Nyembo v Refugee Appeals Tribunal

• Jurisdiction: Ireland
• Judge: Denham J.
• Judgment Date: 19 June 2007
• Neutral Citation: [2007] IESC 25
• Court: Supreme Court
• Docket Number: Appeal No. 395/2006
• Date: 19 June 2007

[2007] IESC 25

THE SUPREME COURT

Denham J.

Fennelly J.

Finnegan J.

Appeal No. 395/2006

NYEMBO v REFUGEE APPEALS TRIBUNAL & NICHOLSON

Between/

Richard Nyembo

Applicant/Appellant

and

The Refugee Appeals Tribunal and James Nicholson

Respondents

RSC O.25

RSC O.34 r 2

DELANY & MCGRATH CIVIL PROCEDURE IN THE SUPERIOR COURTS 2ED 2005 505 PARA 19.01

KILTY v HAYDEN 1969 IR 261

TARA MINES v MIN FOR INDUSTRY 1975 IR 242

F (B T) v DPP 2005 2 IR 559 2005 2 ILRM 367 2005 24 4872 2005 IESC 37

WINDSOR REFRIGERATOR CO LTD v BRANCH NOMINEES LTD 1961 CH 375

Abstract:

Practice and procedure - Asylum law - Preliminary issue - Whether this was an appropriate case to have two issues of law determined as preliminary issues.

The applicant/appellant appealed from a decision of the High Court, which ordered that two issues of law should be determined as preliminary issues. Those issues related to the alleged prejudice and bias of the second named respondent in determining appeals from the Refugee Applications Commissioner. Trial of a preliminary issue was requested in the High Court by the respondents in judicial review proceedings. The appellant submitted that this was not an appropriate case for the trial of preliminary issues as there were contested facts and in particular alleged that the conceded facts by the respondents fell short of the cases mounted by the applicant.

Held by the Supreme Court (Denham, Fennelly, Finnegan JJ) in allowing the appeal and remitting the matter to the High Court: 1. That in the circumstances of this case, where there were contested facts, which were relevant to the issues of law and where there was no agreement on the facts and where the facts were not even conceded for the purpose of the preliminary issues, it was not appropriate, practical or convenient to have preliminary issues of law determined.

Tara Mines v. Minister for Industry and Commerce [1995] IR 242 applied.

Reporter: L.O’S.

Denham J.

1 This is an appeal by Richard Nyembo, the applicant/appellant, hereinafter referred to as 'the applicant', from the decision of the High Court (Feeney J.), delivered on the 6th October, 2006, which ordered that two issues of law should be determined as preliminary issues. These were stated as:-

2 "1. Whether as a matter of law statistical evidence on the outcome of decisions of the second respondent as a member of the Refugee Appeals Tribunal is admissible in evidence.

3 2. Whether as a matter of law statistics and/or evidence relating to the outcomes or results of decisions made by the Refugee Appeals Tribunal can without more constitute a basis for a finding of actual and/or apparent bias."

4 The learned trial judge further ordered that the agreed facts upon which to base the trial of the preliminary issues be:

"The second named Respondent has not during the period from the 1st day of January 2002 to the 30th day of June 2004 set aside any recommendation of the Refugee Applications Commissioner and during that period he heard hundreds of Appeals"

5 2. Trial of a preliminary issue was requested in the High Court by the respondents in judicial review proceedings. On 8th March, 2006 the High Court (Butler J.) granted leave for judicial review, after a two day hearing. Having explained that he generally did not give a written judgment when he is granting leave, the learned High Court judge stated:-

"Mr. Nyembo is from the Democratic Republic of Congo. He now lives in Cork and arrived here on the 23rd April, 2003. In a nutshell, he alleges serious risk of injury or death if he is returned to the Democratic Republic of Congo. He appealed the ORAC decision in September 2004 and was notified that his appeal was due to be heard by Mr Jim Nicholson. He was advised by Mr Colm Stanley, his Solicitor, that he had never known a positive decision from that particular member. There is uncontested evidence from a number of solicitors that they feel obliged to advise appellants that there is no prospect of success before this particular member. The reliefs sought are listed in the Notice of Motion.

Mr MacGrath S.C. convincingly argued that statistics alone are not enough to prove bias and he put forward strong authorities in that regard. But the situation here is unique in that in any cases involving an oral hearing before the Refugee Appeals Tribunal, no Applicant has even succeeded before this Tribunal Member. Mr MacGrath was correct in stating that this case goes beyond statistical analysis and in relation to judicial decisions it is hoped that one would never reach a situation where legal advisors feel that they have to advise their clients that there is no possibility of success before a particular Judge. I note the argument in relation to statistics and I am not granting leave on that point. I am therefore excluding all grounds in relation to statistics and I am granting leave to Nyembo on the following grounds:"

6 3. In relation to the relief sought, the High Court limited the reliefs to those set out in paragraphs 4 b, c, f and g, being:

7 (b) In the alternative to (a), an Order of Prohibition restraining the second named respondent from hearing the applicant's appeal to the first named respondent.

8 (c) Further to (b), and in the alternative to (a), an Order of Mandamus requiring the first named Respondent to re-assign the applicant's appeal to a Tribunal member other than the second named respondent.

9 (f) Such further or other Order as to this Honourable Court shall seem meet.

10 (g) An Order providing for costs.

11 Also, the grounds were limited to those set out in paragraph 5 a, d, e, f, g and m (sub paragraph a only). This was essentially the evidence proposed by the applicant.

12 4. The grounds upon which leave was granted were as follows:-

13 (a) Statistics available to the applicant, as compiled by one of the main legal practitioners in the area of refugee law, lead to the conclusion that there is no prospect of success for an appellant appearing by way of oral hearing before the second named respondent.

14 .....

15 (d) The applicant has been advised by legal practitioners working extensively in the area of refugee law that, to their knowledge, the second named respondent has never found in favour of an appellant in an oral hearing, despite having determined hundreds of cases.

16 (e) By reason of (a) … and (d), the applicant believes that the second named respondent is biased and predisposed against appellants who appear before him by way of oral hearing, and the applicant believes that he will not receive a fair hearing from the second named respondent and that, by reason of the second named respondent's bias, he has no prospect of success if his appeal is heard and determined by the second named respondent.

17 (f) By reason of (a) … and (d), the applicant has objective and reasonable grounds for his belief that the second named respondent is biased and predisposed against appellants who appear before him in an oral hearing.

18 (g) By reason of (a), … and (d), there is strong evidence that the second named respondent is biased and predisposed against appellants who appear before him in an oral hearing.

19 (m) The applicant has a reasonable fear that his hearing will not be...