Messaoudi & Edobor v Refugee Appeals Tribunal and Others

• Jurisdiction: Ireland
• Judge: Ms. Justice Finlay Geoghegan
• Judgment Date: 29 July 2004
• Neutral Citation: [2004] IEHC 156
• Docket Number: [No. 244 J.R./2004]
• Court: High Court
• Date: 29 July 2004

[2004] IEHC 156

THE HIGH COURT

[No. 244 J.R./2004]

[No. 284 J.R./2004]

MESSAOUDI & EDOBOR v. REFUGEE APPEALS TRIBUNAL & ORS

JUDICIAL REVIEW

BETWEEN

ABDENOUR MESSAOUDI

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 AND GRACE EDOBOR AND THE CHAIRPERSON OF THE REFUGEE APPEALS TRIBUNAL, MR. JOSEPH BARNES SITTING AS THE REFUGEE APPEALS TRIBUNAL, MR. BEN GARVEY SITTING AS THE REFUGEE

Respondents

MESSAOUDI & EDOBOR v. REFUGEE APPEALS TRIBUNAL & ORS

AND

BETWEEN

GRACE EDOBOR

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 AND GRACE EDOBOR AND THE CHAIRPERSON OF THE REFUGEE APPEALS TRIBUNAL, MR. JOSEPH BARNES SITTING AS THE REFUGEE APPEALS TRIBUNAL, MR. SITTING AS THE REFUGEE

Respondents

Citations:

REFUGEE ACT 1996 SCH II PAR 12

REFUGEE ACT 1996 SCH II PAR 14

REFUGEE ACT 1996 S15

IMMIGRATION ACT 1999 S11(1)(J)

REFUGEE ACT 1996 SCH II PAR 1

LOCAL GOVT (PLANNING & DEVELOPMENT) ACT 1976 S3

BYRNE & MCCUTCHEON IRISH LEGAL SYSTEM 4ED 2001 PAR 1.29

MURDOCH DICTIONARY OF IRISH LAW 3ED 2000

REFUGEE ACT 1996 S16

REFUGEE ACT 1996 SCH II PAR 11

REFUGEE ACT 1996 S16(3)

REFUGEE ACT 1996 S16(10)

EAST DONEGAL CO-OP V AG 1970 IR 317

O'KEEFFE V BORD PLEANALA 1993 1 IR 39

SAMBASIVAM V SECRETARY OF STATE FOR THE HOME DEPT 2000 IMM AR 85

ASYLUM APPEALS (PROCEDURE) RULES 1996 SI 2070/1996 r11(1)

ASYLUM APPEALS (PROCEDURE) RULES 1996 SI 2070/1996 r41(1)

MARIO V SECRETARY OF STATE FOR THE HOME DEPT 1998 IMM AR 312

Abstract:

Immigration - Asylum - Judicial review - Mandamus - Certiorari - Whether the first named respondent was entitled to reassign the applicant’s appeals following an oral hearing by a member of the RAT - Refugee Act, 1996.

Facts: Two separate claims for judicial review were heard contemporaneously. Both applicants arrived in the State, claimed asylum and were refused. Both applicants appealed the recommendation of the Refugee Applications Commissioner to the Refugee Appeals Tribunal (RAT). Both applicants received an oral hearing before the respective second named respondents. However prior to receiving any decision from the second named respondents an oral hearing was rescheduled before the third named respondents. No explanation was provided for the rescheduling. Accordingly, each applicant sought an order of mandamus compelling the second named respondent to make and give a decision in their appeals and an order of certiorari of the decision of the first named respondent to reassign the hearing and determination of their appeals to the third named respondent.

Held by Finlay Geoghegan J in granting the orders sought:

1. That the intention of the Oireachtas to be derived from the Act of 1996 and in particular ss 15 and 16 and the second schedule thereto was that the Tribunal was to be a legal person with rights and duties distinct from its members. Accordingly, the Tribunal and the second named respondent were two separate persons. 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 was an obligation owed to the applicant. Accordingly, the second named respondent breached his duty to the applicant to determine the appeal within a reasonable period.

2. That the second named respondent had seisin of the appeals and accordingly was obliged as a matter of law to determine the appeals. In the circumstances, the first named respondent did not have an implicit power to remove the applicants’ appeals from the second named respondent. Accordingly the decision of the first named respondent to reassign the appeals to the third named respondents was ultra vires. There was no valid reason to remove the appeals from the second named respondent who, was under a duty to each of the applicants to determine their respective appeals.

Reporter: L.O’S.

JUDGMENT of

Ms. Justice Finlay Geoghegan

1 delivered on the 29th day of July, 2004 .

PRELIMINARY

2 This judgment is being given in two separate applications for judicial review which I heard contemporaneously. It was agreed on behalf of the parties that it would be appropriate that I give one judgment. The issues raised in each application are almost identical. The first, second and fourth named respondents are identical in each. The third named respondents are different but acting in a similar capacity and only consequential relief is sought against the third named respondents.

3 In each application the first relief sought is an order ofmandamus compelling the second named respondent to make and give a decision in an appeal brought by the applicant to the Refugee Appeals Tribunal("the Tribunal"). In each application an order of certiorari is sought of a decision of the first named respondent who is the Chairperson of the Tribunal. The decision was to reassign the hearing and determining of the applicant's appeal to a member of the Tribunal other than the second named respondent. The decision taken in respect of each applicant appears to have been taken for the same reasons. In respect of these applicants the decision was to assign the appeal to the third named respondent in each application. In each application an order of prohibition and other consequential relief is sought against the third named respondent.

4 In Ms. Edobor's application an order was made by Kearns J. on the 1st April, 2004, granting leave to apply for judicial review for the reliefs set out above on the grounds in the statement of grounds. An order was also made staying the proposed oral hearing before the third named repondent pending the determination of this application. In Mr. Messaoudi's case I made an order on the 21st April, 2004, granting leave. The third named respondent is not proceeding with the proposed oral hearing pending the determination of this application.

Background facts

5 Mr. Messaoudi is a national of Algeria who arrived in the State in May, 2002, and claimed asylum. The normal procedure was followed. A report and recommendation was issued on behalf of the Refugee Applications Commissioner that he not be granted asylum within the State. He appealed that recommendation to the Tribunal through his then solicitors, the Refugee Legal Service, by letter of the 17th December, 2002. By letter dated 5th March, 2003, he was informed through his solicitors that an oral hearing had been scheduled on the 25th March, 2003, before the second named respondent as the "Member of the Tribunal". That date was then changed to the 15th May, 2003. On that day an oral hearing was held before the second named respondent. The applicant was represented, gave evidence and was cross-examined.

6 Thereafter the applicant heard nothing further from the Tribunal until his solicitors received a letter dated 5th March, 2004. That letter is in standard form similar to the two previous letters received in relation to oral hearings save that it states "your client's oral hearing is rescheduled as follows". In the earlier letters the analogous statement read "your client's oral hearing is scheduled as follows". The rescheduling was for the 24th March, 2004, and it was indicated that the third named respondent was the "Member of the Tribunal". No explanation was given for the rescheduling of the oral hearing.

7 In response to this letter the Refugee Legal Service wrote to the Tribunal on the 8th March stating, "We refer to a notification dated 5 March 2004 to the effect that this case is to be rescheduled for hearing. Please note that this case has already been heard before Joe Barnes and a decision is awaited."

8 The Refugee Legal Service received a reply dated 12^th March, 2004, from W. Delaney of the Scheduling Unit of the Tribunal, the operative part of which stated:

9 "The hearing before Mr. Joe Barnes took place on the 15 May 2003.

10 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.

11 The Chairperson has considered the matter and has decided pursuant to the Refugee Act1996(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".

12 In response to this the Refugee Legal Service wrote further to the Tribunal on the 16^th March in the following terms:

"We refer to your letter of 12 March 2004 and note the contents thereof particularly “the likelihood of the Tribunal member being unable to issue a decision within an acceptable time frame". In this regard we note that Mr. Barnes has issued a number of decisions recently in relation to outstanding cases. A decision was received by this office yesterday in relation to case number 69/29672/01 which decision is dated 5 March 2004. The hearing in that particular case took place on 8 May 2003 which is only a week apart from Mr. Messoudi's hearing. We would also refer to a decision which has recently issued in the case of 69/29920/01 A and B, the hearing of which took place in September of 2002.

13 In the circumstances can you please confirm why this particular case is being reassigned to another Tribunal member for re-hearing while decisions are being issued in a number of other cases.

14 Pending receipt of your response and us having an opportunity to...