The Supreme Court has allowed Richard Nyembo’s appeal against an order to decide legal questions in his judicial review case before hearing the underlying evidence, and remitted the case to the High Court.
The appeal concerned the High Court’s decision to set preliminary issues about whether statistics on a Refugee Appeals Tribunal member’s decisions were admissible and whether outcome statistics alone could establish actual or apparent bias. The Supreme Court did not answer those questions or decide whether the member was biased.
Nyembo’s judicial review challenges the assignment of his refugee appeal to the tribunal member, James Nicholson. The judgment records that Nyembo feared serious injury or death if returned to the Democratic Republic of Congo. He sought orders preventing Nicholson from hearing his appeal and requiring the tribunal to assign another member.
The High Court had granted leave for judicial review on grounds that included claims about the member’s record in oral hearings and advice reportedly given by solicitors. At the leave stage, the judge said he was not granting leave on statistics alone, but considered that the case went beyond statistical analysis. Those were grounds for allowing the challenge to proceed, not findings that bias had occurred.
The respondents’ statement of opposition said Nicholson’s record was not at variance with other tribunal members. The Supreme Court noted that the respondents had filed no affidavit evidence supporting that assertion, and described the facts as being in stark conflict. It also noted that the facts had not been agreed, including for the proposed preliminary issues.
The Court said a preliminary issue is unsuitable where relevant facts are disputed and further factual information is needed. It concluded that deciding the legal questions in those circumstances was not appropriate, practical or convenient. The Court made no decision on which procedural rule should govern preliminary issues in the case. It allowed the appeal and remitted the proceedings to the High Court; the judgment does not determine the underlying bias claim or state the eventual outcome of the judicial review.