The High Court has quashed two Refugee Appeals Tribunal decisions rejecting asylum appeals brought by a married couple, finding that the procedure was unfair because material relied on by the tribunal member had not been put to their legal representatives for comment.
Mr Justice Cooke made the order on 11 May 2010. The applicants, identified in the judgment as P.S. and L.S., had sought judicial review of decisions dated 12 September 2007. The tribunal had rejected appeals against negative recommendations on their asylum applications.
The first applicant, who had served in the Israeli Defence Forces, said he witnessed a civilian being killed while on reserve duty in 2005. He described psychological effects and later refused military service, relying on a psychiatrist’s report. He was detained for 14 days and received a suspended sentence. He and his wife, who is from Ukraine, came to Ireland with their child in October 2006 and applied for asylum. The judgment records their claims and the earlier decision; it does not make findings that the underlying allegations were true.
The tribunal member rejected the appeals, reasoning that the first applicant was a “partial” rather than “genuine” or “absolute” conscientious objector. The member also considered that he could have sought a medical exemption, known as a “Profile 21” or “White Ticket”, and could have pursued assistance or remedies in Israel. The couple had waived an oral hearing, on the stated understanding that the facts were not in dispute and the issue was whether those facts met the refugee definition.
The High Court held that the tribunal member’s earlier decision, which was incorporated into the contested decision, contained substantial material about conditions and remedies in Israel. That material formed a factual basis for conclusions about exemptions and avenues available to objectors. Because the applicants’ representatives had not been given the earlier decision or an opportunity to address that material, the court found that the procedure was unfair in this case.
The court stressed that this does not create a general duty to give advance notice of every proposed finding in appeals without an oral hearing. It said such a duty may arise where a decision relies on significant factual material the applicant could not be expected to know, or on a legal finding not previously raised in the asylum process.
The court did not decide the remaining grounds for review, including the legal arguments about political opinion and military service. It said those matters should be left to the Tribunal on a fresh determination, which may also take account of intervening changes in country conditions. An order of certiorari quashed both appeal decisions; the court did not itself grant refugee status or determine the asylum claims.