OPINION:A fair asylum appeals system needs a system of checks and balances that works regardless of who is holding the chair
IN THIS newspaper in April Carol Coulter reviewed the court proceedings that have been brought against the Refugee Appeals Tribunal in which allegations of bias in the determination of asylum appeals have been prominent (“Previous cases challenged secrecy and perceived unfairness of tribunal,” Irish Times, April 11th).
The cases have gone to the Supreme Court on questions of access to information about tribunal decisions and specific allegations against a named tribunal member. History repeated itself recently with a case being brought in the High Court against a second named tribunal member who, it has been alleged, produces decisions on varied appeals in an almost identical format, suggesting that he may not be applying his mind openly to the individual case before him.
The earlier cases led to calls for the chairman of the tribunal, John Ryan, in the post since December 2003, to explain the allegations of bias, not least in the allocation of cases to tribunal members known for persistent rejection of appeals, and indeed for his resignation. But calls for the chairman to account for the exercise of powers given to him by statute or for his resignation have been misplaced when he is given such wide discretion and when statute fails to provide for such transparency.
If the legislature has chosen to allow him the freedom to choose how he allocates cases and to interpret court decisions according to his own understanding, then it could be said that the fault lies with the politicians, not a quasi-judicial official. And it leaves open the real possibility that whoever occupies that position, they will undertake it according to their own criteria.
What is needed is a system that incorporates the checks and balances that provide for a fair, transparent asylum appeals system that will work regardless of who holds the position of chair. And for that to happen, consistency and accountability in the political process is required.
In the light of the case known as Nyembo and the revelations that fellow tribunal members, including a former director of public prosecutions and former Fianna Fáil minister, had grave concerns about the conduct of the chair, Pat Rabbitte made statements calling on the then minister for justice, Brian Lenihan, to address the accusations levelled against the Refugee Appeals Tribunal.
He followed it through in lengthy and detailed debates in committee on the Immigration, Residence and Protection Bill 2008, seeking to ensure that the replacement tribunal would contain the safeguards needed to avoid a repeat of the accusations of bias.
In his response, Brian Lenihan expressed himself satisfied with the way the chair of the tribunal was fulfilling his functions, including the allocation of cases, and rejected any criticism of the independence of the tribunal.
He stated: “Since its establishment the tribunal and its members have carried out a substantial job of work for the State based on their statutory remit.” Brian Lenihan, and subsequently Dermot Ahern, presided over the Immigration, Residence and Protection Bill 2008 which contained proposals for the establishment of the Protection Review Tribunal (PRT) as a replacement for the Refugee Appeals Tribunal.
The proposed PRT has since remained a significant element of an allegedly new and better system for dealing with asylum appeals in Ireland. But the fact remains that the new tribunal will not offer the “protection” that its title suggests if the legislation retains the huge degree of discretion in the position of chair: discretion to consider publishing decisions where the chair considers them to be of legal importance; discretion to establish rules and procedures for the conduct of appeals; discretion to issue guidelines to tribunal members; discretion to issue guidance to the registrar on the allocation of appeals.
Of course, such discretion is required to be exercised in accordance with fair procedures.
In its 2011 election manifesto Fine Gael promised “comprehensive reforms” in immigration and asylum to comply “with best international standards and bring to an end the enormous waste of public funds resulting from ... expensive court actions against the State”.
This was consistent with statements made by Alan Shatter during debates on the Immigration, Residence and Protection Bill 2010 in which he said: “An aggrieved person should have a right of access to a wholly independent appeals system . . . There is a belief, based on credible evidence, that the current system has, at times, been contaminated by bias and maladministration.”
With specific reference to the proposed PRT, he stated: “Crucial to the operation of such a tribunal is the publication of its decisions, which would allow a greater understanding of the manner in which the provisions contained in the Bill are applied to individual cases.”
In the programme for government after the election in February 2011, both Government parties committed themselves to introducing comprehensive reforms of the immigration, residence and asylum systems, including a statutory appeals system and to set out rights and obligations in a transparent way.
The consistent themes throughout the principled positions of Labour and Fine Gael on immigration and asylum include independence, transparency and fairness.
In its Roadmap for Asylum Reform, launched in September 2011, the Irish Refugee Council set out the elements of an independent appeals system including independently appointed tribunal members; public hearings; clear, detailed and published procedural rules governing the preparation for and conduct of appeal hearings; and the publication of decisions.
If Labour and Fine Gael are serious about the problems they identified and the steps needed to change the system, then it is a question of whether they have the political will to see them through. The opportunity is there in the forthcoming version of the Bill.
Sue Conlan is chief executive of the Irish Refugee Council and 2012 recipient of the Captain Cathal Ryan Scholarship for social innovation and non-profit leadership