ANALYSIS:THE LATEST chapter in the saga of internal strife in the Refugee Appeals Tribunal began with an editorial in The Irish Times last June, following the delivery of a judgment by the Supreme Court in the Nyembocase, writes Carol Coulter, Legal Affairs Editor
This cleared the way for the production of statistics on individual tribunal members' records in dealing with appeals, as part of demonstrating how Jim Nicholson's record of rejecting virtually all the almost 1,000 appeals he heard during his term of office compared with the record of others.
It is the responsibility of the chairman of the tribunal, who is John Ryan, to allocate cases to members.
In the editorial, The Irish Times stated: "The Supreme Court has cleared the way for an examination by the High Court of allegations of bias against a member of the Refugee Appeals Tribunal and, by implication, against the tribunal itself."
Following this, a number of senior members of the tribunal approached the chairman asking for a meeting of its members to discuss the issue and its implications for the tribunal as a whole. He refused. Former minister Michael O'Kennedy then formally wrote to him seeking a meeting to consider the implications of the judgment.
No such meeting was called, so another senior member, Donal Egan, wrote to all members convening a meeting, which took place on July 11th last attended by about half its 33 members. A number of those present agreed that they wanted to become notice parties in the Nyembo case, now referred back to the High Court, in order to present an alternative view to the chairman's. A former member of the tribunal, solicitor Adrian Eames, who had recently resigned, was asked to act for Mr O'Kennedy, Mr Egan and Mr Barnes, who all agreed to be named in the case.
A letter was drawn up which detailed the many grievances which certain members of the tribunal had had for a number of years, including its refusal to publish its decisions or make them available to those representing applicants, and allegations that work was being allocated by the chairman on the basis of members' record of rejecting appeals. This allegation was central to the information sought in the Nyembo case.
It is an allegation that has been strenuously denied by Mr Ryan at a number of tribunal meetings where the matter has been raised.
The letter stated: "The legal strategy being adopted in these proceedings conveys the impression that the tribunal needs to hide and conceal the manner in which it does its business. The tribunal also continues to proceed in this manner without any consultation with its members, without seeking their approval, and without even affording the courtesy of an explanation to them as to why this course of action is being relentlessly pursued."
It continued: "There is a widespread and increasingly public perception that cases have been allocated to members of the tribunal on the basis of their history of adjudication . . . It is clearly in the public interest that a system is in place which allocates cases to the members of the tribunal which is transparent, accountable and demonstrably severs any nexus between the assignment of cases to the members of the tribunal and their individual history of adjudication."
The letter concluded by asking that the statement from the chairman to the Supreme Court that Mr Nicholson's record was "not at variance" with that of other members be withdrawn, and seeking certain changes in how the tribunal ran its business.
These included the adoption of "a new, transparent and accountable system . . . [for] the allocation of cases to members of the tribunal. This system must be structured in such a manner as to remove any doubt that the history of adjudication of a member of the tribunal has any bearing, relevance or connection to the assignment of cases to that member." The three members also asked for a fixed calendar and programme for meetings of members of the tribunal, with their regularity and content determined by majority consensus.
If these conditions were not met, the letter stated, the three would have no alternative but to ask to be joined as notice parties to the Nyembo action, and would, at the conclusion of the proceedings, resign from the tribunal.
The chairman responded by stating that the members of the tribunal were not being sued in the Nyembo case either individually or collectively, and that the chairman and the member concerned were giving instructions to their legal representatives in the case. "The legal strategy to be adopted in the case is, as is common with other cases, a confidential matter between lawyer and client and must remain so."
He said that other issues raised were "totally irrelevant to the case now before the courts."
The Nyembo case was then settled, so the matters which the three members wished to raise in court could not be aired. Mr O'Kennedy summed up their frustration: "There is no professional harmony in the tribunal. It is very regrettable. Something is amiss in the tribunal collectively."