents. The lawyers appearing before the judge said the tribunal's refusal to publish decisions was "unique in the English-speaking world", and has the bizarre effect that decisions made by similar tribunals in Canada or the UK can be cited in Irish court cases but Irish cases cannot.
It also means there is no guidance for practitioners on how the Irish tribunal interprets refugee law in relation to such vexed issues as who constitutes a "social group" mentioned as deserving of protection under the Geneva Convention. It is very possible that one member might interpret it in one way, and another in a different way.
Mr Justice MacMenamin is expected to deliver his judgment shortly.
However, the issues raised go far beyond the circumstances of the three asylum seekers who brought the action. They touch on the perceived culture of secrecy that surrounds the Refugee Appeals Tribunal, and the widespread feeling that this is covering up a lack of consistency in its decisions, with likely unfairness to certain applicants.
The Refugee Appeals Tribunal was set up in 2000 under the 1996 Refugee Act to hear appeals against initial decisions on refugee status by the Office of the Refugee Applications Commissioner.
Minister for Justice Michael McDowell appoints the 35 members of the Refugee Appeals Tribunal though they are statutorily independent. This is understood by the United Nations High Commissioner for Refugees to mean that each member carries out his or her functions independently. There is no independent selection procedure, no interview, no necessary qualification other than five years in legal practice.
A high proportion of those appointed have political connections, though some of those with the highest political profiles, former senior cabinet ministers, have a good reputation for thoroughness and impartiality among the practitioners who appear before them.
Members of the tribunal are appointed on a part-time basis (although at least one works virtually full-time) for a three-year period. The work can be lucrative - the top earner is barrister Jim Nicholson, appointed in November 2000, who earned €425,551 up to the end of 2004.
Members are paid on a fee-per-case basis. The fees vary, depending on whether it is a document-based case, whether it is an accelerated appeal (involving countries deemed safe by the Government) or a full oral hearing. The fees range from €165 where the case it withdrawn, to €1,150 where a husband and wife are both involved in an oral hearing. An oral hearing with a single individual takes between an hour and 1½ hours. The cost of legal fees was €3,147,728 last year, up from €1,905,705 in 2003.
The policy of payment on a fee-per-case basis is another issue being tested by judicial review. A case is pending where it will be argued that this policy acts to undermine the appearance of independence and impartiality on the part of tribunal members as it creates a financial incentive to truncate the hearing of evidence and conclude proceedings speedily.
Payment on a fee-per-case basis makes the Refugee Appeals Tribunal different from other tribunals, such as the Employment Appeals Tribunal, where those sitting are paid per day, or the Equality Tribunal, which is staffed by salaried civil servants. While many practitioners report that some appeals tribunal members are fastidious in hearing claims, and postpone other hearings if faced with a lengthy or complex case, others are said to hear appeals in a perfunctory manner, cramming five or six into a day.
Applications for refugee status and appeals are heard in private.
This is to preserve the confidentiality of the asylum seekers and is the norm internationally.
However, the tribunal differs from similar bodies internationally in that it does not publish its decisions. Nor does it reveal the basis on which cases are allocated to individual members, or release any statistics on the records of individual members or on the general trend in decisions. It only publishes figures concerning the outcomes of appeals.
This means that the decision-making process is totally hidden from any form of public scrutiny, and therefore from any kind of accountability other than bare financial accountability. By not revealing the relationship between the earnings of individual members, the number of cases dealt with and their outcomes it does not make clear the quality of service both asylum seekers and the Irish taxpayer are receiving from the tribunal members.
The only insight obtained into the workings of the appeals tribunal is through judicial reviews in the High Court, and this avenue is limited to complaints about the procedure - the court cannot re-examine the facts of the case.
Many of the procedural complaints are never aired as the tribunal often settles the case by offering a fresh appeal without allowing it to go to court, thereby implicitly acknowledging the basis for the complaint. Last year 124 judicial review cases were either settled by the tribunal, or a new appeal was ordered by the High Court. The applicant's challenge failed in 28 cases. The previous year 75 cases were either settled or the High Court threw out the tribunal decision, while it upheld it in 26 cases.
The State has never appealed a decision of the Refugee Appeals Tribunal.
This caused the Master of the High Court, Edmund Honohan SC, to express concern earlier this year at the high number of judicial reviews taken successfully against the tribunal. He said they showed that many of the reviewed decisions were not "evidence-based". The tribunal spent €787,692 defending its decisions against judicial review challenge last year.
The Irish Times asked the tribunal for the number of judicial reviews taken against individual members. The chairman responded: "The Refugee Appeals Tribunal is a statutory body independent in the performance of its functions under provisions of Section 15 and 16 of the Refugee Act 1996. It is inappropriate to furnish the information requested in respect of individual members of the tribunal."
The same response was given to a request for information about the number of appeals heard by individual members and their outcomes. However, the tribunal did forward a table containing the earnings of its members.
Practitioners in the area stress the fact that some members of the appeals tribunal are conscientious, open-minded and fair. But others are perceived as falling far short of this standard. One is reported as commenting to colleagues in the Law Library that he "never let one of them in".
The Refugee Legal Service represents the majority of asylum seekers before the tribunal and handled over 3,300 cases last year. Some of its solicitors have experience of representing hundreds of asylum seekers.
"The first thing solicitors would look at, regardless of where a person is from or the strength of a case, is who is hearing the case," said Frank Brady, its chief executive.
Applicants used to be informed who was hearing their case but are not any more, according to Mr Brady. One private solicitor routinely sought a different tribunal member if he found his client was allocated the person who boasted of not allowing "them" in. If refused, he sought a judicial review. This route is now blocked off.
"There is a perception in the ethos coming from the top that the impetus is to ensure that not too many people get through the system," said Mr Brady. "A number of solicitors in the Refugee Legal Service feel it is unprofessional to appear before it. We don't want a positive decision unless it is justified. We want consistency so that we can advise the client on what the prospects of success are. We just want a proper hearing."
Earlier this month Michael McDowell spoke of "the nonsense that lies behind a huge amount of these bogus claims" while addressing the Oireachtas Justice Committee.
He continued: "I'm making it very clear that you will be going home within 10 weeks of making a claim in Ireland, and I would much prefer to have a system where I could have an interview at the airport, find out the cock and bull stories that are going on [ and put them] on the next flight. But unfortunately the UN Convention requires me to go through due process in respect of all these claims."
Asked to comment on these remarks, with their implication that the Geneva Convention on refugees was being implemented with reluctance, a spokesman for the UNHCR in Ireland declined. This is consistent with its general policy of pursuing its objectives through private representations rather than public statements.
However, the spokesman added: "The Minister called for an open debate on asylum. This is something the UNHCR would support. Such a debate and discussion can only be done with due respect for asylum seekers and refugees, and not using language that risks vilifying an already vulnerable group."
Others working in the area have not been so guarded. The Master of the High Court, Mr Honohan, said: "Those engaged in the adjudication process will not have been too pleased to read the Minister's recent remarks which seem to suggest that there is a permissible or acceptable level of prejudice. There isn't.
"The fact that many are likely to be lying, given human nature, does not allow all to be treated as dishonest. Unfortunately, the Minister's comments seem to reinforce the perception that such is indeed how they are being viewed."
He compared the Minister's remarks to those contained in a 19th-century textbook Taylor On Evidence. This referred to "the lamentable neglect of truth, which is evinced by most of the nations of India, by the subjects of the Czar, and by many of the peasantry in Ireland".
Others fear that the Minister is sending a message to those whose appointment or reappointment lies in his hands that a readiness to send people home is more important than an attachment to due process. This is something many conscientious members of the Refugee Appeals Tribunal would view with dismay.
There are signs that some tribunal members are concerned that the present system affects their own credibility. A founding member of the tribunal, Sunniva McDonnell wrote a lengthy article in this month's Bar Review arguing for the publication of decisions, and this has been widely, if quietly, welcomed in legal circles. She also expressed concerns about a number of other issues involving the tribunal.
There is no sign, however, that the Minister is about to move to a more open process for appointing its members, or to encouraging any independent scrutiny of their methods, or indeed of any other aspect of the asylum process. A Refugee Advisory Board is provided for in the 1996 Refugee Act, but there is no sign of it. An independent review of refugee services has been undertaken, and its report was meant to be published last February. There is no sign of that either.
Asked about this, a spokesman for the Minister said: "The Minister believes there is a role for some form of effective consultative framework to provide input into policy development on asylum seeker and refugee matters generally. However, he is not convinced that the present legislative provision offers the correct framework for the efficient and effective enhancement of work in this area."
He added that the business review, which focused on efficiency and effectiveness, would be presented in the coming weeks.
The spokesman also said that the chairmanship of the Refugee Appeals Tribunal would be advertised within the coming weeks. Its current chairman, John Ryan, has been in the position on an interim basis since November 2003.
Meanwhile, there are a number of lawyers awaiting Mr Justice MacMenamin's decision with interest. His judgment could open the door to more transparency... or lock it shut even tighter.