16
THE SUPREME COURT 416/04 BETWEEN
GRACE EDOBOR Respondent/Applicant and
JOHN S. RYAN AS CHAIRPERSON OF THE REFUGEE APPEALS TRIBUNAL,
JOSEPH BARNES SITTING AS A MEMBER OF THE REFUGEE APPEALS TRIBUNAL,
BEN GARVEY SITTING AS A MEMBER OF THE REFUGEE APPEALS TRIBUNAL
and
THE MINISTER FOR JUSTICE EQUALITY & LAW REFORM Applicants/Respondents AND
417/04 BETWEENABDENOUR MESSAOUDI Respondent/Applicant and
THE CHAIRPERSON OF THE REFUGEE APPEALS TRIBUNAL,
MR. JOSEPH BARNES (SITTING AS THE REFUGEE APPEALS TRIBUNAL),
MR. JAMES NICHOLSON (SITTING AS THE REFUGEE APPEALS TRIBUNAL),
and THE MINISTER FOR JUSTICE, EQUALITY & LAW REFORM Applicants/Respondents
Judgment of Fennelly J delivered the 16th day of March, 2005.
The factual and legal background to these two appeals have been fully summarised in the judgment of Kearns J and it is not necessary for me to repeat them. It suffices to say that the Tribunal assigned the second-named Respondent (hereinafter “Mr Barnes”) to hear the appeals of the two present applicants pursuant to section 16 of the Refugee Act 1996 as amended. He conducted oral hearings respectively in March and May 2003. He had not determined either case prior to March 2004. Indeed, it is clear that these were by no means isolated cases. Mr Barnes had also heard a considerable number of other refugee appeals, without pronouncing decisions on them. This led to concern on the part of the Refugee Legal Service and, in turn, the Chairperson of the Refugee Appeals Tribunal.
In March 2004, the Chairperson decided to reassign a number of cases to other Tribunal members for re-hearing. These included the appeals of the present Applicants, which he assigned in each case to the member described in the title of the application as the third-named Respondent. This information was conveyed in each case in the form of a letter from the Tribunal giving notice that the oral hearing was rescheduled for a particular date. In response to a letter from the Refugee Legal Service, Mr W. Delaney of the Scheduling Unit of the Tribunal, wrote a letter, the operative part of which (in the Messaoudi case) stated:
"The hearing before Mr. Joe Barnes took place on the 15 May 2003. At a recent meeting between representatives of the Refugee Appeals Tribunal concern was expressed by representatives of the Refugee Legal Service at the inordinate delay between the hearing of an Appeal and a Decision being issued. We shared that concern.
The Chairperson has considered the matter and has decided pursuant to the Refugee Act 1996 (as amended) and in particular paragraphs 13 and 14 of the Second Schedule to reassign this case. The Chairperson has taken into account the delay that has elapsed since the hearing of the case and the likelihood of the Member being unable to issue a Decision within an acceptable time frame."
A virtually identical letter, the dates only being different, was sent in the Edobar case.
Finlay Geoghegan J summarised the legal issues as follows:
“1. Was the second named respondent under a duty to the applicants at any time to make a decision on his or her appeal or is the only such duty on the Tribunal?
2. If so is or was he in breach of such duty?
3. The limits to the first named respondent's power to reassign appeals to another member of the Tribunal after an oral hearing has been held.
4. On the facts of each of these applications, has the first named respondent acted ultra vires or intra vires in deciding to reassign the respective appeals?
5. What, if any, are the reliefs to which either applicant is entitled? “
Finlay Geoghegan J expressed her conclusion on the first two issues as follows:
“I have concluded that where an appeal is assigned to a member of the Tribunal in which an application for an oral hearing has been made and that member conducts the oral hearing, he has commenced or entered up [recte upon] a consideration of the appeal and is as a division of the Tribunal obliged to determine the appeal.”
She added later:
“Accordingly I have concluded that the second named respondent having conducted an oral hearing in the appeals of each of the applicants became, as a division of the Tribunal, obliged to determine their respective appeals. That obligation must be an obligation owed to the applicant.”
Finally, she stated that Mr Barnes “was at least prior to [the decision reassigning the cases] in breach of duty to the applicants.” Consequently, she made orders of Mandamus directing Mr Barnes to make a decision in each case.
I entirely agree with the reasoning of Finlay Geoghegan J regarding the obligation of Mr Barnes to make a decision. It does not appear to me to be particularly material, for the purposes of this case, whether this was an obligation owed individually by Mr Barnes as distinct from the Tribunal to the Applicants. The Tribunal owed that obligation and is amenable to Judicial Review. Section 15 of the Act of 1996 (as amended by section 11 of the Act of 1999) established the Tribunal “to consider and decide appeals under section 16 of this Act.”
It is important to note, however, that the learned judge’s finding of breach of duty by Mr Barnes flowed from the undisputed fact cited by the learned judge that a “reasonable period of time had expired prior to the decision of the first named respondent to reassign these appeals……” Furthermore, at that point of her judgment she was careful to limit the finding to the period before the reassignment. Thus, the learned judge determined that the delay, which had been described as “inordinate,” in issuing decisions in the two cases was sufficient to place the Tribunal and/or Mr Barnes in breach of their legal duty imposed by the statutes.
However, the fact that the Tribunal or Mr Barnes were in breach of duty by reason of delay does not determine these appeals. As a result of the delay, the first-named Respondent made decisions reassigning the “business” in question. At this point in the argument, the outcome of the appeal depends on the answer to the third issue identified by Finlay Geoghegan J, namely the “limits of the [chairperson’s] power to reassign appeals to another member of the Tribunal after an oral hearing” has taken place.
Paragraph 13 of the second Schedule to the Refugee Act, 1996, as inserted by section 11 of the Immigration Act, 1999 (amending section 15 of the Act of 1996), read in the light of paragraph 11 confers power on the chairperson to “assign to each member the business to be transacted.”
The first-named Respondent, in reassigning the appeals of the two Applicants in March 2004, purported to exercise this power. Finlay Geoghegan J held that exercise to be ultra vires. Hence she also made orders of certiorari in each case quashing the reassignment decisions.
Finlay Geoghegan J noted that it was “common case that a power to reassign even after an oral hearing [was] implicit in the power to assign in paragraph 13…” Here, the learned judge was, in reality, and in spite of the use of the word “implicit” identifying an express power. While, in her ensuing reasoning, she occasionally used language appropriate to the exercise of an implied power, it seems to me clear that she did not intend to refer to that quite distinct type of power. Both sides refer in their written submissions on the appeal to the judgment of Hamilton C. J., speaking for the majority of this Court in Keane v An Bórd Pleanála and others [1997] 1 I.R. 184 at 212. The learned Chief Justice cited, with approval, the words of Costello J in the course of his judgment in Howard v Commissioners of Public Works [1994] 1 I.R. 101 at 112:
“It has long been established as a general principle of the construction of the powers of statutory corporations that whatever may be regarded as incidental to, or consequential upon those things which the legislature has authorised, ought not (unless expressly prohibited) to be held by judicial construction to be ultra vires (Attorney General v Great Eastern Railway Company [1880] 5 A.C. 473 at 478.” The well-know dictum of Lord Selborne LC in the Great Eastern Railway Company case, whose language Costello J there referred to, is generally cited as supporting the existence of implied ancillary or incidental powers in the cases of statutory corporations. (see Hogan and Morgan Administrative Law in Ireland Third Ed. Round Hall Sweet and Maxwell. Dublin 1998 pages 402, 403; Bennion, Statutory Interpretation, Fourth Ed. Butterworths London 2002, pages 429, 430). In the present case, the primary question to be addressed is whether the Rules in the Second Schedule to the Act of 1996 and, in particular, paragraph 13, conferred power on the first-named Respondent to take the steps which he did. If an affirmative answer can be given to that question, there is no need to consider whether he had implied power to do the same thing.
The respondents accepted both in their written submissions and in oral argument that there are some circumstances in which a chairperson may remove an appeal from one division and assign it to another. They say that such a step can be justified only when it is necessary and required for the fulfilment by the Tribunal of its statutory functions.
Finlay Geoghegan J gave extensive consideration to whether and in what circumstances a chairperson of a Refugee Appeals Tribunal had the power to reassign an appeal already assigned.
Firstly, she held “in circumstances other than the death of the member or a person ceasing to be a member of the Tribunal, a decision to "reassign" includes both a decision to remove the appeal from the division of the Tribunal which has conducted the oral hearing and also a decision to assign it to a different member of the Tribunal.” She thought that the decision to remove was “crucial.” She then continued:
“Construing any such implicit power in accordance with the principles of constitutional justice and fair procedures, it appears that such implicit power will arise only either where the relevant member of the Tribunal is unable for physical or mental reasons to determine the appeal or is unable as a matter of law to issue a valid decision. Illness may obviously give rise to the first of these. Examples of the second might include the existence of a bias or conflict of interest or perceived predetermination of the issues. In practice, where an order of certiorari of a decision of the Tribunal is made the matter is readmitted for hearing before another member of the Tribunal.” The learned judge did not consider that the power could be “construed consistent with an applicant's right to fair procedures so as to give the chairperson power to remove an appeal from a serving member of the Tribunal after he has conducted an oral hearing other than in the circumstances referred to above.” It is, of course, beyond argument that the powers of the chairperson, as the learned judge stated, must be exercised in accordance with the principles of constitutional justice and fair procedures. But there is a distinction between the scope of the power conferred and the principles governing its exercise. What the learned judge has done, in the passage cited above, is to deploy those principles in aid of the interpretation of the provision and not simply to apply them to its exercise. In effect, she held that it would be inconsistent with the principles of constitutional justice and fairness to interpret paragraph 13 as entitling the chairperson to make the decisions which he did.
The learned judge then went on to consider whether facts existed which could justify the exercise of an implicit power. In doing this she asked whether there was evidence before the first-named Respondent that either:
“1) The first member [meaning Mr Barnes] is unable for physical or mental reasons to determine the appeal, or
2) the first member is unable as a matter of law to issue a valid determination.”
Having analysed the affidavit evidence of Mr English, provided on behalf of the Tribunal, which is set out in the judgment of Kearns J, she concluded that there was no evidence that either of these situations existed. In this particular respect, I have to say that I believe she was entirely correct. Mr English did not contend either that Mr Barnes was unable for physical or mental reasons or as a matter of law to issue a valid determination. It is clear that the reason for the reassignment decisions was that Mr Barnes had presided in a large number of cases in which he had failed to render decisions within a reasonable time, the delay in many cases being inordinate, a matter which was of joint concern to the persons affected (as shown by the representations made by the Refugee Legal Service) and that, although progress had been made over a number of months, the chairperson considered that the situation remained unsatisfactory. The evidence was that the first-named Respondent, in reaching decisions to reassign cases, had “regard to the obligation on the part of the Tribunal to dispose of appeals with due expedition consistent with fairness and natural justice.”
The first question to be answered, in my view, is whether the chairperson, when he has assigned business to a division of the Tribunal, may, on the true interpretation of paragraph 13, in any circumstances reassign it to another division. This will involve a consideration of the further question of whether there are, as a matter of interpretation of the power, any restrictions on those circumstances. Finally, it will be necessary to consider whether the power has been validly exercised in the case of the applicants in the present cases.
It is not possible to discern the meaning of paragraph 13 without reference to surrounding provisions. It uses, in particular, the two expressions “business” and “division,” whose meaning can be gathered only from a reading of other provisions. The second of these terms is an artificial description of a member of the Tribunal. Paragraph 1 designates the chairperson and the ordinary members as “members.” Paragraph 11 provides:
“Whenever the Tribunal consists of more than one member, it shall be grouped into divisions each of which shall consist of one member.”
The function of all members, as seems to follow from paragraph 1(b), is “the expeditious dispatch of the business of the Tribunal.” This latter objective has been further reinforced by amendments made in 2003, which came into effect after the oral hearings in these two cases. I will refer to these later.
The expression “business” does not appear in section 15 of the Act of 1996 as amended, which established the Tribunal “to consider and decide appeals under section 16 of the Act.” But that is clearly what is meant by “business” and the expression appeared in the former version of the Second Schedule, now replaced: the Appeal Board was to “determine, by rules or otherwise, the procedure and business of the Board.”
Are there, however, circumstances in which business, having been assigned to one division may be reassigned to another? It is obvious and was accepted by the learned trial judge that, in some such circumstances, such a power necessarily exists. To begin with, the Second Schedule envisages four distinct circumstances in which a member of the Tribunal may cease to be a member. They are:
· Expiry of term of office of the chairperson (paragraph 3) or another member (paragraph 4);
· Resignation (paragraph 6);
· Removal from office (paragraph 7);
· Death (paragraph 8). Each of these cases is expressly envisaged by the Second Schedule. There is, however, no express provision, other than paragraph 13, for reassignment of uncompleted business. In these cases, of course, it might be said that any particular incomplete business, including appeals where there has been an oral hearing, has ceased to be assigned. There is force in the suggestion of Finlay Geoghegan J that it is the “removal” of an appeal from an assigned member which is crucial. Nonetheless, it is clear from these examples that business already assigned may, in certain circumstances, be reassigned.
However, as already noted, Finlay Geoghegan J also accepted that the chairperson would have power to reassign in at least two other situations. These are:
· Inability for physical or mental reasons to determine an appeal;
· Inability, as a matter of law to issue a valid determination.
If the chairperson has power to reassign business in these two circumstances, it must follow that he or she may remove that business (appeal) from a member so affected by illness or legal inability. This “crucial” power is thus, according to the reasoning of the learned judge, interpolated into the power conferred by paragraph 13 in some cases but not, in the view of Finlay Geoghegan J, in others. The stated reason for this conclusion is the need to act in accordance with the principles of constitutional justice and fairness.
It is, as I have already stated, beyond argument that a chairperson, like any other decision-maker, is bound to respect and observe these principles. It does not seem to me, however, that these principles require the courts to interpret the provision at issue so as to exclude the exercise of a power of reassignment (including a power of removal) in circumstances such as the present.
In this respect, the Appellants submit that the learned judge has misapplied the principles enunciated in East Donegal Co-Operative Livestock Mart v Attorney General [1970] I.R. 317. In that most celebrated passage at page 343 of the judgment, Walsh J explained how the Constitution affects the exercise of statutory powers:
“All the powers granted to the Minister by s. 3[of the Livestock Marts Act, 1967] which are prefaced or followed by the words "at his discretion" or "as he shall think proper" or "if he so thinks fit" are powers which may be exercised only within the boundaries of the stated objects of the Act; they are powers which cast upon the Minister the duty of acting fairly and judicially in accordance with the principles of constitutional justice, and they do not give him an absolute or an unqualified or an arbitrary power to grant or refuse at his will. Therefore, he is required to consider every case upon its own merits, to hear what the applicant or the licensee (as the case may be) has to say, and to give the latter an opportunity to deal with whatever case may be thought to exist against the granting of a licence or for the refusal of a licence or for the attaching of conditions, or for the amendment or revocation of conditions which have already attached, as the case may be.”
The effect of the application of these principles, an extension of the principle of double construction, was to rescue the statute from the finding of unconstitutionality which had been made in the High Court.
I believe that the learned judge erred in reaching the conclusion that the principles of constitutional justice and fairness of procedures required her to restrict the scope of the power conferred by paragraph 13 in the manner which she did. In substance, she decide that the chairperson had the power to remove and reassign business, presumably meaning that this could be done without the consent of the division first assigned, in the event of illness or legal incapacity but not on the grounds related to the pursuit of the Tribunal’s obligation to ensure the “expeditious dispatch of [its] business.” Such interpretation risks the description of judicial legislation. The court is interpreting general words as applying only to specific situations, not mentioned in the statutory provision. In my opinion, the chairperson has general power, pursuant to paragraph 13, to assign and to reassign cases already assigned. In short, where the circumstances warrant that step, he may remove business (an appeal) from one member and assign it to another. In doing so, he must act fairly and respect the principles of natural and constitutional justice. It is obvious that any capricious or unfair use of this power would be subject to Judicial Review. In that way the necessary respect for the principles of constitutional justice and fairness can be ensured. Paragraph 13 is clearly designed to enable the chairperson to pursue the objective of the expeditious dispatch of business. The court has not heard any evidence regarding the day-to-day operations of the Tribunal. It is easy, nonetheless, to envisage that hearing rosters may need to be adjusted on an ad hoc basis in response to levels of business, the speed or slowness of disposal of particular cases or types of cases, the relative efficiencies of individual members, their personal circumstances, the availability of interpreters, vacations and any number of other banal daily circumstances. It is true that Finlay Geoghegan J expressly tied her conclusion to the circumstance that an oral hearing had taken place in each of the current cases. However, her conclusion necessarily applies to all cases, unless the further step is to be taken of judicially interpolating a provision to that effect into the provision. In short, I cannot see how the general power can be judicially cut down in the manner claimed on behalf of the applicants.
It remains to consider whether, on the facts of the present appeals, the decision of the chairperson should be quashed on normal Judicial Review grounds. Finlay Geoghegan J naturally addressed this issue exclusively in the light of her own conclusion that the power to reassign existed only in the event of physical or legal incapacity of the member. Since neither of these had been advanced by the first-named Respondent as the basis for his decision, the learned judge correctly concluded that they had been made out. She did, however, in the context of the argument on interpretation, consider paragraph 14 of the Second Schedule. That paragraph had been introduced as an amendment to the existing Schedule by section 7 of the Immigration Act, 2003. That Act was passed on 14th July 2003 and was brought into force on 15th September 2003 (Immigration Act, 2003 ((Section 7) Commencement Order S.I. No 415 of 2003.) Therefore, while not in force on the date of the oral hearings relevant to the present appeals, it was in force at the date of the chairperson’s decision to reassign. It reads:
“The chairperson shall endeavour to ensure that the business of the Tribunal is managed efficiently and that the business assigned to each division is disposed of as expeditiously as may be consistent with fairness and natural justice.”
Finlay Geoghegan J held that this provision could not be “construed consistent with the applicant’s right to fair procedures so as to give the chairperson power to remove an appeal from a serving member of the Tribunal after he has conducted an oral hearing other than in the [two] circumstances referred to above.”
In essence, the complaint expressed by the applicants, whether in relation to the interpretation issue or the validity of the decision is that, where an applicant has gone through an oral hearing, having prepared and presented his or her case, it is unfair to reassign the appeal. Reference has been made to some English cases concerning the risk that assessment of credibility will be unreliable where a Tribunal member has unduly delayed consideration of oral evidence. I am satisfied, as was Finlay Geoghegan J, that this issue does not arise. The chairperson’s decision was not made on this ground.
It is clear, in my opinion, that the chairperson was confronted with a difficult situation. There was a serious backlog of cases, especially associated with one member. As stated by Finlay Geoghegan J, this was not of the chairperson’s making. Some cases had been heard as far back as July and August 2002. The chairperson had a number of meetings with the Refugee Legal Service, which quite properly made representations to him arising from the existence of this backlog. He reached a carefully balanced conclusion. Where the lapse since the hearing was only six months or where Mr Barnes had substantially completed his decision, he did not reassign it. The affidavit sworn on his behalf stated that he “had regard to the obligation on the part of the Tribunal to dispose of appeals with due expedition consistent with fairness and natural justice.”
It seems clear to me that the principal if not exclusive basis of the applicants’ complaint has at all times been the claimed lack of power of the chairperson to reassign. Although there has been some reference to the cases on the topic, there has been no real attempt to show that the decision of the first-named Respondent was irrational in the sense in which that expression is used in Judicial Review. Leave to apply was not, in either case, granted on that ground.
Basically, the complaint is that it is unfair to reassign after there has been an oral hearing. Each of the applicants made one individual point in the affidavit grounding the application for Judicial Review. The first-named applicant claimed that she would suffer prejudice “in giving evidence relating to subjective facts” regarding her troubled history and family relationships in Nigeria, “after I no longer suffer from these facts.” I cannot see how this forms a basis for Judicial Review of the decision in question and, in any event Finlay Geoghegan J made no determination on this issue. The second-named applicant expressed concern that notes from his first hearing might be available to the member of the Tribunal at the second hearing. Mr English has sworn that this is not so. He says that the notes taken by Mr Barnes are not kept on file and that the Tribunal will ensure that any notes on the file are removed.
In all these circumstances, I have come to the conclusion that the first-named Respondent made valid decisions, within the scope of his powers, reassigning the two appeals at issue in these proceedings pursuant to section 16 of the Act of 1996 and that no ground has been made for them to be quashed. I would allow the appeals and make an order dismissing each application for Judicial Review.
14
Murray C.J.
Fennelly J.
Kearns J. THE SUPREME COURT
[2004 No. 416 JR]
BETWEENGRACE EDOBOR RESPONDENT/APPLICANT AND
JOHN S. RYAN AS CHAIRPERSON OF THE REFUGEE APPEALS TRIBUNAL
JOSEPH BARNES SITTING AS A MEMBER OF THE REFUGEE APPEALS TRIBUNAL, BEN GARVEY SITTING AS A MEMBER OF THE REFUGEE APPEALS TRIBUNAL AND THE MINISTER FOR JUSTICE EQUALITY AND LAW REFORM APPELLANTS/RESPONDENTS AND [2004 No. 417 JR] BETWEEN
ABDENOUR MESSAOUDI RESPONDENT/APPLICANT AND
THE CHAIRPERSON OF THE REFUGEE APPEALS TRIBUNAL, MR. JOSEPH BARNES (SITTING AS THE REFUGEE APPEALS TRIBUNAL), MR. JAMES NICHOLSON (SITTING AS THE REFUGEE APPEALS TRIBUNAL), AND THE MINISTER FOR JUSTICE, EQUALITY AND LAW REFORM
APPELLANTS/RESPONDENTS JUDGMENT of Mr. Justice Kearns delivered the 16th day of March, 2005. In each of these cases an order of mandamus was sought in the High Court to compel the second named respondent to make and give a decision in appeals brought by the applicants to the Refugee Appeals Tribunal. Each case had been assigned for hearing before the second named respondent by the first named respondent who is chairperson of the Tribunal. An order of certiorari was also sought in each case to quash the decision of the first named respondent to ultimately re-assign the hearing and determination of each applicant’s appeal to a member of the Tribunal other than the second-named respondent. In respect of the two applicants, the decision was to assign the appeals to the third named respondents named in the title hereof.
At the conclusion of the hearing in the High Court, Finlay Geoghegan J., on 29th July, 2004 made orders of mandamus and certiorari as sought. From the applicants’ point of view the history of this matter must be bewildering in the extreme. The first-named applicant, Grace Edobor, is a Nigerian national who arrived in this State on 4th July, 2002. As part of the asylum process, she completed an application form entitled “Application for Refugee Status Questionnaire” and also attended at an interview with a servant or agent of the Refugee Applications Commissioner. Thereafter the authorised officer prepared a report pursuant to s. 11(2) of the Refugee Act 1996 which is dated 27th September, 2002. Subsequently the report of the results of the investigation pursuant to s. 13(1) of the Refugee Act 1996 was completed by the authorised officer, Thomas O’Sullivan on the 10th October, 2002. On 14th October, 2002 Mr. Sean McNamara for the Refugee Applications Commissioner made a recommendation pursuant to s. 13 of the Act to refuse refugee status to the applicant.
The facts upon which Grace Edobor had made her claim for asylum were set out in the questionnaire and interview and were to the effect that she had been made pregnant by an older man in Nigeria. Her uncle, her mother’s brother, who was effectively looking after her family, told her she would have to have her child aborted and that if she did not organise that herself, he would take her to the hospital and have it done. The applicant states that she was fearful of undergoing such a procedure both for her own safety and because an abortion would have constituted a criminal offence for which she could have faced a lengthy period of imprisonment. She also set out reasons why she feared for the safety of her person by reason of persecution if she was returned to Nigeria. Following her arrival in Ireland she gave birth to a baby girl on 20th August, 2002. In the affidavit supporting her application in the High Court, she deposes that she had a further anxiety that her daughter would be subjected to female genital mutilation by way of circumcision if she and her baby were forced to return to Nigeria. She also deposes that she herself had had this procedure forced upon her as a child.
She accordingly appealed against the said recommendation to the Refugee Appeals Tribunal. Her appeal came on for hearing before the second named respondent, Joseph Barnes, as a member/division of the Refugee Appeals Tribunal and her case was heard by him on 20th March, 2003. The applicant states that she was represented by counsel and a Refugee Legal Services caseworker. The appeal hearing ran for a number of hours before Mr. Barnes and included oral evidence and submissions.
Thereafter the applicant awaited delivery by the second named respondent of his decision which, having regard to the fact that not only her human rights but those of her child also were at stake, was one which she was entitled to expect would be speedily delivered.
The facts of the other applicant’s case may be briefly referred to. Mr. Messaoudi arrived in Ireland in May, 2002. He is a national of Algeria. He attended for interview with the Refugee Applications Commissioner on 30th September, 2002. The Commissioner held that Mr. Massaoudi should not be granted a declaration of asylum. He appealed to the Refugee Appeal Tribunal and an oral hearing took place before the second-named respondent on 15th May, 2003, at which the applicant gave oral evidence and was cross-examined. Thereafter he too heard nothing until by letter dated 5th March, 2004 he was advised of the purported re-assignment of his case to Mr. Nicholson, another member of the Tribunal. As in the case of Grace Edobor, Mr. Massaoudi was entitled to believe he would get a speedy decision on a matter of such crucial importance for him.
Section 7(i)(x) of the Immigration Act, 2003 amended s. 16 of the Refugee Act, 1996 by inserting the following subsection after subsection (17):“(18) the Tribunal shall ensure that an appeal against a recommendation of the Commissioner to which s. 13(5) or 13(8) applies shall be dealt with as soon as may be and, if necessary, before any other application for a declaration” (emphasis added).
Given that these were appeals against recommendations that the applicants should not be declared to be refugees, the statutory obligation to deal with the appeals “as soon as may be” clearly applied.
Unfortunately, no decision, ruling or determination was made in either case either then or since.
The requirement for courts of law or administrative tribunals which perform judicial-type functions to decide cases quickly is increasingly emphasised, both at international and domestic level.
The recent decision of the European Court of Human Rights in the case of McMullen v. Ireland (delivered 29th July, 2004) is indicative of that fact. It emphasises that a State is obliged to organise its legal system so as to allow its courts to comply with the ‘reasonable time’ requirement of Article 6 of the Convention which, insofar as relevant, reads as follows:“In the determination of his civil rights and obligations … everyone is entitled to a hearing within a reasonable time by a tribunal”.
The court noted (at par. 38) that:“If a State lets proceedings go beyond the ‘reasonable time’ prescribed by Article 6 of the Convention without doing anything to advance them, it will be considered responsible for the resultant delay”.
In our own domestic law, recognition for the requirement that courts deliver their judgments speedily has now received statutory acknowledgement in the Civil Liability and Courts Act, 2004. Section 55 (a) of that Act amended s.46 of the Courts and Court Officers Act, 2002 by inserting the following terms:“Subject to subsection (6), if judgment in the proceedings concerned is not delivered before the expiration of 2 months from the date on which it is reserved, the President of the Court shall, as soon as may be after -
(a) the said expiration, and
(b) the expiration of each subsequent period of 2 months (if judgment is not delivered first),list the proceedings or cause them to be listed before the judge who reserved judgment therein and shall give notice in writing to the parties to the proceedings of each date on which the proceedings are listed in accordance with this section.”
While the difficulties attendant on the non-delivery of decisions in the present cases may pre-date the two examples I have cited, the principle is neither revolutionary nor novel. Indeed the maxim “justice delayed is justice denied” is as old as the legal system itself.
In refugee applications where human rights are so essentially at stake, the requirement for speedy adjudication is both self-evident and indeed apparent from the relevant legislation. For example, judicial review applications challenging a decision of the Refugee Appeal Tribunal under s. 16 of the Refugee Act, 1996 must be brought within 14 days of the Tribunal’s determination. Whether or not it is specifically provided for by statute (and it is in this case), there is therefore a clear onus on a member/division of a tribunal who is dealing with business of this nature to do so expeditiously and promptly. This the second named respondent has singularly failed to do, and his failure to provide any explanation for his inactivity only adds insult to injury.
Some background information as to what happened appears from an affidavit which was sworn by Mr. John English, Higher Executive Officer of the Refugee Appeals Tribunal, in which he deposed as follows:“3: The decision by the Chairperson of the Tribunal to re-assign a number of appeals that had been heard but not yet determined by Mr. Joseph Barnes followed representations from the Refugee Legal Service. On 28th November, 2003, there were in respect of this particular member a backlog of decisions affecting 90 applicants. As of 31st December, 2003 the backlog had been reduced to 85 applicants. This number was reduced to 62 in total as of 4th February, 2004 and 58 as of 27th February, 2004. During this four month period, there were a number of meetings between the member and the chairperson in an attempt to resolve the problem and although progress was made in a number of outstanding decisions, it was considered unsatisfactory by the Chairperson.
4. At a meeting in February 2004, representatives of the Refugee Legal Service expressed concerns to the Tribunal at the length of time between the hearing of the cases and the issuing of the decisions. The Refugee Legal Service had particularly identified the problem relating to decisions following hearings before Mr. Joseph Barnes. In fact, the Legal Service at the time acted on behalf of the applicant.
5. Following this meeting, the Chairperson of the Tribunal decided to re-assign cases from the member in question to other members of the Tribunal where the Refugee Legal Service had acted as solicitor and where there had been substantial delay by the member in issuing his decision following the hearing. In all, cases affecting 33 people were re-assigned to 3 different experienced members of the Tribunal. Some of the cases had been heard as far back as July and August 2002 by Mr. Barnes and the most recent had been heard in May 2003. Where only 6 months had elapsed since the hearing of the case or where Mr. Barnes had substantially completed his decision, the Chairperson did not re-assign it.
6. In reaching his decision, the Chairperson of the Tribunal had regard to the obligation on the part of the Tribunal to dispose of appeals with due expedition consistent with fairness and natural justice. Whilst some progress had been made by the particular member during the four months up to February 2004, there remained a substantial backlog of cases that had to be addressed. That has been done by re-assigning appeals to other members of the Tribunal as aforesaid in circumstances where they will be entitled to a full re-hearing de novo. In this regard, notes taken by Mr. Barnes are not kept on file and the Tribunal will, in accordance with its normal practice where cases are re-heard following a successful judicial review, ensure that any notes on the file are removed”.
Following this determination, Ms. Edobor’s legal representatives were notified on 16th March, 2004 that there would be an oral hearing of the applicant’s appeal on 29th March, 2004 before the third named respondent. A similar notification, as already noted, was sent to Mr. Massaoudi’s advisers.
This purported divesting of the cases from the member/division of the Refugee Appeal Tribunal led to the instigation of the present proceedings which resulted in the making of orders of mandamus by the High Court directed to the second named respondent and of certiorari quashing the decision of the first named respondent.
Section 15 of the Refugee Act 1996 (as substituted by s. 11 of the Immigration Act, 1999 and s. 7 of the Immigration Act, 2003) provides:“(1) On the establishment day there shall stand established a Tribunal to be known as the Refugee Appeals Tribunal (in this Act referred to as ‘the Tribunal’) to consider and decide appeals under s. 16 of this Act.
(2) the Tribunal shall be independent in the performance of its functions
(3) the provisions of the Second Schedule shall have effect in relation to the Tribunal”.
Paragraph 1 of the Second Schedule provides:
“(1) the Tribunal shall consist of the following members –
(a) a chairperson, and
(b) such and such number of ordinary members as the Minister, with the consent of the Minister for Finance, considers necessary for the expeditious dispatch of the business of the Tribunal,each of whom shall have had not less than 10 years experience as a practising barrister or a practising solicitor before his or her appointment.
Paragraph 11 of the Schedule provides:“11. Whenever the Tribunal consists of more than one member, it shall be grouped into divisions each of which shall consist of one member.
13. The chairperson shall assign to each division the business to be transacted by it.
14. The chairperson shall endeavour to ensure that the business of the Tribunal is managed efficiently and the business assigned to each division is disposed of as expeditiously as may be consistent with fairness and natural justice.
15. The chairperson may, if he or she considers it appropriate to do so in the interest of the fair and efficient discharge of the business of the Tribunal, assign classes of business to each division having regard to the following matters:-
(a) the grounds of the appeal set out in the notices of appeal,
(b) the country of origin of the applicants,
(c) any family relationship between applicants,
(d) the ages of the applicants and, in particular, of persons under the age of 18 years in respect of whom applications are made,
(e) the provision of this Act pursuant to which the appeals are made,
16. The chairperson may delegate to a member of his or her staff his or her functions of assigning to each division the business to be transacted by it.”
Quite clearly the ‘business’ must be taken as describing the statutory function of the Tribunal under s. 15 ‘to consider and decide appeals’ under s. 16 of the Act.
It seems incontrovertible, and was so found by the High Court judge, that once an appeal is assigned to a member of the Tribunal, that person, acting as a division of the Tribunal, must then discharge the statutory function and duty of the Tribunal to consider and determine the appeal. In so doing, he or she must, of necessity, possess both the independence of the Tribunal and have all the statutory powers and duties conferred on the Tribunal. There is nothing in s. 16 of the Act or the Second Schedule thereto which suggests that any distinction be drawn between a division of the Tribunal and the Tribunal itself in this context.
Any suggestion that the member owes a duty only to the Tribunal, and not to an applicant, seems to me to be an unstateable proposition. The person whose interests and rights are most at stake in this process is the applicant, and where such an interest exists there must be a corresponding duty on the deciding officer to adjudicate. The duty of the Tribunal and its chairperson on the other hand is both a duty to the applicant and a more general duty to ensure that the business of the Tribunal is managed in accordance with its statutory remit to transact its business efficiently and expeditiously, consistent with fairness and natural justice.
No authority for the proposition that the Tribunal may divest and re-assign cases from a member who has heard the appeal to some other member has been opened to the court.
Where a division of the Tribunal has business assigned to it, it is a startling proposition and one that requires some considerable justification to suggest that, without good and sufficient reason, the case sent for determination and actually heard by the member/division can be removed from that member/division. To begin with, it is an affront to the notion that the Tribunal, when acting through one of its divisions, is independent in the performance of its functions.
While no contention has been advanced on behalf of Mr. Barnes in the instant case that his independence has been interfered with by the purported re-assignment, the court must look beyond the facts of the present case to other cases where that consideration might well arise. Where a member/division of the Tribunal actively resists the withdrawal and re-assignment of a case which has been assigned to and perhaps heard by him, one can readily imagine that considerations of independence can and will then be under intense focus. This is a backdrop to be kept in mind when considering the present case.
The learned High Court judge noted that the statutory provisions outlined above were entirely silent on the issue as to whether or not a member/division could be divested of a case which had been assigned to it. However, the High Court found that the legislation must be read and interpreted as being subject to an implied power to re-assign an appeal to another member of the Tribunal – even perhaps after an oral hearing – in certain circumstances. Those circumstances were identified by the court as involving cases where:-
(a) The first member is unable for physical or mental reason to determine the appeal, or
(b) The first member is unable as a matter of law to issue a valid determination.
This interpretation is entirely in conformity with the presumption that the Oireachtas is taken not to intend the carrying out of its enactments to be unworkable or impracticable, and obviously the court should be slow to find in favour of a construction that leads to such consequences. A failure to find that those two circumstances at least may be implied into the statute would have precisely that effect.
As Bennion points out at p.832 of his text on Statutory Interpretation (4th Edition, 2002):-
“The court seeks to avoid a construction of an enactment that produces an unworkable or impracticable result, since this is unlikely to have been intended by Parliament. Sometimes, however, there are overriding reasons for applying such a construction, for example where it appears that Parliament really intended it or the literal meaning is too strong.”
The former of the two considerations cited by Bennion clearly requires adopting the approach taken by the learned High Court Judge.
However, I would be strongly of the view that cases where the statutory scheme can be interpreted in this way must be very limited in number, having regard to the requirement for independence of the Tribunal and, thus by extension, any member/division performing the role of the Tribunal. This requirement calls for a narrow, and not a broad, interpretation of the statutory provisions.
In Boland v. Garda Síochána Complaints Board and Garda Síochána Complaints Tribunal (Unreported, High Court, 28th November, 2003) no statutory provision was in place to allow the Tribunal to which a case had been assigned to send it back to the Board. There was in the particular case no evidence of any sort that the Tribunal, which had embarked upon the case and held a preliminary hearing, had ever decided of its own volition to refer the particular complaint back to the Garda Síochána Complaints Board. The particular Tribunal had held an initial hearing in June 2000 but there was no evidence it had ever sat again. I found in that case that the removal by the Board of the complaint from the Tribunal body to which it had been entrusted by the Board was an ultra vires act and that it would therefore follow that any purported re-allocation of the matter to a new Tribunal would for that reason be ultra vires. It seems to me that a similar statutory and evidential vacuum, and one with similar consequences, exists in this case also.
The instant case leaves many questions unanswered and singularly fails to provide an explanation for the inactivity of the second named respondent. To suggest that there was a heavy workload in the Refugee Appeals Tribunal and that the system is in some way to blame in no way exonerates the second named respondent. There is no suggestion that the second named respondent was compelled to undertake and deal with the particular number of cases which were assigned to him, or that he was ill or otherwise incapacitated. In fact, this court was informed through counsel that he remains a member of the Refugee Appeal Tribunal, continuing to hear, and one hopes, dispose of cases coming before him.
No evidence has been led or tendered in this case which would suggest that the second named respondent came within any of the categories identified in the judgment of the High Court. I can see no reason for widening those categories, given that any such approach would reduce the autonomy and independence of the member/division charged with decision-making in any particular case.
Even if there was an implied general power to re-assign cases for any good or sufficient reason, I would agree with the learned High Court judge that there would have to be some clear evidence before the chairperson to enable him form the view that there was such reason before making any decision to re-assign. If there was in these cases evidence of relevance to this consideration, then that evidence was not placed before the High Court. In such circumstances it seems to me there could be no power to remove either of the appeals in these cases from the second named respondent. That being so, the decision to remove the appeals from the second named respondent was, in my view, ultra vires and should be quashed. I would also see the order of mandamus as one properly made in the circumstances.
I would wish to add the following observation. It appears to me that the applicants, by opting to seek the remedy of mandamus, have thereby disentitled themselves from raising any objection on grounds of delay in the context of any further consideration of this matter now by the second named respondent. It is simply not open to an applicant to simultaneously affirm and disavow when seeking a remedy by way of judicial review. Reference has been made to a number of English cases where delay per se provides a basis for quashing a decision of this nature, particularly where issues of the applicant’s credibility might be involved.
Some such entitlement might also have arisen in the instant case if a remedy other than mandamus had been sought.
I would have preferred an outcome which drew a line altogether under this unhappy business, but will confine myself in the circumstances to the view that the appeal herein should be dismissed.
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