The High Court has ordered an early hearing of two legal questions in Richard Nyembo’s judicial review concerning the Refugee Appeals Tribunal. The questions concern whether statistics about a tribunal member’s decisions are admissible and whether decision-outcome statistics alone can support a finding of actual or apparent bias.
In a judgment delivered on 6 October 2006, Mr Justice Feeney considered an application to determine preliminary issues of law before the full hearing. James Nicholson was named as the moving party. The court said such a procedure can save time and costs, particularly where deciding an issue for the respondent could end or substantially narrow the applicant’s case. It also cautioned that preliminary issues should not be tried where answering them requires unresolved facts or evidence.
For this application, the moving party accepted facts set out in a respondent solicitor’s letter of 28 June 2006. During the application, counsel for the respondents extended those accepted facts to include that, during the relevant period, the second respondent “heard hundreds of appeals”. The judgment does not set out the full letter or identify the second respondent by name. It notes that other claims, including matters concerning practitioners’ beliefs, remained disputed.
Justice Feeney concluded that the accepted facts were sufficient to address the proposed legal questions without further evidence. He said the questions could clarify the scope of the case and potentially reduce the need for discovery. The proposed discovery was also connected to a separate Supreme Court appeal in the Popovici case, which the judgment said could otherwise delay progress.
The two questions ordered for preliminary determination are whether statistical evidence about outcomes of decisions made by the second respondent as a Refugee Appeals Tribunal member is admissible, and whether statistics or other evidence about tribunal decision outcomes can, without more, constitute a basis for finding actual or apparent bias.
The court permitted those issues to be tried on the extended accepted facts. It did not answer either question, make a finding of bias, or determine the judicial review claim. The judgment records the order for a preliminary trial; it does not report the result of that later hearing.