THE HIGH COURT
DUBLIN
JUDICIAL REVIEW
BETWEEN
V. R.
Applicant
Record No. 2002/57JR
AND/
P. U.
Applicant
Record No. 2002/76JR
AND/
E.G.B.
Applicant 
Record No. 2002/77JR
-AND-
THE REFUGEE APPEALS TRIBUNAL MINISTER FOR JUSTICE EQUALITY AND LAW REFORM IRELAND AND THE ATTORNEY GENERAL
Respondents

THE JUDGMENT WAS DELIVERED, AS FOLLOWS, ON THURSDAY, 25TH APRIL 2002
MR. JUSTICE SMITH:       These cases are identical in the relief sought by way of relief to apply for judicial review. They seek injunctive relief restraining the Refugee Appeals Tribunal (hereinafter referred to as "the Tribunal") from proceeding with the hearing of the Applicants' appeals until such time as access to previous decisions of the tribunal and/or the Refugee Appeals Authority are furnished to the Applicants; and/or an order of mandamus requiring the Tribunal or Minister to furnish the Applicants copies of such decisions.

The Applicants also seek 
"A declaration that the Applicant is entitled to be provided with access to previous decisions that the first-named Respondent and/or the Refugees Appeal Authority; and/or a declaration that the Refugee Act, 1996 (Appeals) Regulations, 2000 are ultra vires and/or contrary to the constitutional rights to the Applicant; and/or that Section 16(14) and Section 19 of the Refugee Act 1996 are
unconstitutional and void." 

The Applicants also seek a stay restraining the Tribunal from further processing or hearing the Applicants appeals, pending the determination of these proceedings. The grounds upon which relief are sought are:-
1. The Applicant is entitled to fair procedures in the processing of his appeal to the first named Respondent which right is impaired by the failure to provide access to previous decisions. The Applicant is gravely prejudiced by reason of such failure, which is not warranted by the Refugee Act and/or The Refugee Act 1996 (Appeals) Regulations/ 2000.
 	2. If, which is not admitted, the Refugee Act 1996 (Appeals) Regulations 2000 and/or	* Sections 16(14)and Section 19 of the
Refugee Act 1996 prohibit that the dissemination to the Applicant of the said previous decisions, the said regulations are ultra vires and void and contrary to the constitutional rights of the Applicant in particular the right to fairness of procedures and/or the said statutory provisions are unconstitutional and void and contrary to the said constitutional rights.
Appeals from decisions of the Refugee Appeals Commissioner (hereinafter referred to as "the Commissioner") are provided for under Section 16 of the Refugee Act 1996, as amended. Section 23 of the said Act enables the Minister to make regulations referrable to such appeals, this he did in Statutory Instrument No. 342 of 2000, entitled Refugee Act 1996 (Appeals) Regulations, 2000 (hereinafter referred to as "the Regulations"). 

The appeals lodged by the Applicants some six months ago appear to have been ready for relisting in February 2002. The Applicants1 solicitors wrote to the Tribunal for "access to all decisions made by the Refugee Appeals Tribunal that may be relevant to the issues in this case." The solicitors who act and have acted in a number of cases under the Act of 1996 and quite clearly raised this issue not only in these cases but also in at least one other case and received the decision of the Tribunal on the identical point as far as back at 24th December 2001 in the case not one of the three before the court. 

The relevant part of the letter of the 24th December 2001 reads as follows:
"I address the two general issues you have raised as follows:
(1)	Access to Decisions where a recommendation of the Office of the Refugee Applications Commissioner is affirmed by the Refugee Appeals Tribunal:
Section 16{14) of the Refugee Act 1996 (as amended) (the "Act") states that an oral hearing, under this section, shall be held in private. As the hearings are in private only the Minister, the Office of the Refugee Applications Commissioner, the applicant and his/her legal representative are given the Member's decision.
In addition Section 19(1) of the Act states that, inter alia, the Tribunal shall take all practicable steps to ensure that the identity of applicants is kept confidential. Section 19(2) of the Act prohibits publication of any matter likely to lead members of the public to identify a person as an applicant.
Therefore the Tribunal is constrained by law as to who is given access to its decisions.
(2)	Access to Decisions where a recommendation of the Office of the Refugee Applications Commissioner is set aside by the Refugee Appeals Tribunal: 
In addition to the above legal constraints, the Third Schedule of the Refugee Act 1996 (Appeals) Regulations, 2000 (S.I. 342 of 2000) prescribes how a decision of the Refugee Appeals Tribunal setting aside a recommendation of the Office of the Refugee Applications Commissioner under Section 13 of the Act is to be outlined. It provides that the Tribunal shall state that it 'is satisfied that being outside the country of your nationality of your former habitual residence you have a well-founded fear of persecution within the meaning of section 2 of the Refugee Act 1996'.
It is a management objective of the Tribunal to publish some Decisions and certain legal and legislative enquiries are being made by the Chairperson. However, you will note from the above that we are currently constrained by law in achieving this objective as to who has access to Decisions in affirmed cases and the text of the decision in set aside cases.
We regret we cannot be more helpful to you in this matter. If you wish to issue legal proceedings we confirm that the Chief State Solicitors Office have authority to accept same".

In each of the cases the oral hearing was re-scheduled for the month of February 2002. The Applicants' solicitors by letter in "U" dated 13th February 2002 wrote to the Minister conveying the gist of the correspondence they had with the Tribunal and then noted. 
"Without prejudice to whether this contention of the RAT is well founded (which we deny) we hereby call upon you to immediately move the necessary amendments to allow us access to the decisions previously made to the RAT and its predecessors the Appeals Authority given the urgency of the matter, we require an immediate reply as in default of same we intend to make immediate application for inter alia prohibition of the hearing".
This letter is written in the other cases in similar terms. The matter first came to my attention when counsel for the Applicants enquired if I would entertain an elk parte application in Court.  I received the papers, read them during a luncheon interval and was of the view that while the letters of response from the Tribunal were not of the nature of a formal decision on appeal, they were nonetheless letters containing a decision on a point that arose subsequent to the Notice of Appeal and arose out of a matter in the course of the appeal and therefore could be regarded as a decision embraced by Section 5(1)(i) of the Illegal Immigrants (Trafficking) Act 2000 and accordingly any application should have been on notice as provided for under Section 5(2) of the said Act of 2000.  In due course the matter was returned to me on notice on 19th March 2000 when a hearing date of 19th April 2000 was fixed.  I refused a stay on the hearing and did I not consider any necessity to adumbrate any reasons in the light of the fact that having read the papers it was quite clear that it was known since December 2001 (albeit in another case) what the decided position of the Tribunal was, that it was left to a point of relisting or re-scheduling of the appeal hearing before this issue was taken up with the Tribunal and
that the Minister had been written to on 13th February 2001 yet the matter was not brought before the court until almost a month later.

On the hearing of this application Dr.  Forde SC for the Applicants in an interesting and wide ranging review on the right of access to the law from Roman times and the first revolt of the plebs and the function of the Praetors to the reports of decisions published and maintained in the United Kingdom (with its former Empire, commonwealth and colonies) Australia (ignoring its being a continent) and the United States and Canada (political unions and not nation states) all of which have had extensive immigration reportage but also extensive immigration at various rates of acceleration for over a century or more. 

The submissions from the Applicants were that:-
	1. There was no rational justification for the blanket prohibition on decisions which was the application of a fixed policy.
	2. The publication of decisions would facilitate the management of the asylum system. 
3. That the Third Schedule to the Regulations is a mere prescription to decide and a statutory mandate for incoherence and that it was and is impossible to review the substance of the decision by following the formation of the Third  Schedule. 
4. That the number of affirmative decisions are/would be few and their availability to ascertain what arguments or points found favour with the Tribunal would assist legal advisors of Applicants to appeal or not or upon which grounds to appeal may be successful.
5. The reasoning behind the facts should be available to the public if not the legal profession.
6. There is no express prohibition in the Acts or Regulations to giving the reasons behind the facts. The provisions of Article 40.1 of the Constitution guaranteeing equality before the law and necessitated the publication of decisions. 

Mr. Birmingham, SC, for the Respondent submitted that:
1. There is a public interest in the maintenance of confidentiality concerning asylum seekers.  Indeed it is a policy imperative to protect such persons from being identified by oppressive regimes.
2. A balance must be struck between the competing rights inherent in the Applicants' argument and this has been done by the legislature (other examples of the requirements of confidentiality are family law, minors in criminal proceedings and sexual offences); but even these partake of a form of lis, whereas the Tribunal is not engaged in any form of lis.
3. The Scheme and policy of the Act and Regulations concerning confidentiality is consistent in this particular with the UNHCR handbook of guidelines. 
4. The "shared responsibility" as it is sometimes referred to of the inquirer (in the case of an appeal, the Tribunal) and the Applicant would not be furthered to ascertain true facts if decisions in other cases became generally available when the inevitable temptation to make a presentation to meet such a view would seriously militate against the integrity of the scheme as a whole.

Decision:-
1. The appropriate proceedings for contesting the constitutionality or otherwise of the Acts or Regulations is by way of Plenary Summons not through judicial review.
2. I am not satisfied that there are substantial grounds for contending that the decision of the Tribunal (as expressed in the correspondence) in the course of the appeal, is invalid or ought to be quashed.
3. It is not for the court through its decisions to seek to amend the Regulations by adding yet another layer of paper, record keeping and supply and add to a further bureaucracy to frustrate the intendment of the legislation concerning the confidentiality of appellants.
4. The constitutional rights of non nationals have been determined by the Supreme Court in the Illegal Immigrants (Trafficking) Bill, 1999 [2000] 2 I.R. 360 at 382.

In my judgment the non availability of the decisions of the Tribunal and/or the Refugee Appeals Authority in cases other than the Applicants' is not a failure to recognise either:-
(a)  a right of access to the courts to enforce his or her legal and constitutional	rights; or 
(b)  in dealing with applications for refugee status or asylum or right to fair procedures and to the application of natural and constitutional justice.
5. The contents of the form prescribed in the Third Schedule to the Regulations, would if the event arose enable a court upon review to ascertain the material upon which the decision was reached, thus meeting the criterion determined by the Supreme Court in The State (P&F Sharpe Limited-v- Dublin County Council [1989]I.R. 701; [1989] I.L.R.M. 565.
6. In my judgment the appropriate standard of proof in this case is that set out in Mass Energy Limited -v- Birmingham City Council, [1994] Enr.L.R. 298 (at 307/8) and Gorman and others -v- The Minister for the Environment and others, (unreported 7/12/2000 per Kelly J.) and as referred to in PB&L -v- The Minister for Justice Equality and Law Reform and others [2002] 1 I.R.L.M. 16 
7. The case of Lord -v- Master James Flynn and another (unreported 14th May 1999, per Geoghegan J.)  cited by the Applicants does not support their contention.  The relief sought therein was refused by Geoghegan J. and not only did he consider the privileged information and the nature of the bills involved, but went no further than suggesting that the Taxing Master might reconsider their general ruling.  Indeed in the instant case the Applicants solicitors own correspondence pleads an element of privilege in respect of another client of their office. 
8. I refuse the application.
END OF JUDGMENT