Statistics on previous decisions cannot be the basis for a finding of bias on the part of a decision-maker, the High Court was told yesterday.
Senior counsel Michael McGrath told Mr Justice Paul Butler that there must be something in the case itself to indicate a possibility of bias before that could be the basis for a judicial review.
He was responding to the case made by three asylum seekers, who were seeking leave to bring a judicial review of the allocation of their cases to James Nicholson by the Refugee Appeals Tribunal. They claimed that his 100 per cent refusal record gave grounds for their fear of bias on his part. They were asking the chairman of the tribunal to allocate their cases to a tribunal member other than James Nicholson, or alternatively to provide statistics on his decisions, including decisions he made allowing appeals.
Earlier, senior counsel Jim O'Leary, on behalf of one of the applicants, had pointed out that seven solicitors from the Refugee Legal Service and private practice, all specialists in refugee law, had put forward affidavits stating they had never known Mr Nicholson to give a positive ruling on an appeal.
He pointed out that the Cork and Dublin Refugee Legal Service had compiled statistics on his decisions, and of 131 cases Mr Nicholson decided, not one was positive. The tribunal had not offered any evidence to counter these affidavits, Mr O'Leary said.
Responding to a question from Mr Justice Butler about the overall outcomes of appeals to the tribunal, he said this was in the region of 20 to 25 per cent. He agreed with the judge when he commented these figures were an average that included the negative decisions made by Mr Nicholson.
Mr McGrath said the tribunal was not conceding these statistics, but was opposing the granting of leave for a judicial review on the ground that there was no legal basis for it.
He said there was no suggestion that the tribunal and Mr Nicholson had shown any predisposition to bias in relation to these three specific applicants. Case law suggested bias could not be deduced simply from the nature of decisions made.
"I don't think that applies to 100 per cent refusals," Mr Justice Butler commented.
"Because a person has a particularly strict interpretation of their duties does not mean they are biased," Mr McGrath said.
He said if statistics on decisions were examined in the way sought, it would have widespread implications. "This would have implications for district judges up and down the country. There is no legal authority for that. There must be something in the case itself. Once the proposition is conceded that the results of the decisions of deciders can be used in relation to bias, you are going down the road of averages, which is interference in the decision-making process."
Mr Justice Butler agreed the case was unprecedented, and granted leave for judicial review in all three cases.