The Supreme Court dismissed an appeal against High Court orders requiring a Refugee Appeals Tribunal member to decide two refugee appeals he had heard and quashing their reassignment to other tribunal members.
In a judgment delivered on 16 March 2005, Mr Justice Kearns said the appeals had been assigned to Joseph Barnes, who held oral hearings in March and May 2003. Neither applicant had received a decision. The Tribunal chairperson later reassigned the cases, citing delays in decisions by Mr Barnes.
The applicants had sought orders of mandamus requiring Mr Barnes to issue decisions, and certiorari quashing the chairperson’s reassignment decisions. The High Court granted both remedies on 29 July 2004. The chairperson and other respondents appealed. The Supreme Court dismissed the appeal, leaving the High Court orders in place.
The judgment recounted that Grace Edobor, a Nigerian national, claimed she faced pressure from her uncle to have an abortion and feared persecution if returned to Nigeria. She also said her daughter could face female genital mutilation. Abdenour Messaoudi, an Algerian national, had appealed a recommendation that he not receive refugee status. These were claims and procedural background described in the judgment; the Supreme Court was deciding the reassignment and delay issues, not the underlying refugee claims.
The court said the law required certain refugee appeals to be dealt with “as soon as may be”. It also held that once an appeal was assigned to a tribunal member, the member had a duty to determine it, and the Tribunal’s independence constrained the chairperson’s power to remove a case already heard.
The court accepted that reassignment could be implied in limited circumstances, such as where a member was physically or mentally unable to decide, or legally unable to issue a valid decision. It found no evidence that either circumstance applied. Nor had relevant evidence supporting a broader reassignment power been put before the High Court. On that record, the reassignments were ultra vires.
The judgment noted that by seeking mandamus, the applicants could not also raise delay as an objection to further consideration by Mr Barnes. It did not determine the refugee appeals themselves or make findings on the applicants’ protection claims.