PPA v Refugee Appeals Tribunal

JurisdictionIreland
CourtSupreme Court
JudgeMr. Justice Geoghegan
Judgment Date26 July 2006
Neutral Citation[2006] IESC 53
Date26 July 2006
Docket Number[S.C. Nos. 293, 292 & 294 of

[2006] IESC 53

THE SUPREME COURT

Murray C.J.

Denham J.

McGuinness J.

Hardiman J.

Geoghegan J.

Record No. 293/2005
Record No. 292/2005
Record No. 294/2005
A (PP) v Refugee Appeals Tribunal
BETWEEN/
PETAR PETROV ATANASOV
Respondent/Applicant

and

REFUGEE APPEALS TRIBUNAL (TRIBUNAL MEMBER AIDAN EAMES), CHAIRPERSON OF THE REFUGEE APPEALS TRIBUNAL AND MINISTER FOR JUSTICE, EQUALITY AND LAW REFORM
Respondents/Appellants
BETWEEN/
MOTUNDE ALABA OPESYITAN AND BUNMI ALABA OPESYITAN (A MINOR SUING BY HER MOTHER AND NEXT FRIEND MOTUNDE ALABA OPESYITAN) AND OLAYEMI ALABA OPESYITAN (A MINOR SUING BY HER MOTHER AND NEXT FRIEND MOTUNDE ALABA OPESYITAN) AND OLUWADAMILOLA ALABA OPESYITAN (A MINOR SUING BY HIS MOTHER AND NEXT FRIEND MOTUNDE ALABA OPESYITAN) AND ENIOLA ALABA OPESYITAN (A MINOR SUING BY HER MOTHER AND NEXT FRIEND MOTUNDE ALABA OPESYITAN)
Applicants/Respondents

and

THE REFUGEE APPEALS TRIBUNAL, IRELAND AND ATTORNEY GENERAL
Respondents/Appellants

and

THE HUMAN RIGHTS COMMISSION
Notice Party
BETWEEN/
MASONGMEHI NJUAKEA FONTU
Applicant/Respondent
AND THE REFUGEE APPEALS TRIBUNAL, IRELAND AND THE ATTORNEY GENERAL
Respondents/Appellants
AND HUMAN RIGHTS COMMISSION
Notice Party

REFUGEE ACT 1996 S19

REFUGEE ACT 1996 S19(2)

REFUGEE ACT 1996 S19(4A)

EUROPEAN CONVENTION ON HUMAN RIGHTS ART 6(1)

CONSTITUTION ART 34.1

ANSBACHER (CAYMAN) LTD, IN RE 2002 2 IR 517 2002 2 ILRM 491 2002/2/294

IMMIGRATION ACT 2003 S7

IMMIGRATION ACT 2003 S19(4A)(A)

REFUGEE ACT 1996 S19(4A)(A)(B)

MANZEKA v SECRETARY OF STATE FOR THE HOME DEPT 1997 IMM AR 524

REFUGEE ACT 1996 S19(5)

REFUGEE ACT 1996 S9(15)

REFUGEE ACT 1996 S26

REFUGEE ACT 1996 S16(17)

RAIU v REFUGEE APPEALS TRIBUNAL 2003 2 IR 63 2003/45/10951

POP v MIN FOR JUSTICE UNREP BUTLER JUNE 2004 (TRANSCRIPT UNAVAILABLE)

CONSTITUTION ART 40.3

IMMIGRATION

Asylum

Fair procedures - Access to previous decisions of tribunal - Statutory discretion -Refugee status - Appeal against refusal to grant refugee status - Whether applicants entitled to access to previous decisions of tribunal - Whether tribunal exercised statutory discretion lawfully - Manzeke v Secretary of State for the Home Department [1997] Imm AR 524 approved - Refugee Act 1996 (No17), ss 16(17), 19 and 28 - Immigration Act2003 (No 26), s 7 - Constitution of Ireland1937, Article 40.3 - Respondent's appeal dismissed (294/2005 - SC - 26/7/2006)[2006] IESC 53, [2007] 1 ILRM 288

A (PP) v Refugee Appeals Tribunal

: The appellant appealed the decision of the High Court (McMenamin J.) directing that the refusal of the Refugee Appeals Tribunal to make available relevant tribunal decisions as requested or identified by an applicant was in breach of fair procedures and/ or Article 40.3 of the Constitution.

Held by the Supreme Court, in varying the order of the High Court, that s. 19(4A) Refugee Act 1996 further provided statutory grounds for the availability of the decisions. The order as varied only related to litigants who in advance of the hearing had requested access to relevant precedents and had been refused.

Reporter: E.F.

1

JUDGMENT of Mr. Justice Geoghegan delivered the 26th day of July 2006

2

These three appeals which were heard together raise a point of great importance namely, whether an appellant before the Refugee Appeals Tribunal is legally and/or constitutionally entitled to access previous decisions of the Tribunal in which similar and, therefore, relevant issues of law arose.

3

As the history of each case is not identical, it is important that I should briefly summarise the procedural history and the nature of the claim in each case. But before doing so, I should mention that in the judicial review proceedings brought by each applicant in the High Court, that court (MacMenamin J.) made an identical order subject only to adjustments of pronouns, gender and singular and/or plural. By way of sample the order in the Atanasov case reads as follows:

"The court doth declare that the refusal of the first and second-named respondent to make available to the applicant relevant tribunal decisions as requested or identified and as sought by the applicant is in breach of the applicant's rights to fair procedures and natural and constitutional justice pursuant to the provisions of Article 40.3 of the Constitution."

4

A summary of the proceedings in each case is as follows:

The Atanasov case
5

In this judicial review application made with leave, the applicant sought a large number of reliefs all essentially with the same end in view which is encapsulated in Relief L) in the statement of grounds. That reads:

"An order directing the first-named respondent to grant access to the applicant and/or his legal advisers to previous decisions and recommendations of the first-named respondent that are relevant to his appeal and/or the issues raised in his appeal".

6

It is not necessary to detail the rest of the wide-ranging reliefs. It suffices to state that they included declaratory relief of the kind ultimately granted though not in the precise wording. The reference to "the refusal of the preliminary application" is a reference to correspondence to which I will now refer.

7

By letter of the 18th May, 2004 from Messrs Niall Sheerin and Co., solicitors for this applicant to Aidan Eames, the relevant tribunal member in the Refugee Appeals Tribunal, it was made clear that the solicitors were seeking access on behalf of their client to previous relevant decisions of the Tribunal and to be furnished with copies of any guidelines issued by the Tribunal to tribunal members which were relevant to the conduct of appeals and/or the issues which were named in the client's appeal. In the same letter, the solicitors drew attention to the amendment of section 19 of the Refugee Act, 1996 as inserted by the Immigration Act, 2003 which had come into force on the 15th September, 2003. It would seem sensible to flag at this point that an issue which arises in this case is whether, if there are such rights of access and if they arise solely by reason of that amendment effected by the Immigration Act, 2003, this particular applicant enjoys those rights, given that his appeal, unlike the other two, came into existence prior to the 15th September, 2003. I will return in due course to this point. The letter went on to set out the relevant amendment which was the insertion of a new subsection (2) and a new subsection (4A) into the 1996 Act. I will deal with these provisions in detail later. It is sufficient at this stage to indicate that the new section 19(2), subject to certain exceptions, prescribed that no matter, likely to lead members of the public to identify an applicant, should be published in any written publication available to the public or be broadcast without the consent of that person. The new subsection (4A) is a curiously drafted provision in that it gives the discretion to the Chairperson of the Tribunal to decide not to publish a decision which in his or her opinion is not of legal importance. It then goes on to provide that any decision published should exclude any matters which would tend to identify a person as an applicant.

8

The solicitors went on to submit in the letter a case which has been made throughout these proceedings by all three sets of applicants, that the effect of the amendment was to impose a statutory obligation on the Tribunal to publish decisions of the Tribunal which were of legal importance. As will have been noted, the subsections do not expressly say any such thing. They are directed at what need not be published rather than what has to be published. I will be returning to this matter also. A lengthy argument in favour of the solicitors" point of view is set out in the letter and then more specifically, they inform Mr. Eames that the applicant and his advisers are seeking access to previous decisions of the Tribunal which concern or relate to fear of persecution on grounds of sexual orientation and/or which relate to fear of persecution by reason of membership of a particular social group and that they are also seeking access to previous decisions which concern the issue of the appropriate standard and burden of proof applicable in asylum appeals. By the time the matter came to court, the demands had narrowed but the point of principle remained.

9

In the same letter, the solicitors then go on to emphasize an important point which featured prominently in the High Court and in this court. They pointed out that the presenting officers who act as advocates on the appeals on behalf of the State are located in offices within the tribunal building and are granted access through what is described as the Tribunal's "master file" in respect of applicants and are, therefore, in a position to access the kind of information that the solicitors were seeking in respect of previous decisions. They went on to further point out that this meant that these presenting officers, in practice, could share the decisions with each other in effect enabling access for presenting officers to previous decisions in general. For the presenting officers to have this assistance and the appellant to be deprived of it, was a breach of fair procedures/natural justice in the view of the solicitors, and indeed in the view of the various applicants" counsel throughout the proceedings. The requirement of equality of arms under Article 6(1) of the European Convention on Human Rights is then referred to in the letter.

10

By a follow up letter of the 8th June, 2004 an audio cassette of a previous hearing was requested on the basis that it had already been promised and the submissions of the letter of the 18th May were reiterated. A formal letter came from the...

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