The Supreme Court allowed appeals by officials in two judicial review cases and dismissed the applications brought by Grace Edobor and Abdenour Messaoudi. It held that the chairperson of the Refugee Appeals Tribunal had power to reassign their appeals after the original member failed to issue decisions within a reasonable time.
Both applicants had oral hearings before Tribunal member Joseph Barnes in 2003. By March 2004, he had not decided either appeal. The judgment said he had also heard many other refugee appeals without issuing decisions, prompting concern from the Refugee Legal Service and the Tribunal chairperson.
The chairperson reassigned the cases for new hearings, citing the elapsed time and the likelihood that Barnes could not issue decisions within an acceptable timeframe. The High Court found that Barnes had been in breach of duty before reassignment because a reasonable period had expired. It also quashed the reassignment decisions and ordered Barnes to decide the appeals.
On appeal, Justice Fennelly agreed that the Tribunal had a duty to decide appeals and that the delay had amounted to a breach before the reassignment. But he rejected the view that reassignment after an oral hearing was permitted only if the original member was physically or mentally unable to decide, or legally unable to issue a valid decision.
The Supreme Court held that the chairperson had a general power under paragraph 13 of the Second Schedule to the Refugee Act 1996 to assign and reassign cases. That power had to be exercised fairly and consistently with natural and constitutional justice, and an unfair or capricious decision could be challenged by judicial review.
The Court found no basis to quash these reassignments. The chairperson had acted amid a serious backlog and had considered the Tribunal’s obligation to dispose of appeals expeditiously, consistently with fairness. The Court noted that cases were not reassigned where the delay was only six months or Barnes had substantially completed a decision. It allowed the officials’ appeals and dismissed both judicial review applications. The judgment did not decide the underlying refugee appeals.