TABLE OF CONTENTS
Page
A.Letter to the Minister for Justice, Equality and Law Reform2
B.Introduction to the Tribunal 4
C.Asylum Legislation Relevant to the Tribunal 5
D.Task Statement and Critical Success Factors 7
E.Nature and Composition of the Tribunal 9
F.Appeal Operations and Support 11
G.Members of the Tribunal 15
H.Summary of the Work of the Tribunal for 2004 24
I.Contact with Other Organisations 45
J.Corporate Services 47
Appendices:
Appendix 1Legislation/ Statutory Instruments
Relevant to the Tribunal 53
Appendix 2Appeals Process: Procedures 54
Appendix 3Members Fees Structure, 2004 58
Appendix 4Summarised Agenda for
Bi-Annual Statutory Meetings, 2004 59
Mr. Michael McDowell T.D.
Minister for Justice, Equality and Law Reform
Department of Justice, Equality and Law Reform
94 St. Stephen’s Green
Dublin 2
Dear Minister,
REFUGEE APPEALS TRIBUNAL
In accordance with Paragraph 19 of the Second Schedule of the Refugee Act, 1996 (as amended), I enclose the statutory Annual Report of the Refugee Appeals Tribunal for the year ended 31 December, 2004.
I refer you, in particular, to Section 8 of the Annual Report which deals with a “Summary of the Work of the Tribunal” in 2004.
2004 was the first full year of operation since the major legislative amendment which took effect in September 2003. The main effect noticable in the Tribunal is the change in composition of appeals, with a substantial reduction in substantive appeals, and a near-corresponding increase in the number of accelerated appeals. This, in turn, resulted in a reduction in the number of scheduled hearings for the year. The most noteworthy aspect of the work of the Tribunal in 2004 was the very significant increase in the number of appeals completed, 6,520 - compared to 5,045 in 2003, an increase of nearly 30%. This was due mainly to changes in administrative procedures within the Tribunal.
Training of Members was accorded priority by me during 2004. I was happy to facilitate participation by the Tribunal in an innovative UNHCR coaching project details of which are outlined in Chapter 7.
The Tribunal is constantly reviewing procedures to streamline the appeals process. In that context, we developed and issued a number of guidance notes in 2004 relating to the delivery of decisions by Members, adjournments/postponements of hearings and the role of interpreters at hearings.
I am particularly indebted to the staff of the Tribunal, all of whom have been assigned to the Tribunal from your Department, for their dedication, hard work and efficiency in achieving so much in 2004.
I would also like to thank the Members of the Tribunal for their professional contribution to the Tribunal in 2004.
Yours sincerely,
______
John Ryan B.L
Chairperson
Refugee Appeals Tribunal
March, 2005
2. Introduction to the Tribunal
2.1 Commencement
The Refugee Appeals Tribunal (“the Tribunal”) was established on 4 October, 2000, in accordance with Sections 14 and 15 of the Refugee Act, 1996 (as amended by section 11(1) of the Immigration Act, 1999 and section 9 of the Illegal Immigrants (Trafficking) Act, 2000), to consider and decide appeals against Recommendations of the Refugee Applications Commissioner that applicants should not be declared to be refugees. The Refugee Act, 1996 was implemented on 20 November, 2000 and the work of the Tribunal commenced on that date.
Substantial amendments were made to the Refugee Act, 1996 by the Immigration Act, 2003. The changes came into effect on 15 September, 2003. A number of Statutory Instruments were also made pursuant to the new legislation. Chapter 3 gives an outline of the significant features of current legislation insofar as they affect asylum appeals.
2.2 Operational Development
As with any relatively new organisation in the asylum area, the Tribunal continues to deal with a considerable number of new issues, particularly arising from the 2003 amended legislation. This necessitates continually reviewing and adjusting appeal procedures with a view to establishing best practice, training and development of Tribunal members and staff, dealing with day to day legal issues, defending legal proceedings, redefining our key business units and their precise objectives and supporting the Members. Many administrative, policy and legal issues continue to arise. The aim is to continue to develop new strategies, as required, to implement the intention of the legislation and to continue to improve our processes and procedures.
3. Asylum LegislationRelevant to the Tribunal
The legislation which forms the basis for consideration of asylum appeals is, the Refugee Act, 1996, as amended by section 11(1) of the Immigration Act, 1999, section 9 of the Illegal Immigrants (Trafficking) Act, 2000, and section 7 of the Immigration Act, 2003. References in the Annual Report to “the Refugee Act, 1996 (as amended)”, “ the 1996 Act” or “the Act”, are to the Act so amended.
This legislation makes provision for both substantive appeals and accelerated appeals. It also provides for appeals of decisions made by the Commissioner pursuant to the Dublin 11 Regulation and Dublin Convention.
The legislation facilitates the efficient management of the Tribunal and the expeditious disposal of its business in a manner consistent with fairness.
Principal features of the legislation are-
-The Burden of Proof:
At appeals stage, the burden resides with the applicant to demonstrate that he/she is a refugee.
-Statutory credibility tests:
The Tribunal is now required, in assessing the credibility of the applicant, to have regard to specific factors set out in the amended legislation.
-Accelerated procedures:
These arise where a report of the Commissioner made pursuant to Section 13(1) includes a recommendation that an applicant should not be declared a refugee and includes any of the findings specified in Section 13(6).
-Co-operation:
The amended legislation places a statutory duty on the applicant to co-operate in the determination of his/her appeal. His/her appeal shall be deemed to be withdrawn in cases of non co-operation and/or failure to attend oral hearing without reasonable explanation, within a stated time limit.
-Implementation of Dublin II Regulation, (Council Regulation (EC) No 343/2003).
The Dublin II regulation (as well as its predecessor instrument the Dublin Convention) determines which Member State of the Dublin system is responsible for examining an asylum application.
- Safe Countries of Origin:
The Minister for Justice, Equality and Law Reform may after consultation with the Minister for Foreign Affairs by order designate a country as a safe country of origin. The Minister in accordance with the provisions of the Act has designated Bulgaria, Cyprus, Czech Republic, Estonia, Hungary, Latvia, Lithuania, Malta, Poland, Romania, Slovak Republic, Slovenia, South Africa and Croatia as safe countries of origin.
- Prioritisation of appeals:
The Minister for Justice Equality and Law Reform has directed that priority be accorded to applications made by persons who are nationals of or have a right of residence in a country designated as safe under Section 12 of the Refugee Act 1996 (as amended). The Minister has also directed that priority be accorded to applicants from Nigeria.
All legislative instruments relevant to the Tribunal are set out in Appendix 1.
4. Task Statement and Critical Success Factors
The primary function of the Tribunal is to affirm or set aside a Recommendation made by the Refugee Applications Commissioner that a person should not be given a declaration as a refugee.
4.1 Definition of a Refugee
Section 2 of the 1996 Act (as amended) defines a “refugee” as a person who, owing to a well founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his or her nationality and is unable or, owing to such fear, is unwilling to avail himself or herself of the protection of that country; or who, not having a nationality and being outside the country of his or her former habitual residence, is unable or, owing to such fear, is unwilling to return to it.
In 2004, 5,011 people appealed to the Tribunal representing 97% all appealable Recommendations made by the Refugee Applications Commissioner, compared to 93% in 2003. The Tribunal completed 6,520 cases during 2004.
4.2 Task Statement
The Tribunal’s task statement is to establish who is a “refugee” and to do so:-
fairly, in accordance with the law
with respect for the dignity of the people we meet during the process
quickly with the highest standard of professional competence
in a spirit of openness to change, as necessary, in how the appeals process is managed.
4.3Critical Success Factors
The objective of the Tribunal is to reach those asylum seekers who need and deserve international protection.
The success of the Tribunal in achieving its task depends on close management of a number of significant factors, in particular:-
1.the availability of the applicant and his/her legal representative for oral hearings
2.trained experienced and available Tribunal Members to consider and decide appeals
3.the availability of Presenting Officers from the Office of the Refugee Applications Commissioner whose Recommendations at first instance are being appealed to the Tribunal
4.the availability of interpreters to interpret at oral hearings
5.trained and experienced administrative staff
6.the scheduling of a significant number of hearings which involves a complex arrangement to ensure the attendance of Members, Presenting Officers, the applicant, legal representatives and interpreters
7.support for the preparation and issue of the Members’ Decisions.
5. Nature and Composition of the Tribunal
5.1 General
The Tribunal is a statutorily independent body created and operating under the 1996 Act and exercises a quasi-judicial function. The Tribunal consists of a Chairperson and such number of ordinary Members of the Tribunal as the Minister for Justice, Equality and Law Reform, with the consent of the Minister for Finance, considers necessary for the expeditious dispatch of the business of the Tribunal.
5.2 Chairperson
Mr John Ryan B.L, a Member of the Tribunal since 18 January 2001 was appointed Chairperson on an interim basis with effect from 3 December 2003.
5.3 Members of the Tribunal
Ordinary Members of theTribunal are appointed by the Minister under paragraph 2 of the Second Schedule of the 1996 Act, each of whom is required to have had not less than five years’ experience as a practising barrister or practising solicitor before appointment. Their appointment is on a part-time basis for a period of three years. Each Member is independent in the performance of his/her function to consider and decide appeals. A list of Members who served during 2004 is outlined in Chapter 7.
5.4 Staff of the Tribunal
In accordance with the Second Schedule of the 1996 Act, the Minister may appoint such and so many persons to be members of the staff of the Tribunal as he considers necessary to assist the Tribunal in the performance of its functions. The staff of the Tribunal receive remuneration and are subject to other conditions of service as the Minister, with the consent of the Minister for Finance, determines. Members of the staff of the Tribunal are civil servants within the meaning of the Civil Service Regulation Act, 1956. Staff are currently assigned to the Tribunal from the Department of Justice, Equality and Law Reform. The number of staff approved by the Government to be assigned to the Tribunal is 147.
On 31 December, 2004, the staff complement was 129 (see Chapter 10). The Tribunal gives priority to the training of its staff in the operation of the appeals process and also in other skills and competencies such as customer care, information technology and supervisory management.
The availability of experienced trained staff and effective managers continues to be essential to the future success of the Tribunal in their support role to the Members.
6. Appeal Operations and Support
6.1 General
The Tribunal is divided into a number of business units to enable it to carry out its functions efficiently.
Procedures on the Appeal Process are detailed in Appendix 2.
6.2Operations and Support
6.2.1 The Registry Unit
The Registry Unit is responsible for receiving, checking, recording and processing all Notices of Appeal. The Unit is also responsible for receiving, checking, recording and processing all correspondence, including correspondence from the Refugee Applications Commissioner (the
Commissioner), the United Nations High Commissioner for Refugees (“the UNHCR”), legal representatives and applicants. As appropriate, correspondence is then directed to the relevant business unit within the Tribunal. The Registry Unit ensures timely receipt of the applicants’ files from the Commissioner’s Office when an appeal is received.
6.2.2 Appeals Processing Units: Pre-Decisions and Decisions Units
These Units are responsible for the processing of all appeals against negative Recommendations of the Commissioner. The general process is divided into two discrete groups, the Pre-Decisions Unit and the Decisions Unit. The Pre-Decisions Unit arranges for the preparation of appeal case files, assignment of cases to Members by the Chairperson and also arranges the scheduling of cases for hearing, the servicing of oral hearings and the processing of correspondence and submissions. The Decisions Unit supports the Members in the recording, tracking, processing and issuing of Decisions in accordance with the Appeals Regulations.
6.2.3Co-ordination and Statistics Unit / Policy Unit
The Co-ordination and Statistics Unit is responsible for:-
establishing and managing a comprehensive statistical system to track the work of
the Tribunal and for co-ordinating activity between the Tribunal, the Commissioner and other constituent parts of the asylum system
preparing a weekly and monthly statistical report on the number of appeals received, cases assigned, decided and withdrawn
preparing a monthly report which identifies any delays in the appeals process
(d)liaising with the office of the representative of the United Nations High Commissioner for Refugees and other external governmental and non-governmental bodies, and
(e)providing briefing information on request, drafting replies to Parliamentary Questions etc.
A Time and Motion Project initiated in 2003 continued to be a priority for the Tribunal for 2004. The objective of the project is to take the “core work” of the Tribunal, that is, the processing from receipt of appeals to the issue of Decisions, in respect of three categories of appeal - Substantive, Accelerated and Dublin Convention/Regulation II - and to reduce the time taken for that “core work” to 14/16 working weeks for Substantive appeals and to 5 weeks for Accelerated and Dublin Convention/Regulation II appeals. Substantial progress has been made towards reaching these targets. This has been realised by establishing a clear link between processing procedures, the individual Units, the Members, the staff, their job specifications, objectives and performance review of issues arising. A pilot scheme for prioritising and accelerating applications from Nigeria, Romania, Bulgaria, Croatia and South Africa for which the Tribunal has set itself a target of 3 weeks to complete appeals from applicants from these countries will operate in early 2005.
The Policy Unit is mainly responsible for reviewing and developing our policy and procedures with the business objective of establishing best administrative practice in the processing of appeals. Projects undertaken by the Policy Unit during 2004 included input into the preparation of the Chairperson’s Guidance note on postponements and adjournments and the use of interpretation at hearings. The Unit also contributed to the development of the Information Management and Information Technology Strategic Plan for Asylum/Immigration referred to in Chapter 10 and the Business Analysis and Review of the Asylum, Immigration and Citizenship areas which commenced in 2004 and which will be completed in 2005. The Unit also acts as a link between the Tribunal and the other agencies involved in the processing of asylum applications.
6.2.4 Tribunal Members’ Unit
This Unit is responsible for acting as a liaison with the Members and with the other units of the Tribunal. In addition, the primary function of the Unit is to ensure that the Country of Origin information available to Members is current, objective and relevant to their caseload. It co-ordinates the day-to-day backup services for the Members which involves making all practical arrangements for the Members’ Training and Education programme, including making arrangements for their attendance at domestic and foreign Conferences, and in collating the training/educational resource materials.
Major training initiatives undertaken in 2004 by the Members’ Unit which increased significantly over the 2003 level of activity are outlined in Chapter 7.
6.2.5 Judicial Review Unit
This Unit considers the response to judicial review proceedings. It records and monitors progress of all judicial reviews, considers all legal documents received and co-ordinates a reply with the Chairperson, the Attorney General’s Office, the Chief State Solicitor’s Office and the Members.
During 2004 Judicial Review papers were filed in a total of 314 cases in which the Tribunal was a respondent and as at 31 December 2004, the Tribunal had 269 judicial review cases on hand.
6.3Unaccompanied Minors
The Tribunal, in recognition of the sensitivities surrounding the processing of appeals in respect of unaccompanied minors has prepared special procedures to deal with such appeals. These procedures are subject to change as new issues arise.
The number of Tribunal Members trained to deal with unaccompanied minors was increased to seven in 2004.
As of 31 December, 2004 there were 62 appeals from Unaccompanied Minors on hand in the Tribunal.
7. Members of the Tribunal
7.1 Introduction
The Tribunal is grouped into divisions, each of which consists of one Member. On average, seven divisions sit and hear appeals on a daily basis, four days a week. The Members of the Tribunal are part-time and the majority of them have private legal practices. The Members are appointed by the Minister for a term of 3 years and must have been a practising Barrister or Solicitor for at least five years to qualify for appointment.
7.2 List of Members
The following is an alphabetical list of the Members of the Tribunal who held office during 2004 and their date of appointment.
David Andrews S.C / 03/08/04Eamonn Barnes B.L / 20/11/03
Joseph Barnes B.L / 28/05/02
Judy Blake B.L / 20/12/04
Olive Brennan B.L / 30/04/03
Bruce St John Blake Solicitor / 28/02/02
Eamonn Cahill S.C / 20/11/03
Bernadette Cronin S.C / 23/11/03
Samantha Cruess Callaghan B.L / 10/03/04
Sean Deegan B.L / 20/12/04
Ricardo Dourado / 12/01/04
Aidan Eames Solicitor / 20/11/03
Donal Egan B.L / 20/11/03
Ben Garvey, B.L / 26/09/04
John Hayes Solicitor / 14/03/02
Patrick Hurley Solicitor / 20/11/03
Mary E Laverty S.C / 12/01/04
Margaret Levey B.L / 10/06/04
Denis Linehan Solicitor / 11/03/02
Rory MacCabe S.C / 31/07/04
Bernard Mc Cabe / 12/01/04
Sunniva McDonagh B.L / 20/11/03
Paul McGarry B.L / 29/01/02
David McHugh B.L / 12/01/04
Declan McHugh B.L / 10/10/04
Con Murphy Solicitor / 23/02/04
Jim Nicholson B.L / 20/11/03
Susan Nolan Solicitor / 08/03/04
Elizabeth O Brien B.L / 12/01/04
Michelle O Gorman B.L / 17/07/04
Michael O Kennedy S.C / 05/06/02
Doreen Shivnen B.L / 23/01/04
Anne Tait Solicitor / 14/03/02
Noel Whelan B.L / 20/12/04
Des Zaiden B.L / 20/11/03
Mr Con Murphy resigned from the Tribunal in 2004 following his appointment as a Judge of the Circuit Court.