The Supreme Court has dismissed three State appeals over access to relevant previous decisions of the Refugee Appeals Tribunal, holding that refusing such access breached applicants’ rights to fair procedures and natural and constitutional justice.
In a judgment delivered on 26 July 2006, Mr Justice Geoghegan said that, where relevant decisions were reasonably requested in advance of a hearing, the Tribunal had to provide reasonable access in a form it considered suitable. The decisions did not bind Tribunal members, but could help applicants and members assess consistency in cases involving similar objective conditions. The court said the unfairness was compounded by evidence that State presenting officers had access to previous decisions while appellants did not.
The three cases concerned a Bulgarian applicant who said he feared persecution because of his sexual orientation; a Nigerian mother whose claim concerned the risk that her daughter would be subjected to circumcision and her sons to ritual markings if deported; and an applicant from Cameroon whose claim concerned forced marriage. Those matters were described as claims in the proceedings, not findings by the Supreme Court on the underlying asylum applications.
The High Court had made declarations in each case that the refusal to provide relevant decisions breached fair procedures and natural and constitutional justice. The State authorities appealed. The Supreme Court dismissed the appeals and varied the wording of the orders. It declared that the refusals were an unlawful exercise of discretion under the 2003 Act and breached the applicants’ rights under Article 40.3 of the Constitution.
The court did not require the Tribunal to establish an open library or prescribe a particular system for access. It said the Tribunal could choose the form, provided each applicant received reasonable access to decisions reasonably required for legal relevance. The court also rejected the argument that the 2003 amendment itself imposed a general mandatory duty to publish decisions, and found it unnecessary to decide arguments under the European Convention on Human Rights.
The ruling was limited to people who requested access to relevant precedents before a Tribunal hearing and were refused. It did not apply where a hearing had concluded without such a request, and concerned only Refugee Appeals Tribunal proceedings—not applications to the Minister for permission to remain in the country.