Pat Rabbitte (Dublin South West, Labour)
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I thank the Cathaoirleach for permitting me to raise this important matter. I am surprised the Minister for Justice, Equality and Law Reform, Deputy Brian Lenihan, has not acted on the scandalous allegations that have come into the public domain concerning the manner of discharge of its functions by the Refugee Appeals Tribunal. It has emerged that three eminent members of the tribunal have caused serious questions to be raised about the manner in which its chairman, John Ryan, BL, conducts its business and in particular how he allocates files for adjudication. At a minimum, one would have expected the Minister to have informed this House of his assessment of the affair and whether action on his part is warranted.

The facts appear straightforward. In a judicial review application in March 2006, seven solicitors practising in the area of refugee law made sworn affidavits that a particular tribunal member, Mr. Nicholson, had never been known to decide a case in favour of an asylum seeker. The tribunal itself conceded in the High and Supreme Courts that Mr. Nicholson had not allowed a single appeal from an asylum seeker during the period from 1 January 2002 to 30 June 2004. Apparently, he was the tribunal's highest earner during the same period.

In the case known as the Nyembo case heard before the Supreme Court, the tribunal chairman had asserted that "the record of [Mr. Nicholson] is not at variance with other members of [the Tribunal]". When Mrs. Justice Denham remarked there was no evidence to vindicate this assertion, three senior members of the tribunal claimed that the record of Mr. Nicholson was "markedly at variance" with the record of other members. However, before the High Court could adjudicate in the matter, the tribunal settled the case, thus preventing the facts emerging. It appears the dissenting members specifically alleged that files were allocated by the chairman on the basis of members' record of rejecting appeals. There could scarcely be a more serious allegation to make against the chairman of a body charged under statute to act independently in the discharge of his functions.

It is also claimed that the chairman, John Ryan, managed the tribunal's defence of these court proceedings in collaboration with James Nicholson alone and refused to convene a meeting of the full membership to enable them to consider the case and instruct their legal representatives. It is now claimed that the refugee legal service is reviewing the decisions of another member of the tribunal who happens to be the second highest earner at the tribunal.

The Minister's response to these extraordinary claims is to keep his head down and, amazingly, to provide expressly for the continuation in office of Mr. Ryan in the recently published Immigration, Residence and Protection Bill 2008. The reason the Minister should feel it necessary to stitch into law the reappointment of Mr. Ryan as distinct from exercising his right in the normal way to appoint a chairman betrays a mind-set that is deeply troubling and that indicates he has become the captive of his Department. Are the Minister and his Department so enamoured of Mr. Ryan's modus operandi that they hope to enshrine his appointment in law?

The Nyembo case speaks for itself. A man, who has since quietly resigned, heard almost 1,000 cases in the relevant period and rejected virtually all of them. Three members, more senior than the chairman, have made serious assertions about the functioning of the tribunal and, most seriously, allege that assignment of cases is based on the individual history of adjudication of the tribunal member.

Thus far, the Minister has ignored the serious issues to which the Nyembo case gives rise. I am delighted the Minister is present to respond to these cases in person, rather than sending the routine script that is churned out by Departments for this event in the House these days. I am concerned that our public service, when defending its record before the courts, should be exposed in this manner. The Minister ought to be concerned about the signal this sends out.

Has the stage been reached in which one cannot rely on the integrity of the public service to tell the truth before the courts? How are the public to have confidence in the integrity of our system of administrative tribunals? I thank the Cathaoirleach for permitting me to raise this issue and am glad the Minister is present in person to make a pertinent reply because there is widespread concern among members of his own profession, among solicitors and among organisations working with asylum-seekers, concerning what has entered the public domain in recent weeks with regard to the independent discharge of functions by the Refugee Appeals Tribunal.

Brian Lenihan Jnr (Dublin West, Fianna Fail)
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I thank Deputy Rabbitte for giving me the opportunity to respond in the House this evening to a matter which has generated some media comment in recent days. The House is the appropriate venue in which to discuss this matter.

The Refugee Appeals Tribunal was established in November 2000 and Mr. John Ryan was appointed its second chairman in an interim capacity on 3 December 2003. Following an open, publicly advertised national competition, Mr. Ryan was selected as full-time chairman by the Public Appointments Service with effect from 13 September 2005.

The tribunal hears appeals on negative recommendations of the Office of the Refugee Applications Commissioner in respect of applications for refugee status in the State. Since its establishment, the tribunal and its members have carried out a substantial job of work for the State based on their statutory remit. The tribunal is a statutory independent body established under the Refugee Act 1996. Its members are independent in the performance of their functions and in the decisions that they make.

The role of the chairperson of the tribunal, as provided for in the 1996 Act is, among other things, to allocate the work of the tribunal and to ensure its business is managed efficiently and disposed of as expeditiously as may be in a manner consistent with natural justice. His or her role also is to avoid undue divergences in the application of the law in cases by members, as provided for in the 1996 Act. Ensuring consistency in the application of the law in the refugee area is a critical aspect of the chairman's role. The chairman has no role in determining the final decisions of members.

The allocation of tribunal business is conducted by the chairperson in accordance with the law. In allocating cases, the chairperson has regard to a variety of matters such as the availability of members, the speed or slowness of members in delivering the decisions, whether members have specialised training in dealing with minors or have experience in dealing with other vulnerable applicants or applicants of particular nationalities. The chairperson has assured me that the allocation of cases is not influenced by the affirmation rates of particular members.

It has been asserted — but not by Deputy Rabbitte this evening — that an average of 25% of cases in 2005 were decided in favour of asylum seekers. This is not correct as the figure was 12.8%. In 2007, this figure fell to 10.2%, with the overall figure in respect of the period 2001 to 2007 coming in at 16.2%. In other words, the affirmation rate for the entire period was 83.8%. Last year saw the highest affirmation rate in the period, with 89.8% of decisions of the commissioner affirmed.

The House should be aware of some of the realities we are dealing with in the asylum area. Last year, only 8.4% of all applications received at the Office of the Refugee Applications Commissioner came through legitimate points of entry to the State. A further 5.6% of all applications in 2007 were made at prisons. The balance, in the main, simply turn up in the commissioner's office, having avoided the official entry points. It is also interesting to note that in 2007, a total of 2,500 of the 3,985 asylum applicants claimed to have arrived in Ireland with no travel documents, with approximately 1,000 of them claiming to have arrived by air.

The reality is that more than 90% of applicants do not show up at official entry points and 90% of all applications turn out to be unfounded. It should be of little surprise, therefore, that a significant number of members of the tribunal have high affirmation rates. The high affirmation rates of members are also a reflection of the robust and high quality investigations conducted at first instance by the Office of the Refugee Applications Commissioner.

Deputy Rabbitte referred to recent legal action alleging bias by Mr. James Nicholson, a former member of the tribunal. I do not intend to comment in detail on the legal issues involved in this Supreme Court case as it would be inappropriate to do so. However, I can point out that the chairman of the tribunal totally rejects all the allegations made. I am advised that the chairman did not mislead the courts in documentation filed by him, as is alleged. A report in yesterday's The Irish Times stated that the Legal Aid Board had written to the Refugee Appeals Tribunal asking it to review all the cases decided by its former member, James Nicholson. This report is misleading in a number of respects. The signatory to the letter is in fact an official of the Legal Aid Board reporting to the chief executive and not the chairman of the board, as was reported. I am also told that a number of the policy issues referred to in the letter as reported in The Irish Times have yet to be discussed at board level. This was confirmed to my Department by the chief executive of the Legal Aid Board this afternoon.

The UNHCR is heavily involved in training within the asylum process, including the Refugee Appeals Tribunal. Deputy Rabbitte might recall the comments made by a former UNHCR representative to Ireland who was quoted as saying that Ireland is now a model for the new member states of the European Union and that we have a system which in many respects is one of the best in Europe.

The Refugee Appeals Tribunal is to be replaced under the Immigration, Residence and Protection Bill 2008 by the protection review tribunal. There has been some criticism about how that is to be done but I will deal with those criticisms and all the other points raised this evening during Committee Stage debate on the Bill, which will take place early in the next session. That, to my mind, is the proper place to deal with this matter and a full discussion can take place at that time.

It is regrettable that Deputy Rabbitte has sought to politicise the work of a public servant who is doing his statutory duty. It is in nobody's interests, least of all those who come to this country seeking the sanctuary of the State, that the work of this important and independent body should be so traduced. I do, however, share the concerns expressed by Deputy Rabbitte about a divergence of opinions among the members of the tribunal.