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Cite as: [2005] IEHC 237

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    Neutral citation no. 2005 IEHC 237

    THE HIGH COURT
    JUDICIAL REVIEW

    [2004 No. 572 JR]

    IN THE MATTER OF THE REFUGEE ACT, 1996 AND THE IMMIGRATION ACT, 1999

    BETWEEN

    P. P. A.
    APPLICANT
    AND
    REFUGEE APPEALS TRIBUNAL (TRIBUNAL MEMBER, AIDAN EAMES), CHAIRMAN OF THE REFUGEE APPEALS TRIBUNAL AND MINISTER FOR JUSTICE EQUALITY AND LAW REFORM
    RESPONDENTS
    THE HIGH COURT
    JUDICIAL REVIEW

    [2005 No. 14 JR]

    BETWEEN

    M. N. F.
    APPLICANT
    AND
    THE REFUGEE APPEALS TRIBUNAL IRELAND AND THE ATTORNEY GENERAL
    RESPONDENTS
    AND
    HUMAN RIGHTS COMMISSION
    NOTICE PARTY
    THE HIGH COURT
    JUDICIAL REVIEW

    [2004 No. 1087 JR]

    BETWEEN

    M. A. O. AND B. A. O. (A MINOR SUING BY HER MOTHER AND NEXT FRIEND M. A. O.) AND O. A. O. (A MINOR SUING BY HER MOTHER AND NEXT FRIEND M. A. O.) AND O. A. O. (A MINOR SUING BY HER MOTHER AND NEXT FRIEND M. A. O.) AND E. A. O. (A MINOR SUING BY HER MOTHER AND NEXT FRIEND M. A. O.)
    APPLICANTS
    AND
    THE REFUGEE APPEALS TRIBUNAL IRELAND AND THE ATTORNEY GENERAL
    RESPONDENTS
    AND
    HUMAN RIGHTS COMMISSION
    NOTICE PARTY

    JUDGMENT of Mr. Justice John MacMenamin dated the 7th day of July, 2005

    These three judicial review proceedings were heard together by agreement of the parties on the 12th and 13th of May, 2005. They raise the same point, that is the entitlement of applicants seeking asylum in this jurisdiction to certain previous determinations made by the Refugee Appeals Tribunal. Such records and reports, they contend, would be of assistance to them in making their claim for refugee status.

    The applicant in the first proceedings

    The applicant, P. P. A., is a Bulgarian national. He arrived in Ireland on 24th March, 2000. He applied for refugee status on 27th March of that year. He completed an application for a "refugee status questionnaire" and submitted it on 30th March, 2000.

    He asserts that he fled Bulgaria in fear of persecution and discrimination amounting to persecution by reason of sexual orientation and his membership of a particular social group comprising homosexuals in Bulgaria. He states that he had a relationship with a man whom he met in university whose family had political connections. This family disapproved in the strongest possible terms of the applicant's relationship with their son. They allegedly mounted an orchestrated campaign of attacks and violence against him and engaged in harassment of the applicant's sister. The applicant says he suffered significant injuries as a result of these attacks and was hospitalised on more than one occasion. He made complaints, both oral and written, to the police but received no adequate or appropriate protection. He asserts on this basis that the State of Bulgaria does not provide appropriate protection to members of his particular social group and that there is significant discrimination against homosexuals in Bulgarian society.

    The applicant in the second proceedings

    The applicant in the second named proceedings, M. N. F., is a national of Cameroon. Her date of birth is 6th April, 1984. She states that on or about 20th July, 2002, she arrived in Ireland and claimed asylum. She further states that on 1st August, 2002, she completed an "asylum application questionnaire". On 11th November, 2002, she was interviewed as part of that procedure, and on 9th December of that year a report under s. 7 of the Refugee Act, 1996 was prepared. On 11th December, 2002, a report under s. 13 of the Refugee Act was submitted. On 17th December, 2002 a recommendation was made pursuant to these reports to refuse her application.

    The applicant states that when she was fifteen years of age she was forced to marry a man she named as the chief of a village in Cameroon. She states that following her marriage this man raped her on several occasions. She contends that the chief's first wife whom she named, lived with her and acted as her mother. She states arrangements were made for the applicant to leave the village on 24th December, 2001, in the company of that woman and the chief's son. She claims that she lived with the chief's son in a different town in the Cameroon until moving in with her current partner. She asserts that she left this town in Cameroon on 11th July, 2001, and moved to Nigeria with her partner because the chief's son told her that the chief had discovered her whereabouts. Thereafter she arrived in Ireland having been accompanied by an unidentified man, whom she states, provided her with travel documents. On her arrival however she did not have any such documents in her possession.

    The applicants in the third proceedings

    The applicants in the third set of proceedings are all Nigerian nationals. The first-named applicant is a widow born on 13th November, 1964. She has five children, all of whom are minors. All but the youngest of the children are applicants herein. She is a widow. She avers that her husband and one of her sons died in an aeroplane crash in Nigeria on 4th May, 2002. Her youngest child Elisha was born on 3rd September, 2002, and is an Irish citizen. She states that on arrival in the State she had applied for asylum. When her youngest child was born she understood, she contends, that she could apply for residency in the State for herself and her children on the basis of her youngest child's citizenship. She thus withdrew her application for asylum and applied for residency in September, 2002.

    The Issues

    It will be seen at the conclusion of this judgment that certain issues arise in this claim regarding the sequence of events which took place at and after the point when each of the applicants initiated their respective claims for asylum. These issues concern the respective status of the applicants and their entitlement to assert or rely on any legal or constitutional rights which may be found applicable.

    While the applicants all seek a substantial number of reliefs in the course of judicial review proceedings proper, the matter which fell for determination in this hearing relates to the refusal by the Refugee Appeals Tribunal to grant access to the applicants and their legal advisors to previous decisions or recommendations which, they contend, have a bearing upon, or are relevant or material decisions relating to their applications before that body.

    In each of the cases the Refugee Appeals Tribunal has declined to furnish the applicants with copies of the decisions sought on the basis that there is no such mandatory requirement under statute or otherwise. No other reason has been provided for these decisions.

    Relevant legislation

    In order to place these applications in context, it is necessary first to refer to the relevant legislation and where necessary the grounds of opposition raised by the respondents. It will be convenient to do so under a number of subheadings.

    Confidentiality and Publication of Decisions

    The respondents state that there is no obligation to provide the decisions sought by reason of confidentiality.

    This issue is provided for under s. 19 of the Refugee Act, 1996 (as amended), as follows:

    "Protection of identity of applicants.
    19.-(1) The Commissioner, the Board, the Tribunal, the Minister, the
    Minister for Foreign Affairs and their respective officers shall take all practicable steps to ensure that the identity of applicants is kept confidential.
    (2) Subject to sections 9 (15) and 26, no matter likely to lead members of the public to identify a person as an applicant under this Act shall be published in a written publication available to the public or be broadcast without the consent of that person and the consent of the Minister (which shall not be unreasonably withheld).
    (3) If any matter is published or broadcast in contravention of subsection (2), the following persons, namely -
    (a) in the case of a publication in a newspaper or periodical, any proprietor, an editor and any publisher of the newspaper or periodical,
    (b) in the case of any other publication, the person who publishes it, and
    (c) in the case of matter broadcast, any person who transmits or provides the programme in which the broadcast is made and any person having functions in relation to the programme corresponding to those of the editor of a newspaper, shall be guilty of an offence and shall be liable on summary conviction to a fine not exceeding £1,500 or to imprisonment for a term not exceeding 12 months or to both.
    (4) Where a person is charged with an offence under subsection (3) it shall be a defence to prove that at the time of the alleged offence he or she was not aware, and neither suspected nor had reason to suspect, that the publication or broadcast in question was of such matter as is mentioned in subsection (2).

    The Chairman's discretion

    Section 19 (4A) provides:

    "(4A)(a) The chairperson of the Tribunal may, at his or her discretion, decide not to publish (other than to the persons referred to in Section 16(17)) a decision of the Tribunal which in his or her opinion is not of legal importance.
    (b) Any decision published shall exclude any matters which would tend to identify a person as an applicant under the Act or otherwise breach the requirement that the identity of applicants be kept confidential."

    Subsection 2 of s. 19 was inserted in that Act by s. 7(k) of the Immigration Act, 2003. Subsection 4(a) was similarly inserted by s. 7(k)(2) of the same Act.

    It will be seen that that subs. 4(A) (a) is phrased in a somewhat unusual fashion in that it vests in the Chairperson of the Tribunal a discretion not to publish a decision of the Tribunal which in his or her opinion is not of legal importance, whereas subsection (b) deals with the contents of any decision actually published (emphasis added).

    Communication of decisions

    Section 16(17) of the 1996 Act, as amended, deals with the communication of decisions and now provides:

    "17(a) a decision of the Tribunal under subs. (2) and the reasons therefor shall be communicated by the Tribunal to the applicant concerned and his or her solicitor (if known).
    (b) A decision of the Tribunal under subs. (2) and the reasons therefore shall be communicated by the Tribunal to the Minister together with a copy of the report of the Commissioner under s. 13.
    (c) A decision of the Tribunal under subs. (2) shall be communicated to the High Commissioner."
    Transitional provisions

    The Act of 1996 as amended also contains transitional provisions at ss. 28 and 28(A). These relate to the scope of the Act and the question of retrospectivity. These sections provide:

    "28 - Where, before the commencement of this Act, a person had made an application to the Minister for asylum but a decision in relation thereto had not been made by the Minister then, the application shall be deemed to be an application under section 8 and shall be dealt with accordingly; any step taken by the Minister before such commencement in relation to the application (being a step required to be taken under this Act in relation to an application under this Act) shall be deemed to have been taken under this Act."

    Section 28(A) provides:

    "28(A) - (1) Where an application has been made under s. 8 before the commencement of s. 7 of the Immigration Act, 2003 -
    (a) In case, before such commencement, the applicant has been interviewed under s. 11, then, upon such commencement, this Act shall apply to the application as if the said s. 7 had not been commenced,
    (b) In any other case, then, upon such commencement, this Act as amended by the said s. 7, shall apply to the application."

    Section 7 relates to reporting obligations and is not relevant to the matters in issue. Section 7A deals with the establishment of the refugee advisory board and its functions.

    Function of the Chairman: Delegation, publication of guidelines/guidance notes, avoidance of divergence by members and their functions

    The second schedule of the 1996 Act, as amended by the Immigration Act, 2003, also contains a number of relevant provisions regarding the powers of the Chairman. At para. 16 it is provided:

    "16. The Chairperson may delegate to a member of his or her staff his or her function of assigning to each division the business to be transacted by it.
    17. The Chairperson may from time to time issue guidelines or guidance notes generally on the practical application and operation of the provisions or any particular provisions of this Act and on developments in the law relating to refugees.
    18. The Chairperson may from time to time convene a meeting with the member or members of the Tribunal for the purpose of discussing matters relating to the discharge of the business of the Tribunal, including, in particular, such matters as the avoidance of undue divergences in the exercise by the members of their functions under s. 16."

    The Immigration Act of 2003 was passed by the Oireachtas on 14th July, 2003, and came into effect on 15th September of that year. While it is unnecessary to deal with the issue of other amendments introduced by the Act of 2003 it is sufficient to say that applications made prior to its coming into effect are referred to as "old system" cases and those after that date as "new system" cases. By reason of the date of application, it is contended that if the applicant in the first set of judicial review proceedings, P. P. A., has standing to raise this claim, he is, the respondents contend, undoubtedly an "old system" case.

    While the respondents contend that the Act of 2003 does not confer any rights as asserted upon the applicants in the second and third set of judicial review proceedings, they specifically now assert in the course of this hearing that even if such rights do arise for those applicants, no such rights arise in relation to the applicant in the first named proceedings P. P. A..

    The constitutional status and entitlement of the applicants

    There is clear authority that in the case of applications to the High Court to challenge the validity of decisions of the Tribunal a non-national is entitled to the same degree of natural justice and fairness of procedures as a citizen. This issue was specifically dealt with in the judgment of the Supreme Court in the Article 26 reference in The Illegal Immigrants (Trafficking) Bill, 1999 [2000] 2 IR 360 at
    p. 385, where Keane C.J. pointed out on behalf of the Court:

    "It may be that in certain circumstances a right of access to the courts of non-nationals may be subject to conditions or limitations which would not apply to citizens. However, where the State, or State Authorities, make decisions which are legally binding on, and addressed directly to, a particular individual, within the jurisdiction, whether a citizen or non-national, such decisions must be taken in accordance with the law and the Constitution. It follows that the individual legally bound by such a decision must have access to the Courts to challenge its validity.

    Otherwise the obligation on the State to act lawfully and constitutionally would be ineffective. For the purpose of this reference the court is satisfied that non-nationals have a constitutional right of access to challenge the validity of any of the decisions or other matters referred to in s. 5(1) taken in relation to him or her.

    Similar considerations arise with regard to a non-national's right to fair procedures and to the application of natural and constitutional justice where he or she has applied for asylum or refugee status. The Refugee Act, 1996 and the Immigration Act, 1999 confer and regulate the legal right of non-nationals to apply for asylum or refugee status. Persons charged with taking decisions pursuant to those Acts are engaged in the administration of the law of the State (italics added). As regards judicial review of those decisions the court adopts the following statement of the law by Barrington J. in The State (McFadden) v. Governor of Mountjoy Prison (No. 1) [1981] I.L.R.M. 113 at p. 117:

    'The substantive rights and liabilities of an alien may be different to those of a citizen. The alien for instance may not have the right to vote or may be liable to deportation. But when the constitution provides basic fairness of procedures in the administration of the law it does so not only because citizens have rights, but also because the courts in the administration of justice are expected to observe certain forms of due process enshrined in the Constitution. Once the courts have seisin of a dispute it is difficult to see how the standards they should apply in investigating it should, in fairness, be any different in the case of an alien than those to be applied in the case of a citizen.'"

    Keane C.J. added:

    "In that case Barrington J. was concerned with fairness of procedures in the administration of law by the courts. In this reference the court is not concerned with the constitutional principles which should apply in the operational procedures envisaged by the Refugee Act, 1996 and the Immigration Act, 1999. There is a presumption that those Acts are applied in accordance with those principles. The court is concerned only with the provisions of s. 5 determining the procedure by which the validity of a decision or other matter governed by s. 5(1) may be challenged before the courts. The court is satisfied that, in that case of applications to the High Court to challenge the validity of such decisions or other matters, a non-national is entitled to the same degree of natural justice and fairness of procedures as a citizen."

    It will be seen therefore that in the course of the quotations above specific reference is made to "persons charged with taking decisions pursuant to those Acts" and it is specifically stated that they are "engaged in the administration of the law of the State."

    The nature of the procedure

    An application for refugee status is a matter of importance and consequence. A successful application confers a specific status, including a right of residence, upon the successful applicant. Such a declaration carries with it other rights and entitlements of great significance, including the right to work in the State and also certain social welfare entitlements.

    The consequences of a negative finding may equally be of great significance and may entail the denial to the unsuccessful applicant of any right to reside in the State (subject to appeal or judicial review) and the possibility of refoulement or return to country of origin or some third country together with a potential exposure to persecution.

    It follows therefore that the procedures laid down by statute contain a substantial number of protections to ensure that justice is done, and seen to be done, in the case of each applicant including the observance of many aspects of fair procedure rights.

    Not only are the decision makers engaged in the administration of law, they are also obliged by virtue of the quasi-judicial nature of the proceedings at least to act in a judicial manner.

    The applicants' claim: fair procedures

    The applicants in the course of their submissions rely heavily on their entitlement to the records of previous decisions of the Tribunal as a matter of fair procedures. This issue therefore falls first for consideration.

    There is clear authority that the constitutional right to fair procedures in a decision-making process affecting a person's rights extends to a requirement that relevant information, documentation and matter of evidence should be disclosed. (See The State (Williams) v. Army Pensions Board [1983] I.R. 308 and McConnell v. Eastern Health Board, High Court, 1st June, 1983, unreported). This precept was observed in Nolan v. The Irish Land Commission [1981] I.R. 23 which in turn applied the following dicta of Henchy J. in Kiely v. The Minister for Social Welfare (1) [1977] IR 267 at p. 278:-

    "It would be contrary to natural justice if one side were allowed to shelter behind his controverted documentary evidence while the other side had to bring his witnesses to the hearing, where they might be required to give their evidence on oath and to be subject to cross-examination. The lack of mutuality and the potential for an unjust determination inherent in such a procedure would put it in conflict with the rule of audi alteram partem."

    Later in that same judgment at p. 281 Henchy J. continued:

    "…

    This Court has held, in cases such as In Re Haughey [1971] I.R. 217, that Article 40, s. 3, of the Constitution implies a guarantee to the citizen of basic fairness of procedures. The rules of natural justice must be construed accordingly. Tribunals exercising quasi-judicial functions are frequently allowed to act informally – to receive un-sworn evidence, to act on hearsay, to depart from the rules of evidence, to ignore courtroom procedures, and the like – that they may not act in such a way as to imperil a fair hearing or a fair result. I do not attempt an exposition of what they may not do, for, to quote the frequently cited dictum of Tucker L.J. in Russell v. Duke of Norfolk [1949] 1 All E.R. 109, 118, 'There are, in my view, no words which are of universal application to every kind of inquiry and every kind of domestic tribunal. The requirements of natural justice must depend on the circumstances of the case, the nature of the inquiry, the rules under which the tribunal is acting, the subject matter that is being dealt with, and so forth.'

    Of one thing I feel certain, that natural justice is not observed if the scales of justice are tilted against one side all through the proceedings. Audi alteram partem means that both sides must be fairly heard. That is not done if one party is allowed to send in his evidence in writing, free from the truth-eliciting processes of a confrontation which are inherent in an oral hearing, while his opponent is compelled to run the gauntlet of oral examination and cross-examination. The dispensation of justice in order to achieve its ends, must be even handed in form as well as in content."

    These principles were applied in the judgment of Walsh J. in Nolan v. The Irish Land Commission [1981] I.R. 23, which upheld the right of the plaintiff to have "full information as to the case he has to meet". He added at p.23:

    "The plaintiff should know prior to the hearing the case that he has to meet so as to enable him to cross examine the defendant's witnesses and to adduce evidence himself, if he should be so advised. It follows from this conclusion that, as the plaintiff will not have had an adequate opportunity to know the case he has to meet, the proposed hearing would infringe the principles of natural justice because it would be held contrary to the principle audi alteram partem and because the absence of the procedures sought would imperil a fair hearing of the issues to be determined."

    The extent or range of fair procedures

    Because of their significant positive and negative consequences, the hearing and procedure in these cases comes within that range of proceedings wherein the applicant is entitled fair procedures. Such entitlement was considered by the Supreme Court in Gallagher v. The Revenue Commissioners [1995] I.R. 55, and expressed by Barron J. in the High Court in Flanagan v. U.C.D. [1988] I.R. 724 at pp. 730-731 thus:-

    "Once a lay Tribunal is required to act judicially, the procedures to be adopted by it must be reasonable having regard to this requirement and to the consequences for a person concerned in the event of an adverse decision. Accordingly, procedures which might afford a sufficient protection to the person concerned in one case, and so be acceptable, might not be accepted in a more serious case."

    Administrative difficulties in affording fair procedures are not sufficient to obviate a duty to so provide. In Gallagher, Hamilton C.J., relying on the dicta of Lane L.J. in R v. Board of Visitors of Hull Prison [1979] 1 W.L.R. 141 at 1406, stated at p. 79:-

    " …but mere administrative difficulties, simpliciter, are not in our view enough. Convenience and justice are often not on speaking terms: see per Lord Atkin in General Medical Council v. Spackman [1943] A.C. 627, 638."

    In any event, no such contention has been made in this case. Consequently it is unnecessary to have regard to the issue of any administrative burden which might arise.

    The respondents case: no evidence of denial of fair procedures on the issue in suit

    The respondents do not deny that the applicants are entitled to fair procedures. It is asserted that this is provided for under the legislation. However they take issue with the applicant's contention that access to previous decisions is a necessary adjunct to this requirement.

    They contend that this question arose in two previous decisions of this Court. These decisions are Raiu & Ors. v. The Tribunal, unreported, Smyth J., 25th April, 2002, and Pop v. Tribunal, unreported, Butler J., June, 2004. In each case, they argue, it was held that the publication of previous decisions was not a requirement of fair procedures.

    A consideration of both these decisions determines the following features however.

    First the issue as to whether there was an obligation to make available previous decisions of the Tribunal was not fully dealt with, nor did it arise squarely in either case. The issue now before this court was touched on briefly and peripherally in those cases as just one facet of a number of different heads of challenge.

    Second but, by way of background, neither the Immigration Act 2003 nor the European Convention on Human Rights Act, 2003 were in force or referred to in or at the time of those two decisions. Further, it is a particularly striking feature that the amendment to the Refugee Act in 2003 appears specifically to envisage and provide for a "negative discretion" on the part of the Chairman as to whether or not to publish decisions of legal importance, to provide for protection of identity upon publication, and, additionally, to put procedures in place for ensuring conformity of decision making between Tribunal members (see s. 19(4A) (a) and (b); and paragraph 16-18, second schedule of the Act.

    Moreover there are a number of persuasive and relevant authorities from both this jurisdiction and elsewhere which appear not to have been cited to the court in the course of argument in the cases of Raiu and Pop to which reference is made below.

    The respondents further contend that there is no evidence before this court that any deciding officer makes reference to previous decisions of the Tribunal or any of its officers. I accept that there is no such evidence in this case.

    Moreover, it is contended, there are numerous instances of courts and tribunals where judgments or decisions are furnished whether on an ex tempore basis or otherwise which are not part of the corpus juris and which are not the subject matter of any record or report, formal or otherwise. Mr. Patrick J. McCarthy, S.C., in the course of his succinct argument instanced decisions of the District Court, Circuit Court and ex tempore judgments in the Superior Courts and the Court of Criminal Appeal, none of which are the subject matter of any formal reporting procedure or mechanism. Why then he asks rhetorically, is the availability of previous decisions a necessary facet of fair procedures in the instant cases?

    At first sight counsel's arguments on this point are persuasive, seen in isolation. Clearly it is not always necessary that there should be a recording or reporting procedure for the decisions of any court. But what is necessary is that the law must be adequately accessible, to an applicant no less than to a citizen. He or she must be able to have an indication, adequate in the circumstances, of the legal rules applicable to a given case. Further, the principles must be formulated with sufficient precision to enable the applicant to cite them and to assist the Tribunal in applying the law in a manner which is reasonably foreseeable.

    These precepts apply to principles identified by way of precedent as well as statute (see The Sunday Times v. United Kingdom (1979) 2 EHRR 245 at page 271, paragraphs 4 and 50).

    The consequences of confidential hearings in private

    There is however a fundamental distinguishing feature which arises with regard to the procedures of the respondent. That is the fact that its hearings and decisions are neither conducted nor delivered in public. Nor is there any mechanism available for persons concerned in the hearing, even legal practitioners, to have access to previous relevant decisions.

    This is of particular importance in light of the fact that, absent judicial review proceedings, the Tribunal is ultimately the court of last appeal.

    How then can an applicant cite or rely on precedent? How can he or she be advised on the law or on the approach to issues taken by the respondents if such are not precisely identified and published?

    There are a number of decided cases in this jurisdiction where parallel issues have arisen regarding the administration of justice in public as well as the constitutional provisions laid down under Article 34.1 of Bunreacht na hÉireann. To these one must now turn.

    The most notable of these is In re R Limited [1989] I.R. 126. Under s. 205 of the Companies Act, 1963, it is provided that a member of a company may apply to the High Court for relief where the powers of the directors of company are being exercised or its affairs conducted in a manner oppressive to him or any of the members. Subs. 7 provides:

    "If, in the opinion of the court, the hearing of proceedings under this section would involve the disclosure of information the publication of which would be seriously prejudicial to the legitimate interests of the company, the court may order that the hearing of the proceedings or any part thereof shall be in camera."

    It was held by the Supreme Court (Walsh, Griffin and Hederman J.J.; Finlay C.J. and Hamilton P. dissenting) in allowing the appeal and directing that the proceedings be heard in public –

    1. That one of the requirements essential to the administration of justice was that it be in public unless that requirement, by itself, operated to deny justice in the particular case and this principle was enshrined in Article 34.1 of the Constitution.
    2. That accordingly the specific exceptions to the administration of justice in public permitted by Article 34 were limited to those cases which were "prescribed by law" and where it was shown that the publicity by itself would deny justice as between the parties.

    Walsh J., speaking on behalf of the majority, held that the fundamental requirement that justice be administered in public is not satisfied merely by the pronouncement in public of a judicial decision based upon evidence taken in secret unless this is precisely within the limits of the appropriate statutory exception.

    In the course of his judgment he set out the reasoning of the majority of court at p. 134:-

    "The issue before this court touches a fundamental principle of the administration of justice in a democratic state, namely the administration of justice in public. Article 34 of the Constitution provides that justice shall be administered in courts established by law and shall be administered in public save in such special and limited cases as may be prescribed by law. The actual presence of the public is never necessary but the administration of justice in public does require that the doors of the courts must be open so that members of the general public may come and see for themselves that justice is done. It is in no way necessary that the members of the public to whom the courts are open should themselves have any particular interest in the cases or that they should have had any business in the courts. Justice is administered in public on behalf of all the inhabitants of the state."

    Having dealt with various issues which arose regarding the procedure to be adopted at trial in where issues of confidentiality arose, Walsh J. concluded:-

    "I am also of opinion that in either event a judgment should be pronounced in public. If part or the whole of the proceedings were to be heard other than in public I am of opinion that so much of the judgment as does not disclose the particular information which had been withheld from publication should be pronounced in public."

    Speaking for the minority Finlay C.J. held:-

    "Where a judgment contains decisions on questions of law or principles applicable to the interpretation of s. 205, it is desirable that even though the decision only may have been announced in public, the detailed judgment is delivered in camera, that an edited version of the judgment, avoiding the revealing of seriously prejudicing information, should be circulated for the benefit of the legal profession and of the public."

    The fundamental importance of the administration of justice in public was reiterated by the Supreme Court in the case of the Irish Times Limited & Ors. v. Ireland & Ors. [1998] 1 I.R. at p. 359. The principles in these decisions are of high relevance in the instant case, albeit by analogy.

    The process in which the respondents are engaged is quasi-judicial in nature. Clearly the individual facts of each case may differ. But in many cases there are common elements, and issues arise which are of an objective nature. To cite a number of common instances: what is the general situation in a particular jurisdiction or at a particular time relevant to the application? What is the level of state protection available at a particular time in a particular state to particular categories of person? Is the fear of persecution of an asylum seeker well grounded in objective terms as well as subjective?

    Clearly the existence of objective findings on such issues are of vital relevance not only to the individual case in which such finding is made, but to other cases which share a common geographical and temporal background.

    Conformity and consistency in decision making are surely essential facets of fair procedures in a quasi-judicial process of this nature. How can these objectives be achieved in the absence of access to previous relevant decisions of the Tribunal on issues such as those identified above? How can fairness of process be observed when the respondent may know upon what evidence his officials may rely as to objective circumstances in a particular state but the applicant may not?

    I do not believe that these questions have been answered by the respondents.

    Act 34 of Constitution of Ireland and Art 6(1) of the European Convention on Human Rights.

    Article 6 (1) of the European Convention of Human Rights, insofar as relevant, provides:

    "In the determination of his civil rights and obligations or of any criminal charge against him everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law.

    Judgment shall be pronounced publicly but the press and public may be excluded from all or part of the trial in the interests of morals, public order or national security in a democratic society, where the interests of juveniles or the protection of the private life of the parties so require, or to the extent strictly necessary in the opinion of the court in special circumstances where publicity would prejudice the interests of justice."

    It will be seen then that Article 6 (1) of the Convention thus overlaps in large

    measure with the requirements of Article 34, as is pointed out in J.M. Kelly: The Irish Constitution, 4th Edition, G.W. Hogan, G.F. Whyte, (Dublin, 2003) (at page 751).

    There are, perhaps, only two significant differences between Article 6 (1) of the Convention and the requirements of Article 34:

    "First unlike Article 34.1, Article 6 (1) of the European Convention expressly requires that a judgment be pronounced publicly. But even this express requirement does not necessarily mean that the present practice of pronouncing judgment in camera in cases required to be heard otherwise than in public and circulating it later infringes Art. 6 (1), as the European Court of Human Rights has indicated that in such cases it suffices its steps are 'taken to make public' the decision in question."

    By way of footnote the authors refer to the case of Campbell and Fell v. United Kingdom (1985) 7 EHRR 165, 202 where the European Court held that a prison board of visitors violated Article 6 (1) not because their judgment or decision was pronounced in private – since this provision is not literally interpreted in that fashion - but because no steps had been taken to make public the board of visitors decision.

    The learned authors continue at paragraph 6.1.257:

    "Secondly, the scope of Article 6 (1) is broader than Article 34 (1), inasmuch as the former provision applies to administrative bodies - such as statutory disciplinary bodies - which determine 'civil rights and obligations' and not merely as (Article 34.1 does) to the administration of justice in the courts." (The authors refer to the authorities of Le Compte v. Belgium (1983) 4 E.H. R.R. 1; Diennet v. France (1996) 21 E.H.R.R. 254.)

    The logic of these observations apply in the present context particularly having regard to the nature of the important matters of principle or objective fact determined in one case which may be relevant to another in the interests of conformity and for the maintenance of procedural equality.

    Decisions of the European Court of Human Rights

    By way of further illustration, the issue of public pronouncement of judgments and administrative decisions has arisen also in the jurisprudence of the European Court of Human Rights which although not binding on this court are of much assistance: vide see Pretto v. Italy (1983) 6 E.H.R.R. 182, where it was first held that a literal interpretation of Article 6(1) did not necessitate the public announcement of judgments. The case of Sutter v. Switzerland [1984] 6 EHRR 272 was to similar effect. However, in the light of subsequent decisions of that court and the courts of Ireland, the dissenting opinion of Judges Cremona, Ganshof van der Meersch, Walsh and MacDonald appears the more persuasive and on point:-

    "Having regard to the object and purpose of the publicity requirement enshrined in that provision (Article 6(1) of the Convention) elaborated by the court in its judgment in this case, we feel it is necessary to emphasise the particular importance of the accessibility of the judgment to the general public. If the basic underlying concept of public scrutability is to be a reality, a restricted access to judgments such as existed in the present case, i.e. restricted only to persons who could establish an interest to the satisfaction of a court official, falls short of what is required by that provision of the Convention. Public knowledge of court decisions cannot be secured by confining that knowledge to a limited class of persons."…
    "Neither the annual roneotyping of the judgments of the Military Court of Cassation after appreciable delay nor the subsequent publication of some of those judgments in printed form in volumes covering a number of years (in the present case the judgment was published only after an interval of some six years) is sufficient to comply with the requirements of the said provision. Furthermore it is to be noted that even such publication is not required by law but depends solely on voluntary initiatives."

    By way of further illustration, the Court of Human Rights extended this principle to administrative hearings in the case of Diennet v. France (1995) 21 E.H.R.R. 554, which related to disciplinary proceedings against a general medical practitioner before the French Medical Association. In that case the Court held that hearings should be held in public was a fundamental rule of the Convention. The public character of hearings protects the litigant against the administration of justice in secret with no public scrutiny and is also one of the means whereby confidence in the courts can be maintained. This proposition was clearly enunciated in the judgment of the President of the Court, Judge Rysstal, at para. 33 of the judgment:-

    "The court reiterates that the holding of court hearings in public constitutes a fundamental principle enshrined in Article 6. This public character protects litigants against the administration of justice in secret with no public scrutiny; it is also one of the means whereby confidence in the courts can be maintained."

    By rendering the administration of justice transparent, publicity contributes to the achievement of the aim of Article 6 (1), namely a fair trial, the guarantee of which is one of the fundamental principles of any democratic society, within the meaning of the Convention. While maintaining that the requirements of Article 6 (1) do not render the need for public hearings absolute, the court concluded that there had been a breach of Article 6.1 and 6.1 in that case. Thus the Court of Human Rights expanded the principle of publicity to quasi-judicial administrative hearings, where such hearings are of serious moment to respondents.

    Common Law Authority

    The issue of public hearings and pronouncement of judgment in maintaining consistency and conformity is also touched on by Blackstone in his Commentaries on the Laws Of England, volume 1, para. 69, where, having dealt with the sources of the common law, he wrote:

    "But here a very natural, and very material, question arises: how these customs and maxims are to be known, and by whom is their validity to be determined? The answer is, by the judges in the several courts of justice. They are the depositaries of the law; the living oracles, who must decide in all cases of doubt and who are bound by an oath to decide according to the law of the land… And indeed these judicial decisions are the principal and most authoritative evidence that can be given, that the existence of such a custom shall form a part of the common law. The judgment itself, and all the proceedings previous thereto, are carefully registered and preserved under the name of records, in public repositories set apart for that particular purpose; and to them frequent recourses had, when any critical question arises, in the determination of which former precedents may give light or assistance."

    Further assistance on this issue can be obtained from a persuasive authority in a neighbouring jurisdiction: Manzeke v. The Secretary of State for the Home Department [1997] Imm AR. In the course of that decision Lord Woolf M.R. stated:-

    "Particularly when determining appeals brought where it is necessary to give consideration to the general situation in particular parts of the world, it is important for Tribunals, when appropriate, to give their views as to that situation, so far as relevant, to claims for asylum in that part of the world."

    That judge continued:-

    "In administering the asylum jurisdiction, the tribunal (whether it be a special adjudicator or an Appeal Tribunal) has to consider not only whether the individual asylum seeker has the necessary subjective fear to be regarded as someone who is entitled to asylum, but in addition it has to be satisfied that that fear is well-founded. Whether or not that fear is well-founded involves applying an objective standard, (emphasis added) a standard which will depend upon the state of affairs in that particular country as well as the circumstances of the individual asylum seeker."

    He concluded:

    "It will be beneficial to the general administration of asylum appeals for special adjudicators to have the benefit of the views of a Tribunal in other cases of a general situation in a particular part of the world, as long as that situation has not changed in the meantime. Consistency in the treatment of asylum seekers is important insofar as objective considerations, not directly affected by the circumstances of the individual asylum seeker, are involved."

    Consideration of the Legal Principles and their Application

    It is now necessary to consider and apply those principles which arise by analogy and illustration from the authorities cited above.

    It has been held by the Supreme Court that the decision makers in the cases in issue are involved in the administration of law. The administration of law and the making of decisions of this type involves not only the consideration of factual nature but the interpretation of statutes and the application of precedents. Such precedents may be applied by way of analogy, induction or deduction, or by the application of a particular conclusion in another case as to an objective state of facts to the case before the tribunal.

    It would not be correct to suggest that deciding officers involved in this important decision making process are engaged in a mere process of taxonomy or categorisation or that their task is in any way limited to the ascertainment of the credibility of applicants.

    The process of the application of law in these cases entails more than this, and more than the mechanical or technical application of the relevant statutes, decisions of our Superior Courts, foreign courts and learned text books and articles. In order to maintain conformity and consistency with regard to objective facts such as those identified in Manzeke, it follows that decision makers and the legal advisors to applicants, should for the purposes of the application and interpretation of the law have regard to relevant prior decisions so as to be even-handed in form as well as in content. Equally, such procedure must surely be necessary in order to maintain conformity and so that applicants and respondents are aware of the legal principles to be applied. Only in this way can fairness of procedure and equality of arms be achieved and be seen to be so.

    The court was informed in the course of this hearing that the present position in Ireland regarding the absence of reporting in such cases is unique in the common law jurisdictions.

    For the reasons outlined I am of the view that such a position cannot accord with the principles of natural and constitutional justice, fairness of procedure or equality of arms having regard to the importance and significance of the issues to the applicants which fall to be determined even in this quasi-judicial process.

    The paradox of the present position is illustrated more forcibly by reason of the clear inference which may be drawn regarding the circumstances of these cases wherein, it may easily be inferred, the legal advisers to each of the three applicants are well aware of the existence of prior determinations of the tribunal which would appear to them to be relevant and material but cannot cite them in the instant cases.

    Such a situation is, in its essence, an unfair one.

    Has the Chairman a discretion to publish decisions?

    One turns then to the interpretation of s. 19(4)(A) (a) and (b) of the Act of 2003.

    It is accepted that although this relevant statutory provision regarding discretion (cited earlier page 7) has been in force since September 2003, as yet no decisions of legal importance have been published although some 20 months have elapsed.

    Ms. Nuala Butler S.C., who appeared on behalf of the respondents in the second and third cases, submitted that a distinction must be drawn between capacity opposed to obligation regarding the discretion of the Chairman.

    In the context of the whole Act as amended I do not believe that the intent of the Oireachtas is simply to vest in the Chairman a mere capacity to publish or not to publish.

    The powers vested in the Chairman must of course be subject to the normal requirements of administrative law regarding the exercise or non-exercise of a discretion. But they also must be seen in the context of the second schedule of the 1996 Act as amended by the Immigration Act 2003, paragraph 16-18, (see page 9 of this judgment) which permits the Chairman from time to time to issue guidelines or guidance notes generally on the practical application and operation of the provisions of any particular provisions of the Act and on developments in the law relating to refugees. These permit the Chairman to convene meetings of members of the tribunal for the purpose of discussing matters relating to the discharge of the business of the tribunal, including in particular, such issues as the avoidance of undue divergence in the exercise by the members of their functions under s. 16. As a matter of practicality this power could not be exercised without reference to decisions made by various members of the tribunal. The guidelines in question also should encompass precisely the types of issue which were referred to earlier in the course of the judgment of Woolf M.R. in Manzeke v. SSHD [1997] Imm AR 524.

    Although phrased unusually at s. 19 4A(a), it is clear that the discretion therein is not to publish unimportant decisions of the Tribunal. But this does not preclude publication or all. For in reading s. 4A(a) and (b) together it is clear that there must be vested in the Chairman a positive discretion to publish decisions which are of legal importance. Otherwise s.19 4A(b) has no meaning at all and is otiose. The court must lean against such interpretation. Only by adopting this approach can effect be given to the maxims of interpretation, first that it is commonsense to assume that if a particular proposition is laid down by an enactment the converse also applies; and second, ut res magis voleat quam pereat (it is better for a thing to have affect than to be made void). In this way any difficulty in interpretation is obviated and both provisions may stand (cf Bennion Statutory Interpretation 4th Edn. Butterworths pp. 475 – 478).

    I am also persuaded that the constitutional interpretation of this provision also necessitates that the Chairman not only has a negative discretion, i.e. not to publish decisions which are not of legal importance", but also a correlative positive discretion, which must be exercised having regard to the principles outlined above to actually publish decisions which are of legal importance (see s. 4(A) (b) of the Act of 1996 as amended). Thus effect is given to the well known dictum of Walsh J. in the case of East Donegal Cooperative Limited v. The Attorney General [1970] I.R. 317 at p. 341 where he said:

    "An Act of the Oireachtas, or any provision thereof, will not be declared to be invalid where it is possible to construe it in accordance with the Constitution; and it is not only a question of preferring a constitutional construction to one which would be unconstitutional where they both may appear to be open but it also means that an interpretation favouring the validity of an Act should be given in cases of doubt."

    Moreover he concluded:

    "Official actions that are envisaged by any Act even if their modes of performance are not specified in the act must be performed in such a way as to respect the Constitution because the Oireachtas must have intended them so to be performed".

    He added:

    "At the same time… the presumption of constitutionality carries with it not only the presumption that the constitutional interpretation or construction is the one intended by the Oireachtas but also that the Oireachtas intended that proceedings, procedures, discretions (emphasis added) and adjudications which are permitted, provided for, or prescribed by an Act of the Oireachtas are to be conducted in accordance with the principles of constitutional justice. In such a case any departure from those principles would be restrained and corrected by the Courts." (at p. 243).

    The statutory discretion now vested in the Chairman is to be exercised in a rational, fashion so as to ensure the legal principles are of precedential value as guidelines.

    I am fortified in this interpretation by the fact that while the Act mandates that decisions made on foot of such discretion must be arrived at having regard to the obligations of confidentiality, the very terms of the Act do not impose a blanket ban on publicity. Indeed the statutory treatment of this issue reinforces the view which must be taken regarding the issue of the Chairman's discretion to publish decisions of importance, as it specifically protects confidentiality in the case of decisions actually published (S. 19(4A) b).

    For the reasons outlined above I am satisfied, therefore, that the first and second named respondents' refusal to make available to the applicants in the second and third set of proceedings relevant tribunal decisions as requested or identified and as sought constitutes an unlawful exercise of the statutory discretion afforded them under the 2003 Act, as properly interpreted.

    Finally one turns to the application of these identified principles to decisions and procedures embarked upon prior to the 15th September, 2003. Section 19 (2) of the 1996 Act, prior to its amendment on that date provided:

    "…no matter likely to lead members of the public to identify a person as an applicant under this Act shall be published in a written publication available to the public or be broadcast without the consent of that person and the consent of the Minister (which shall not be unreasonably withheld)."

    It will be seen then that the nature of the pre-amendment prohibition on publicity was a limited one. It was merely to prevent the publication of matter which might tend to identify an applicant. The Act of 1996 prior to its amendment contained no specific prohibition on the publication of decisions or the principles contained therein.

    It has been submitted on behalf of the respondents that the Immigration Act of 2003 operates only prospectively on this issue. I accept this proposition. On the particular facts of the case it would prove of no aid therefore to the applicant in the first set of proceedings.

    However, by virtue of their having asserted a constitutional entitlement on the basis of natural justice and fair procedures (but not otherwise) each of the applicants are entitled to obtain copies of relevant and material decisions which may be of importance, or identified decisions which may come within that category. Thus while the statutory discretion vested in the Chairman is prospective in nature, the specific constitutional right of the applicants should, but by virtue of the assertion of such right, be seen as applicable to decisions relevant to these case. It must be stressed therefore that the applicants are entitled to rely on this right in these applications only by virtue of their timely assertion of the right before the Tribunal. No issue of Locus Standi is pleaded in any of the cases and while the issue was touched on in oral submissions by the respondents I am satisfied this cannot be an issue to be entertained at this late stage in the absence of any such pleading.

    As can be seen, the obligation placed on the Tribunal as a result of this assertion is a narrow one. Decisions of the Tribunal can only be considered relevant to an applicant where they deal with a substantive issue of legal principle. Such principles are at stake in the applicants cases.

    Having regard to the foregoing the court will hold that the applicants are entitled to judicial review, albeit on the narrow and confined grounds as outlined above. In the light of this declaration, no issue arises under the European Convention on Human Rights Act 2003.

    It has been seen that there is a distinction, arising out of the fact that the decisions and procedures which the first named applicant is challenging were embarked upon prior to 15th September, 2003, between the grounds on which the first named applicant is entitled to relief and those on which the second and third named applicants may claim relief. The court will therefore grant a declaration that the refusal of the first and second named respondent to make available to the first named applicant relevant tribunal decisions as requested or identified and as sought by the first named applicant is in breach of the first named applicant's rights to fair procedures and natural and constitutional justice pursuant to the provisions of Article 40.3 of the Constitution. As regards the second and third named applicants, the court will grant a declaration that the refusal of the first and second named respondent to make available to them relevant tribunal decisions as requested or identified and as sought by the applicants is an unlawful exercise of the discretion afforded it under the 2003 Act, as well as being in breach of the these parties' rights to fair procedures and natural and constitutional justice under Article 40.3 of the Constitution.

    Approved: MacMenamin J.


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