The applicants requested previous decisions from the Refugee Appeals Tribunal prior to their hearings in order to better prepare their cases. The Tribunal refused to furnish the applicants with any of its previous decisions on the basis, inter alia, that there was no requirement for the Tribunal to furnish previous decisions under Section 19(4A) of the Refugee Act 1996. That statutory provision states, inter-alia, that “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.” The applicants claimed they had a constitutional right to access previous decisions.
The High Court had held with the applicants finding both that the statutory provision, despite its negative wording, impliedly imposed a correlative positive obligation and that the applicants had a right to access previous decisions by virtue of natural justice. The respondents appealed the matter to the Supreme Court.
The Supreme Court held that the Tribunal’s system was unfair and in breach of the Constitutional requirement of fair procedures and that appellants ought to be afforded reasonable access to relevant previous decisions. The Court based its judgment on the constitutional entitlement to natural justice and fair procedures and not on the statute. The Court stated that it is of the nature of refugee cases that the problem for an appellant in his or her country of origin is of a kind generic to that country or the conditions in that country and that where there are such problems fair procedures require some reasonable mechanisms for achieving consistency in both the interpretation and the application of the law in similar cases. The Court held that if relevant previous decisions are not available to an appellant, he or she then will have no way of knowing whether there is such consistency.
The Court stated that the Tribunal is not bound by previous decisions but that consistency of decisions based on the same objective facts may, in appropriate circumstances, be a significant element in ensuring that a decision is objectively fair rather than arbitrary.