CASE ANALYSIS : Y.A-E v Minister for Justice (7th May 2013, HC, Mr Justice Mac Eochaidh)

DECISION MAKING PROCESS RAT

In this decision in the High Court, Mr. Justice Mac Eochaidh held that s16(16) of the Refugee Act, which sets out the matters which the Refugee Appeals Tribunal (RAT) must consider when making a decision on an appeal, is not an exhaustive list. It was also held that, where a RAT decision is remitted, the applicant may have to be notified that the RAT may remove documents from the file.

The case involved a Sudanese national from the Darfur region who first applied for asylum in Ireland in 2004. At the centre of this case was the failure of the RAT to take into account a language analysis report which supported the applicants claim for asylum. In light of the failure to take this information into account the applicant’s case was remitted to the RAT for a new decision, however the RAT removed the language analysis report from the applicant’s file. The legality of the removal of this information from the applicant’s file was challenged.

The Minister and the RAT argued that the applicant’s challenge was unfounded on two grounds. First, it was argued that the RAT was entitled to remove documents from an applicant’s file following a remittal in order to “cleanse” the file of any possible bias or prejudiced information which may have been included in the file by the previous Tribunal Member. Secondly it was submitted that s16(16) of the Refugee Act 1996, which sets out the matters to which the RAT must consider in making a decision, does not include reports obtained by the RAT under s16(6) of the same act and therefore the RAT had no obligation to consider the language analysis report.

Mac Eochaidh J upheld the applicant’s complaint and remitted the decision to be considered by the RAT again. He ordered the inclusion of the language analysis report in the applicant’s file. The decision was based on the following grounds:

1. The Court held that the RAT is entitled, in principle, to remove documents from an applicant’s file when the decision is being remitted. This applies regardless of whether the case is remitted following the quashing of a RAT decision by the court or on a more informal basis (for example upon agreement of the parties). However in this case it was held that the removal of the document in question, the language analysis report, led to a significant injustice. The judge held that the applicant was entitled to presume that the report would be considered in the new appeal in light of the fact that the applicant’s case was remitted because of the failure of the RAT to consider the report in the first place. Furthermore it was noted that the applicant was not aware of the ‘cleansing’ policy of the RAT. He therefore had no opportunity to apply to the court to ensure that the document was considered in the new appeal which led to the RAT making a decision without considering a crucial piece of evidence.
   
2. The court held that the list of matters that the RAT must consider in s16(16) of the Refugee Law Act 1996 was not exhaustive. Therefore the RAT is not precluded from considering a document obtained by the exercise of its s16(6) powers and, in certain circumstances, may be even be obliged to consider matters not listed in s16(16). The Court noted that the RAT can only use s16(6) to request extra information from the Refugee Commissioner when it considers the information necessary for it to enquire whether a person is a refugee. The court reasoned that to interpret s16(16) in such a way that the RAT could not consider information which had been deemed necessary to assess an applicant’s refugee status would ‘make a nonsense’ of s16(6). 

It is also worth noting the strong criticism of Mac Eochaidh J at the end of his judgment where he noted that the excessive delay of 10 years in this case could be considered a significant injustice, regardless of the fact that the delay was not caused by a deliberate act of any person or body.

Brophy Solicitors