Appeal to Tribunal

Appeal to Tribunal

An applicant may, in accordance with regulations appeal to the Tribunal against—

• a recommendation,  that an applicant should not be given a refugee declaration, or
• a recommendation, , that an applicant should be given neither a refugee declaration nor a subsidiary protection declaration.

An appeal shall be brought by notice in writing—

• within such period from the date of the sending to the applicant of the notification as may be prescribed,
• specifying, in writing, the grounds of appeal and indicating whether the applicant wishes the Tribunal to hold an oral hearing for the purpose of his or her appeal.
• On receipt of a notice the Tribunal shall transmit a copy of the notice to the Minister and notify the High Commissioner of the making of the appeal.

The Minister may, in consultation with the chairperson and having regard to the need to observe fair procedures, prescribe procedures for and in relation to appeals including the holding of oral hearings.

Oral hearing

The Tribunal shall hold an oral hearing for the purpose of an appeal where—

• the applicant has requested this in the notice or
• it is of the opinion that it is in the interests of justice to do so.

An applicant may withdraw a request re by giving notice, which shall set out the reasons for the withdrawal, to the Tribunal not later than 3 working days before the hearing date. The Tribunal, on receipt of a notice under paragraph (a), shall consider, having regard to the interests of justice, whether to hold an oral hearing.

Except where otherwise provided, an appeal may be determined without an oral hearing. An oral hearing shall be held in private.

The High Commissioner may be present at an oral hearing for the purpose of observing the proceedings. In conducting an oral hearing, the Tribunal shall—

• permit the applicant to be present at the hearing and present his or her case to the Tribunal in person or through a legal representative,
• permit an officer of the Minister or another person nominated by the Minister to be present at and participate in the hearing and, in person or through a legal  representative,  explain  to  the  Tribunal  the recommendation of the international protection officer that is the subject of the appeal,
• here necessary for the purpose of ensuring appropriate communication during the hearing, provide the applicant with the services of an interpreter,
• conduct the oral hearing as informally as is practicable, and consistent with fairness and transparency,
• ensure that the oral hearing proceeds with due expedition, and
• allow for the examination and cross-examination of the applicant and any witnesses.

Where the notice of appeal includes a request to the Tribunal to direct the attendance of a witness before the Tribunal, the Tribunal shall, in respect of each such witness, determine whether he or she should be directed to attend before the Tribunal.

Hearing Matters

In making a determination the Tribunal shall have regard to the nature and purpose of the evidence proposed to be given by the witness as indicated in the notice of appeal.

For the purposes of an oral hearing, the Tribunal may—

• direct in writing any person, other than the Minister or an officer of the Minister, whose evidence is required by the Tribunal to attend before the Tribunal on a date and at a time and place specified in the direction and there to give evidence and to produce any document or thing in his or her possession or control specified in the direction,
• direct any such person to produce any specified document or thing in his or her possession or control,
• give any other directions for the purpose of an appeal that appear to the Tribunal to be reasonable and just, and
• take evidence on oath or on affirmation and for that purpose may cause persons attending before it to swear an oath or make an affirmation.

The above shall not apply to a document or thing relating to information which the Minister or the Minister for Foreign Affairs and Trade directs (which he or she is hereby empowered to do) that the information be withheld in the interest of national security or public policy (“ordre public”).

A witness whose evidence has been or is to be given before the Tribunal shall be entitled to the same privileges and immunities as a witness in a court.

Where information has been supplied to the Minister, an international protection officer, a Department of State or other branch or office of the public service by or on behalf of the government of another state subject to an undertaking (express or implied) that the information would be kept confidential, the information shall not be produced or further disclosed, other than in accordance with the undertaking, or with the consent of the other state.

Accelerated appeal procedures in certain cases

Where the report includes certain findings in relation to the application, including

• safe country of origin,
• no need for international protection,
• failure without reasonable cause to make application at earliest opportunity,
• inconsistent contradictory improbable or insufficient representations
• submission of irrelevant matters

the following modifications shall apply in relation to an appeal  by the applicant concerned—

• the appeal shall be brought by notice in writing within such period, which may be a shorter period than that otherwise prescribed from the date of the sending to the applicant of the notification under, as may be prescribed,
• the Tribunal, unless it considers it is not in the interests of justice to do so, shall make its decision in relation to the appeal without holding an oral hearing, and
• the notification shall include a statement informing the applicant concerned of the effect of the modifications referred to.

Appeal to Tribunal: provision of information

The Minister shall, for the purposes of an appeal, furnish the Tribunal with copies of the documents provided to the applicant. The Tribunal may, for the purposes of its functions under the 2015 Act, request the Minister to make such further inquiries and to furnish the Tribunal with such further information as the Tribunal considers necessary within such period as may be specified by the Tribunal.

The Minister shall furnish the Tribunal with observations in writing concerning any matter arising on the grounds of appeal whenever so requested by the Tribunal and a copy of such observations shall be furnished to the applicant concerned and his or her legal representative (if known).

Withdrawal and deemed withdrawal of appeal to Tribunal

An applicant may, at any time before the making by the Tribunal of its decision in relation to the appeal, withdraw his or her appeal to the Tribunal by sending notice of withdrawal to the Tribunal.

Where an applicant fails, without reasonable cause, to attend an oral hearing at that date and time fixed for the hearing then, unless the applicant, not later than 3 working days from that date, furnishes the Tribunal with an explanation for not attending the oral hearing which the Tribunal considers reasonable in the circumstances, his or her appeal shall be deemed to be withdrawn.

Where—

• in the opinion of the Tribunal an applicant has failed, or is failing, in his or her duty to co-operate, or
• the Minister notifies the Tribunal that he or she is of the opinion that the applicant is in breach of certain residence requirements,

the Tribunal shall send to the applicant or his or her legal representative (if known) written notice of that opinion. The Tribunal, shall also—

• require the applicant to confirm in writing, within 10 working days of the date of the notice, that he or she wishes to continue with his or her appeal,
• remind the applicant of his or her duty  to co-operate and to comply with any requirements that have been or may be imposed and
• include a statement of the consequences.

Consequences of  Withdrawal

The consequences) are that an applicant’s appeal shall be deemed to be withdrawn, and that the below consequences shall apply accordingly, if the applicant—

• does not furnish the confirmation referred to or
• having furnished such a confirmation, in the opinion of the Tribunal or, as the case may be, in the opinion of the Minister, fails or continues to fail to comply with any of the obligations referred to.

Where an appeal is withdrawn or deemed to be withdrawn pursuant to these provisions

• any consideration of that appeal by the Tribunal shall be terminated,
• the ordinary provisions shall not apply in respect of that appeal,
• decision provisions shall apply,

The Tribunal, as soon as practicable, shall—

• notify the applicant and his or her legal representative (if known) of the fact that the appeal is withdrawn or deemed to be withdrawn and of the reasons for it,
• notify the Minister of the fact that the appeal is withdrawn or deemed to be withdrawn and of the reasons for it, and
• inform the High Commissioner of the fact that the appeal is withdrawn or deemed to be withdrawn.

The notification shall, when sent to the applicant, be in a language that he or she may reasonably be supposed to understand, where—

• he or she is not assisted or represented by a legal representative, and
• legal assistance is not available to him or her.

Decision of Tribunal on appeal

Before reaching a decision, the Tribunal shall consider the following:

• the notice of appeal;
• all material furnished to the Tribunal by the Minister that is relevant to the decision as to whether the applicant should be given a refugee declaration or, as the case may be, a subsidiary protection declaration;
• the recommendation under appeal;
• any observations made to the Tribunal by the Minister or the High Commissioner;
• where an oral hearing has been held, the evidence adduced, and any representations made at that hearing;
• such other matters as the Tribunal considers relevant to the appeal.

In relation to an appeal regarding refusal of a refugee declaration the Tribunal may decide to—

• affirm the recommendation that the applicant should not be given a refugee declaration, or
• set aside the recommendation that the applicant should not be given a refugee declaration and recommend that the applicant be given a refugee declaration.

Decisions on Appeal

In relation to an appeal against the Tribunal against refusal of a refugee declaration and subsidiary protection may decide to—

• affirm the recommendation that the applicant should be given neither a refugee declaration nor a subsidiary protection declaration,
• set aside the part of the recommendation that recommends that the applicant should not be given a refugee declaration and recommend that the applicant be given a refugee declaration, or
• affirm the recommendation that the applicant should not be given a refugee declaration and set aside the part of the recommendation that recommends that the applicant should not be given a subsidiary protection declaration and recommend that the applicant be given a subsidiary protection declaration.

decision of the Tribunal and the reasons for it shall be communicated by the Tribunal to the applicant concerned and his or her legal representative (if known), and the Minister.

Most decisions of the Tribunal, adversely affecting the application shall be communicated to the High Commissioner. The Tribunal shall furnish the applicant concerned and his or her legal representative (if known), and the High Commissioner whenever so requested by him or her, with—

• copies of any reports, observations, or representations in writing or any other document furnished to the Tribunal by the Minister, copies of which have not been previously furnished to the applicant and his or her legal representative (if known), or as the case may be, the High Commissioner, and
• an indication in writing of the nature and source of any other information relating to the appeal which has come to the notice of the Tribunal in the course of an appeal.