The record of one member of the Refugee Appeals Tribunal in rejecting all appeals before him is such as to give rise to an appearance of bias, the High Court was told yesterday.
Senior counsel Mel Christle was opening an application on behalf of two of three asylum seekers who are appealing against the rejection of their initial applications.
He said seven solicitors, "reasonable and well-informed officers of the court", had signed affidavits saying that they had to advise clients there was no prospect of a positive decision from James Nicholson, a member of the Refugee Appeals Tribunal.
He said this was based on their experience and on statistics drawn up by the Cork Refugee Legal Service.
The three applicants are seeking leave to bring judicial review proceedings against the tribunal and Mr Nicholson.
The reliefs they are seeking include an order prohibiting Mr Nicholson from hearing the applicants' appeal; the reassigning of the applicants' appeals to other tribunal members; and the publication of the number of appeals heard by Mr Nicholson between January 1st, 2003, and June 30th, 2004, and the number of positive decisions he made, if any.
"What the solicitors are deposing is that there is no prospect of a positive decision being handed down, and they have to advise their clients accordingly," he said.
"Such a record must amount to a perceived bias on the part of the respondents in the circumstances."
Asked by Mr Justice Butler if this matter had come before the High Court before, Mr Christle said allegations of bias on the part of Mr Nicholson had, but after he had heard an appeal.
This was the first time that appellants had taken steps to deal with the perception of bias before the appeal hearing.
He read from an affidavit of Cork solicitor Colm Stanley, who had sought statistics relating to Mr Nicholson's rulings prior to his client appearing before him. The tribunal had insisted on the hearing going ahead without responding to the request for statistics.
"The applicant was left with no alternative but to seek relief from the High Court," Mr Christle said.
He also read from an affidavit by Bernadette McGonigle of the Cork Refugee Legal Service.
It said: "I have never known, or heard from any other lawyer, of the second-named respondent [Mr Nicholson] finding in favour of an appellant who has appeared before him by way of oral hearing despite the fact that I and my colleagues have been involved in hundreds of such appeal hearings.
"This is at gross variance with my experience of other tribunal members."
She added that she had compiled statistics of the cases she and her colleagues in the refugee legal service had been involved in and which were heard by Mr Nicholson from January 1st, 2003, to June 30th, 2004.
"Fifty-seven cases were heard and determined by the second-named respondent; in all of which the said respondent determined the case against the appellant. This is at gross variance to the average success rate for appellants appearing before the Refugee Appeals Tribunal."
She said when the appellant in this case heard of this record, he became extremely upset.
He eventually went to a private solicitor to take judicial review proceedings against the tribunal seeking, among other things, an alternative tribunal member to hear the appeal.
Managing solicitor of Cork Refugee Legal Service John McDaid said in his affidavit that from July 2004 until December 2004, after Ms McGonigle had completed her survey, he kept records of outcomes on a spreadsheet.
He recorded 48 decisions from Mr Nicholson from oral hearings and 26 from written appeals. None of them favoured the appellant. This was a total of 74 negative decisions in this period.
Mr McDaid's affidavit concluded: "In the light of the absence of any practitioner dealing in the area of refugee law having a recollection of the second-named respondent ever having made a recommendation for refugee status in favour of an appellant, and also in the light of my own observations, I now feel obliged to advise all my clients whose cases have been assigned to the second-named respondent that there is no prospect of their appeal being successful."
The application for leave for a judicial review continues today.