The High Court has granted two Croatian applicants leave to seek judicial review over the handling of their refugee appeals, after a tribunal member initially decided he would not view a video submitted by the applicants’ solicitors.
The ruling, delivered by Ms Justice Finlay Geoghegan on 14 April 2005, concerns the permission stage of judicial review proceedings. The court did not determine the applicants’ refugee claims or make a final ruling that the tribunal member was biased. It granted leave to challenge his role in hearing the appeals and permitted an additional ground of objective bias to be added.
The applicants, who are of Serb ethnicity, arrived in Ireland in February 2002 and applied for refugee status. Their claims were refused by the Refugee Applications Commissioner and they appealed. A tribunal member, Mr Egan, heard the appeals in May 2003. The tribunal later recommended refusal of refugee status.
In earlier judicial review proceedings, the applicants challenged, among other matters, Mr Egan’s alleged failure to view a video about the situation of ethnic Serbs in Croatia. Those proceedings were settled by consent in March 2004: the tribunal decisions were vacated and the appeals remitted for new oral hearings. The judge found there was no evidence that the settlement included an agreement that the video would be viewed.
The rehearings were assigned to Mr James Nicholson. The applicants’ solicitors sent the tribunal a version of the video with English subtitles and asked for facilities to show it at the hearing. Tribunal correspondence indicated that Mr Nicholson did not wish to view it. An affidavit later said he intended to hear the evidence first and then decide whether to view the video. The judge noted that the applicants had not been told that position in writing and that no affidavit had been provided by Mr Nicholson or the officials involved in the communications.
The judge found substantial grounds to argue that, in light of Mr Nicholson’s initial decision, the appeals should be heard by a tribunal member who had not already decided against viewing the video. She stressed that simply hearing the evidence before deciding whether to view it would not, on its own, establish grounds for a fair-procedures challenge.
The court granted leave on specified grounds, as amended, including fair procedures, alleged prejudgment of whether to view the video, and objective bias. The ruling was not a final determination of those claims; it allowed the applicants to pursue them in judicial review.