Court rules in favour of Refugee Appeals Tribunal chief

A MAJORITY finding of the Supreme Court yesterday held that the Refugee Appeals Tribunal chairperson had validly reassigned appeals by two non-nationals because the original appeals’ officer allegedly delayed giving decisions.

One judge said that from the point of view of the two refugees, what happened to them “must be bewildering in the extreme”. Both asylum seekers were refused asylum status and their appeals came before a member of the Refugee Appeals Tribunal, but they heard nothing until they got letters advising of the purported reassignment of their cases to another member of the tribunal.

Mr Justice Fennelly, giving the majority decision of the court of three (Chief Justice John Murray agreed) said the particular tribunal member 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 May last year the chairperson decided to reassign a number of cases to other tribunal members, which included the two applicants. The two refugees had complained that it was unfair to reassign after there had been an oral hearing. In the High Court, Ms Justice Finlay Geoghegan had ordered that the person who originally heard the two appeals should make a decision in each case. She held the chairperson of the tribunal in these cases had no power to reassign the appeals. The tribunal and minister for justice appealed the finding.

Mr Justice Fennelly said the Refugee Act of 1996 conferred powers on the chairperson to “assign to each member the business to be transacted”. But he believed that the High Court judge erred in deciding the chairperson had the power to remove or reassign business 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, said Mr Justice Fennelly, risked the description of judicial legislation. In his opinion the chairperson had general power to assign and reassign cases already assigned. The chairperson was confronted with a difficult situation. There was a serious backlog of cases, especially associated with one member and this was not of the chairperson’s making.

Mr Justice Kearns, in a dissenting judgment, said this case left many questions unanswered and singularly failed to provide an explanation for the inactivity of the original appeals officer.