Previous cases challenged secrecy and perceived unfairness of tribunal


Allegations of bias against members of the tribunal are nothing new, writes CAROL COULTER,Legal Affairs Correspondent

THE REFUGEE Appeals Tribunal was set up in 2000 to hear appeals from those whose applications for refugee status had been rejected at first instance.

The 35 members of the tribunal are appointed by the Minister for Justice and must be solicitors or barristers of at least five years’ standing. They are paid per case.

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 by the day, or the Equality Tribunal, which is staffed by civil servants. This payment method has been criticised as incentivising volume at the expense of rigour for its members.

The first legal challenge to the modus operandi of the tribunal was A Ors v the Refugee Appeals Tribunal, after the request of eight applicants for information on previous decisions the tribunal had made was refused. They challenged the refusal in the High Court in 2005, which found in their favour. The decision was upheld by the Supreme Court.

Mr Justice John MacMenamin said in his High Court judgment that the position of the tribunal was “unique in the common law world” and “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”.

In the second case, known as Nyembo, three asylum seekers in Cork alleged bias on the part of one tribunal member, James Nicholson, claiming he had close to a 100 per cent refusal rate on the appeals that came before him. He was also the highest earner in the tribunal, amassing €840,000 in fees before his resignation in 2006.

They sought statistics on the decisions of members of the tribunal to support their case. The tribunal refused to give out such statistics, and the matter went to the Supreme Court, which ruled that the statistics and other documents should be provided, and remitted the case to the High Court.

The asylum seekers obtained an order for discovery of the relevant documents. Instead of complying with the order and proceeding with the case, the tribunal settled by reassigning the cases. Nicholson resigned.

While the case was still pending, three members of the tribunal – barrister Donal Egan, former Fianna Fáil minister Michael O’Kennedy and former director of public prosecutions Eamonn Barnes – sought to be joined as notice parties to the case in order to counter the arguments being put forward by the tribunal chairman, John Ryan.

They also sought a system of allocation of cases which was transparent, accountable and “demonstrably severs any nexus between the assignment of cases to the members of the tribunal and their individual history of adjudication”. The existence of any such link was strenuously denied by Ryan.

However, when the case was settled, their issues with the running of the tribunal never received an airing.

Following the A Ors case, the tribunal embarked on a policy of restricting the publication of its rulings. These are available to lawyers acting for asylum seekers, but not to journalists or anyone else, and revealing them to others is prohibited.

It was hoped that the new Immigration Bill, which spent years being discussed by the Oireachtas before it fell with the last government, would bring transparency to the refugee appeals system.

However, while that Bill did propose replacing the Refugee Appeals Tribunal with a new body, the Protection Review Tribunal, and sought to take into account these binding court rulings, it attempted to combine this with maintaining the greatest degree of secrecy possible.

Only if the chairman of the tribunal was satisfied that a previous decision was relevant to the appeal being pursued would he provide it to the solicitor acting for the appellant, and publication of such decisions, or sharing them with journalists, researchers or even colleagues, would be prohibited.

Central to the case being brought to the High Court at the moment is that the previous decisions of a particular tribunal member are so close to identical, despite the varied circumstances of the asylum seekers, that they suggest their cases have not been examined with an open mind. Were such decisions published, these issues could be debated openly.

While in opposition Fine Gael was severely critical of the Refugee Appeals Tribunal and suggested numerous amendments to the Immigration Bill, especially with regard to transparency in the tribunal. These included reducing the tribunal membership from 35 part-time members to 10 full-time members – five permanent and pensionable, and five appointed for a five-year renewable term.

Fine Gael also suggested that the chairman should be a retired judge or a judge on secondment, rather than a political appointee, and that a body similar to the Judicial Appointments Advisory Board should make recommendations to the Minister.