G E v Refugee Appeals Tribunal

• Jurisdiction: Ireland
• Judge: Mr. Justice Kearns,Fennelly J
• Judgment Date: 16 March 2005
• Neutral Citation: [2005] IESC 15
• Court: Supreme Court
• Docket Number: [S.C. No. 416 of 2004]
• Date: 16 March 2005

[2005] IESC 15

THE SUPREME COURT

Murray C.J.

Fennelly J.

Kearns J.

[No. 416 JR/2004]

[No. 417 JR/2004]

Edobor v. Ryan, Barnes, Garvey and Minister For Justice Equality & Law Reform

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 AND LAW REFORM

APPELLANTS/RESPONDENTS

AND

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

1 JUDGMENT of Mr. Justice Kearns delivered the 16th day of March, 2005.

2 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.

3 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 1996which is dated 27th September, 2002. Subsequently the report of the results of the investigation pursuant to s. 13(1) of the Refugee Act 1996was 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.

4 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.

5 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.

6 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.

7 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.

8 Section 7(i)(x) of the Immigration Act, 2003amended s. 16 of the Refugee Act, 1996by 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).

9 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.

10 Unfortunately, no decision, ruling or determination was made in either case either then or since.

11 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.

12 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"

13 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"

14 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, 2002by 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 -"

15 (a) the said expiration, and

16 (b) the expiration of each subsequent period of 2 months (if judgment is not delivered first),

17 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."

18 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.

19 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, 1996must 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.

20 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:

21 2 "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...