The Supreme Court has cleared the way for the High Court to examine statistics relating to refugee appeal hearings.
The ruling by the Supreme Court relates to proceedings before the High Court in which allegations of bias have been made about a member of the Refugee Appeals Tribunal, James Nicholson.
It is alleged he is biased against persons appealing against a refusal of refugee status. It has been claimed that Mr Nicholson has heard up to 1,000 cases and has a 100 per cent refusal record.
The three-judge Supreme Court yesterday rejected arguments by the tribunal and Mr Nicholson that, prior to the hearing of the claims of bias against Mr Nicholson by a Congolese man in judicial proceedings, the High Court should decide whether statistics on previous decisions can ever be the basis for a finding of bias on the part of a decision-maker.
The tribunal had argued there was no legal basis for the judicial review challenge.
Giving the court's judgment, Ms Justice Susan Denham said the court would allow an appeal by Richard Nyembo, from the Democratic Republic of Congo but now living in Cork, against a High Court decision that those issues should be decided prior to his judicial proceedings against the tribunal and Mr Nicholson.
Mr Nyembo is seeking orders restraining Mr Nicholson hearing his appeal and/or requiring the tribunal to reassign his appeal to another member. Two other asylum seekers have brought similar challenges.
Among the grounds for leave to bring Mr Nyembo's challenge was a claim that statistics available to Mr Nyembo, as compiled by one of the main practitioners in refugee law, led to the conclusion that an appellant had no prospect of success when they appeared before Mr Nicholson.
Another ground was that Mr Nyembo had been advised by legal practitioners working in refugee law that Mr Nicholson had never found in favour of an appellant.
Ms Justice Denham noted that, in October 2006, Mr Justice Kevin Feeney granted an application by the tribunal and Mr Nicholson that, prior to the hearing of Mr Nyembo's challenge, the High Court should decide two issues of law as to whether statistical evidence on decisions by Mr Nicholson was admissible in evidence and whether such statistics could constitute a basis for a finding of bias.
Mr Justice Feeney did so on the basis there were "agreed facts" to the effect that, between January 1st, 2002, and June 30th, 2004, Mr Nicholson had not allowed any appeal and had heard "hundreds of appeals" during that time.
Mr Nyembo appealed Mr Justice Feeney's ruling on the basis there were contested facts. He argued the conceded facts by the tribunal fell short of his claim that Mr Nicholson has determined between 900 and 1,000 cases in the years 2002, 2003 and 2004, and that solicitors experienced in refugee law felt it necessary to "warn" clients about Mr Nicholson.
Ms Justice Denham said the respondents had argued that the record of Mr Nicholson was not at variance with other members of the tribunal, but had not advanced affidavit evidence vindicating that assertion.
It was well-established law that where there was no agreement on the facts, and where, as in this case, facts were not conceded for the purpose of a preliminary issue, it was neither appropriate nor convenient to have preliminary issues of law determined.
She returned the case to the High Court.
