Critics will welcome the Refugee Appeals Tribunal's end, writes Carol Coulter, Legal Affairs Correspondent.
In all the hype surrounding the publication of the scheme of a Bill on immigration and asylum, one measure slipped through virtually unnoticed. This was the proposal to abolish the Refugee Appeals Tribunal and replace it with a new body, to be called the Protection Review Tribunal.
The Office of the Refugee Applications Commissioner (ORAC) is also to come to a formal end, and is to be incorporated into a new Irish Naturalisation and Immigration Service. The Minister for Justice took the opportunity to pay tribute to the ORAC and praise the expertise it would bring to the new body.
No such tribute was paid to the tribunal. Instead he said there would be provisions whereby the new body that would replace it would "increase consistency of decision-making", as well as providing for full-time members of the new tribunal.
This is an implicit acknowledgment of the legitimacy of one of the main criticisms that has been levelled at the tribunal by those working in the area and indeed by some of its members - that there is considerable inconsistency in its decisions, which is clearly unfair to those appearing before it.
The problem of inconsistency has been highlighted by the Refugee Legal Service, which represents the majority of asylum-seekers presenting appeals to the tribunal. It has claimed repeatedly that the likely outcome of a case depends more on the identity of the person hearing it than on the facts of the case.
As a result, the number of judicial reviews of decisions of the tribunal has spiralled in recent years, notably since the present chairman, John Ryan, took over from his predecessor, PJ Farrell.
One of the judicial reviews centred on a core policy of Mr Ryan, not to publish decisions of the tribunal. This meant that no independent body could examine the consistency of decisions. This was challenged in the High Court last year, and Mr Justice McMenamin found against the tribunal, which appealed to the Supreme Court.
Last July the Supreme Court gave its decision upholding that of the High Court. Mr Justice MacMenamin commented that he "would have assumed" that fair procedures "would have required access to and reference to previous decisions in the interest of consistency in treatment and application of the law". In the meantime the tribunal had begun to publish decisions it selected itself.
As well as the issue of consistency, there has also been widespread concern in the legal community about the absence of statistics on decisions by different members, the number of judicial reviews taken against particular members of the tribunal, the vastly different amounts of money earned by the different members, and allegations, which have been strongly rejected by the chairman, that work is allocated to members on the basis of their record in allowing or rejecting appeals.
This last allegation surfaced at a meeting of members of the tribunal late last October, the first of the two statutory meetings meant to take place every year. A number of tribunal members had been seeking such a meeting for some time, as they wished to discuss statistics and other issues relating to consistency in decision-making among the various members.
An unofficial memorandum of that meeting has been seen by The Irish Times. According to this memorandum, the chairman stated he formally refused to discuss the matter of his not assigning work in an equitable manner.
"He stated that assigning work is a difficult matter, due to unavailability," according to this memorandum. "He said he was entitled to assign countries to particular persons with special expertise."
He also said that some members were "backlogged".
A very senior member of the tribunal with a distinguished legal background asked what was the problem with issuing statistics if it was all completely above board. Another, younger member of the tribunal asked the chairman if he was allocating work to members fairly, and he replied that it was not a yes or no question, repeating that different people specialised in different countries.
Yet another senior member of the tribunal pointed out that the previous chairman had published statistics, and also said that it was not the role of the tribunal to act in accordance with the wishes of the executive. He claimed that the highest allocation of work went to people who affirmed the decisions of the Refugee Applications Commissioner the most.
The meeting has been described by various members of the tribunal as "chaos". Brief minutes prepared by the chairman were not agreed at a later meeting, and The Irish Times understands that there are still no agreed minutes of this meeting, 10 months later. A vote was taken at the meeting that statistics should be provided, but no comprehensive statistics are yet being made available to members.
According to long-standing members of the tribunal, the previous chairman, Mr Farrell, fostered consistency and collegiality by publishing statistics on a monthly basis, where individual members could check their set-aside (allowing the appeal) rates by comparison with those of others, identified only as Member A or Member B.
Statistics were also given by Mr Farrell of judicial reviews taken against the tribunal, though these were much fewer than they have become in recent years, having multiplied more than 10-fold. When Mr Ryan became chairman he immediately ceased making statistics available to members. There was also some unease about the allocation of work.
This crystallised last summer when The Irish Times published figures showing the earnings of different members of the tribunal, obtained from the tribunal itself. These showed a huge disparity between the highest and lowest earners, with one member earning 10 per cent of the total earned by the 33 members.
The suspicion was voiced that work was being allocated in accordance with the rate of affirmation of ORAC decisions, though this has been denied.
In July 2005 the post of chairman of the tribunal was advertised. John Ryan was interim chairman. Two members of the tribunal wrote to the Minister for Justice, Michael McDowell, at that time expressing concern about the proper functioning of the tribunal, its credibility and good name.
"We believe that this credibility and good name may be called in question, unless the arrangements made for the functioning of the tribunal, in the future, by whoever may be appointed by you to be chairperson, properly reflect the collective rights, responsibilities and legitimate interests of the tribunal as a whole," they wrote.
They referred to the disparity in income among the members, adding: "If certain members were to be deliberately assigned work by the chairperson in a disproportionate manner to other members equally available to be scheduled for appeal hearings, then it would seem that the chairperson's functions were not being exercised in the appropriate statutory manner."
In reply the Minister said he noted the issues they had raised, adding: "I believe that the chairperson is carrying out his functions in according with his statutory and contractual obligations."
He went on to appoint Mr Ryan as chairman.
Relations within the tribunal continued to be tense, leading to the October meeting. This was followed by the resignation of two highly respected members of the tribunal, Doreen Shivnen and Sunniva McDonagh.
In his reply to the resignation letter, the Minister said: "I am satisfied that Mr Ryan had dealt with the points made by you in relation to your resignation and I accept that he is carrying out his functions in accordance with his understanding of his statutory and contractual obligations." (Irish Times emphasis)
This differed significantly from his earlier letter, in that the Minister had inserted the words "his understanding of" into his reference to Mr Ryan's statutory obligations.
The Irish Times asked the Minister to state whether his understanding of Mr Ryan's statutory obligations was the same as that of the chairman, but he has, at the time of going to press, declined to answer.
An Irish Times Freedom of Information Act request for correspondence relating to the qualities required by a chairman of the tribunal, prior to the appointment of Mr Ryan, has not been met despite the payment of a substantial fee by The Irish Times four months ago.
The Irish Times also sent in a number of written questions to Mr Ryan at the beginning of July. These included asking the basis on which work was allocated, the reason why statistics were not provided, even to members, and whether there was any relationship between the allocation of work and the decisions made by tribunal members.
An official sent the written response: "The chairman has asked me to reply that the Refugee Appeals Tribunal is statutorily independent and that he is carrying out his functions in accordance with his statutory obligations under the Refugee Act 1996."
The Minister did not provide The Irish Times with any reply to its queries concerning the tribunal. However, the proposal to replace it with another body is, in itself, a reply.