THE HIGH COURT
			    HC 286/04
JUDICIAL REVIEW
                    							         [2004 No. 244 J.R.]
BETWEEN

ABDENOUR MESSAOUDI

Applicant
 
AND

THE CHAIRPERSON OF THE REFUGEE APPEALS TRIBUNAL, MR. JOSEPH BARNES SITTING AS THE REFUGEE APPEALS TRIBUNAL, MR. JAMES NICHOLSON SITTING AS THE REFUGEE APPEALS TRIBUNAL, AND THE MINISTER FOR JUSTICE, EQUALITY AND LAW REFORM

Respondents 
AND
[2004 No. 284 J.R.]

BETWEEN

GRACE EDOBOR  
Applicant
 
AND

THE CHAIRPERSON OF THE REFUGEE APPEALS TRIBUNAL, MR. JOSEPH BARNES SITTING AS THE REFUGEE APPEALS TRIBUNAL, MR. BEN GARVEY SITTING AS THE REFUGEE APPEALS TRIBUNAL AND THE MINISTER FOR JUSTICE, EQUALITY AND LAW REFORM

Respondents

JUDGMENT of Ms. Justice Finlay Geoghegan delivered on the 29th day of July, 2004. 

PRELIMINARY

	This judgment is being given in two separate applications for judicial review which I heard contemporaneously.  It was agreed on behalf of the parties that it would be appropriate that I give one judgment.  The issues raised in each application are almost identical. The first, second and fourth named respondents are identical in each.  The third named respondents are different but acting in a similar capacity and only consequential relief is sought against the third named respondents.  
	In each application the first relief sought is an order of mandamus compelling the second named respondent to make and give a decision in an appeal brought by the applicant to the Refugee Appeals Tribunal (“the Tribunal”).  In each application an order of certiorari is sought of a decision of the first named respondent who is the Chairperson of the Tribunal.  The decision was to reassign the hearing and determining of the applicant’s appeal to a member of the Tribunal other than the second named respondent.  The decision taken in respect of each applicant appears to have been taken for the same reasons.  In respect of these applicants the decision was to assign the appeal to the third named respondent in each application.  In each application an order of prohibition and other consequential relief is sought against the third named respondent.  
	In Ms. Edobor’s application an order was made by Kearns J. on the 1st April, 2004, granting leave to apply for judicial review for the reliefs set out above on the grounds in the statement of grounds.  An order was also made staying the proposed oral hearing before the third named respondent pending the determination of this application.  In Mr. Messaoudi’s case I made an order on the 21st April, 2004, granting leave.  The third named respondent is not proceeding with the proposed oral hearing pending the determination of this application. 
Background facts
	Mr. Messaoudi is a national of Algeria who arrived in the State in May, 2002, and claimed asylum.  The normal procedure was followed.  A report and recommendation was issued on behalf of the Refugee Applications Commissioner that he not be granted asylum within the State.  He appealed that recommendation to the Tribunal through his then solicitors, the Refugee Legal Service, by letter of the 17th December, 2002.  By letter dated 5th March, 2003, he was informed through his solicitors that an oral hearing had been scheduled on the 25th March, 2003, before the second named respondent as the “Member of the Tribunal”.  That date was then changed to the 15th May, 2003.  On that day an oral hearing was held before the second named respondent.  The applicant was represented, gave evidence and was cross-examined. 
	Thereafter the applicant heard nothing further from the Tribunal until his solicitors received a letter dated 5th March, 2004.  That letter is in standard form similar to the two previous letters received in relation to oral hearings save that it states “your client’s oral hearing is rescheduled as follows”.   In the earlier letters the analogous statement read “your client’s oral hearing is scheduled as follows”.  The rescheduling was for the 24th March, 2004, and it was indicated that the third named respondent was the “Member of the Tribunal”.  No explanation was given for the rescheduling of the oral hearing.  
	In response to this letter the Refugee Legal Service wrote to the Tribunal on the 8th March stating, “We refer to a notification dated 5 March 2004 to the effect that this case is to be rescheduled for hearing.  Please note that this case has already been heard before Joe Barnes and a decision is awaited.”  
	The Refugee Legal Service received a reply dated 12th March, 2004, from W. Delaney of the Scheduling Unit of the Tribunal, the operative part of which stated:
		“The hearing before Mr. Joe Barnes took place on the 15 May 2003. 

	At a recent meeting between representatives of the Refugee Appeals Tribunal concern was expressed by representatives of the Refugee Legal Service at the inordinate delay between the hearing of an Appeal and a Decision being issued.  We shared that concern.  

	The Chairperson has considered the matter and has decided pursuant to the Refugee Act 1996 (as amended) and in particular paragraphs 13 and 14 of the Second Schedule to reassign this case.  The Chairperson has taken into account the delay that has elapsed since the hearing of the case and the likelihood of the Member being unable to issue a Decision within an acceptable time frame”.   
	In response to this the Refugee Legal Service wrote further to the Tribunal on the 16th March in the following terms: 
	“We refer to your letter of 12 March 2004 and note the contents thereof particularly ‘the likelihood of the Tribunal member being unable to issue a decision within an acceptable time frame’.
	In this regard we note that Mr. Barnes has issued a number of decisions recently in relation to outstanding cases.  A decision was received by this office yesterday in relation to case number 69/29672/01 which decision is dated 5 March 2004.  The hearing in that particular case took place on 8 May 2003 which is only a week apart from Mr. Messaoudi’s hearing.  We would also refer to a decision which has recently issued in the case of 69/29920/01 A and B, the hearing of which took place in September of 2002. 
	In the circumstances can you please confirm why this particular case is being reassigned to another Tribunal member for re-hearing while decisions are being issued in a number of other cases. 
	Pending receipt of your response and us having an opportunity to give it proper consideration can you please confirm by close of business today that the scheduled rehearing on 24 March 2004 will be deferred. 
While we note what you say in relation to the Chairman’s power pursuant to the Refugee Act 1996 (as amended) we do no necessarily accept that the powers have been appropriately extended in this case”.   
	No response appears to have been received from the Tribunal to that letter.  Thereafter the applicant through his present solicitors issued a notice of motion on the 23rd March, 2004 ,returnable for the 29th March seeking leave to apply for judicial review and seeking, inter alia, an injunction preventing the hearing scheduled for the 24th March 2004.  It is not clear whether orders were made or undertakings given but nothing turns on this.  Notwithstanding the issue of the notice of motion, ultimately the application for leave proceeded on an ex parte basis without objection from the respondents.  Orders had been granted already in other proceedings seeking similar relief on similar grounds.  
	The respondents are jointly represented and a replying affidavit of John English sworn on the 7th May, 2004, and a notice of opposition dated 21st May, 2004, have been filed.  I will return to the facts relied on therein.  

MS. EDOBOR
	Ms. Edobor arrived in the State in July, 2002, and applied for asylum.  Normal procedure was followed and a report and recommendation on behalf of the Refugee Applications Commissioner was issued on the 14th October, 2002, recommending that she be refused asylum in the State.  With the assistance of her then solicitors, the Refugee Legal Service, she lodged an appeal with the Tribunal on the 15th November, 2002.  An oral hearing took place before the second named respondent on the 20th March, 2003.  Ms. Edobor was represented by counsel and a Refugee Legal Service caseworker, gave evidence, and was cross-examined.  She heard nothing further in relation to her appeal from the Tribunal until the Refugee Legal Service received a standard form letter dated 16th March, 2004, informing them that “your client’s oral hearing is rescheduled as follows”.  The rescheduling was for Monday 29th March 2004 before the third named respondent.  Again no explanation was given for the rescheduling.  No reference was made to the fact that there had been an earlier oral hearing before the second named respondent.  That hearing was then adjourned to the 1st April, and on the 30th March the Refugee Legal Service wrote on her behalf to the third named respondent referring to two cases already before the High Court where injunctive relief had been granted preventing the rehearing of cases already heard by the second named respondent before a different Tribunal member and requesting that the matter be adjourned, and indicating that in default of same an application for leave to issue judicial review would be commenced.  In response an undated letter which is stated to have been received also on the 30th March, 2004, was sent to the Refugee Legal Service by Ms. May Maguire, Assistant Principal Officer, which is in identical terms to the letter of the 12th March, 2004, from W. Delaney set out above, save that it refers to the fact that the hearing before Mr. Barnes took place on the 20th March, 2003, and the final paragraph reads: 
	“Your client’s case has now been reassigned to Tribunal member Mr. Ben Garvey and the reconvened hearing will proceed as notified on Thursday 1st April 2004 at 3 p.m.” 
	An application for leave to apply by way of judicial review was brought and Kearns J. granted leave and stayed the oral hearing on the 1st April 2004.
	A statement of opposition dated 5th May, 2004, and an affidavit of John English have been filed. 
	The only factual differences in Ms. Edobor’s application as compared with that of Mr. Messaoudi is that the oral hearing before the second named respondent was in March, 2003 rather than May, 2003.  In addition, Ms. Edobor asserts that she would be prejudiced if she now had to give evidence again in relation to the facts which she asserts constitute persecution and explains that the sense of unease created by the persecution suffered by her in Nigeria prior to leaving and set out in her affidavit has “fortunately somewhat subsided for me”.  She states that she has begun to make a new life in Ireland and that ,whilst her life and persecution in Nigeria and the reasons she left still haunt her, that her memory of the persecution is less vivid.  

ISSUES
	Having regard to the statement of grounds, notices of opposition and submissions made at the hearing, the issues which the Court has to decide appear to be: 
1.	Was the second named respondent under a duty to the applicants at any time to make a decision on his or her appeal or is the only such duty on the Tribunal?  
2.	If so is or was he in breach of such duty?  
3.	The limits to the first named respondent’s power to reassign appeals to another member of the Tribunal after an oral hearing has been held. 
4.	On the facts of each of these applications, has the first named respondent acted ultra vires or intra vires in deciding to reassign the respective appeals? 
5.	What, if any, are the reliefs to which either applicant is entitled? 

Second named respondent’s duty to applicants
	Counsel for the applicants submits that, following the holding of the oral hearings, the second named respondent was and is under a duty to determine each appeal and give a decision.  
	Counsel for the respondents submits that the legislative scheme when properly construed only imposes such an obligation on the Tribunal and that the second named respondent does not owe any such duty to the applicants.  It is conceded that the second named respondent may owe a duty to the Tribunal to determine the appeals. 
	In considering these submissions it is necessary first to consider the status in law of the Tribunal.  The Tribunal was established by s.15 of the Refugee Act, 1996, (as amended by s. 11(1)(j) of the Immigration Act, 1999) which provides:
	“(1) On the establishment day there shall stand established a Tribunal to be known as the Refugee Appeals Tribunal (in this Act referred to as “the Tribunal”) to consider and decide appeals under section 16 of this Act. 
	(2) The Tribunal shall be independent in the performance of its functions. 
	(3) The provisions of the Second Schedule shall have effect in relation to the Tribunal.” 
	Paragraph 1 of the second schedule provides: 
“1. The Tribunal shall consist of the following members – 
(a)	a chairperson, and 
(b)	Such and such number of ordinary members as the Minister, with the consent of the Minister for Finance, considers necessary for the expeditious dispatch of the business of the Tribunal, 
each of whom shall have had not less than 10 years’ experience as a practising barrister or practising solicitor before his or her appointment.”
The Act of 1996 (as amended) contains no express provision as to the status in law of the Tribunal.  This has been done in relation to other bodies, including decision-making bodies established by statute.  Section 3 of the Local Government (Planning and Development) Act, 1976, provides for the establishment of “a body to be know as An Bord Pleanála”.  In the schedule to that Act it is provided at paragraph 1:
	“The Bord shall be a body corporate with perpetual succession with power to sue and be sued in its corporate name and to acquire hold and dispose of land.”
	In the absence of any such express provision the intention of the Oireachtas as to the legal status of the Tribunal must be derived from the relevant provisions in the Act of 1996 (as amended).  Byrne and McCutcheon, The Irish Legal System, 4th Ed., (Dublin, 2001) state at para. 1.29: 
“The law recognises different forms of legal personality.  A legal person is an individual or entity to which, for the purposes of the law, the character of being a ‘person’ is attributed.  It is obvious that human beings possess this capacity and they are known as natural persons.  In addition, however, the law recognises artificial entities which possess legal personality.  The most common such entity is a corporation which may be created by one of a number of devices.  . . .   A second device is the creation of individual corporations by legislation…”
Murdoch’s Dictionary of Irish Law, 3rd Ed. (Dublin, 2000), defines a corporation as “a body of persons having in law an existence and rights and duties distinct from those of the individual persons who from time to time form it.”  
	I have concluded that the intention of the Oireachtas to be derived from the Act of 1996 (as amended) and in particular ss.15 and 16 and the second schedule thereto is that the Tribunal is to be a legal person with rights and duties distinct from its members.  Hence I accept that the Tribunal and the second named respondent are two separate persons. 
	However, the fact that the Tribunal is a legal person distinct from its members does not determine the issue as to any duty owed by the second named respondent to the applicants.  There is a further concept established by the Act of 1996.  It is that of a “division” of the Tribunal.  Paragraph 11 of the second schedule provides: 
	“11. Whenever the Tribunal consists of more than one member, it shall be grouped into divisions each of which shall consist of one member.”
Paragraphs 13, 14, 15 and 16 are also relevant and provide: 
“13. The chairperson shall assign to each division the business to be transacted by it. 
14. The chairperson shall endeavour to ensure that the business of the Tribunal is managed efficiently and that the business assigned to each division is disposed of as expeditiously as may be consistent with fairness and natural justice. 
15. The chairperson may, if he or she considers it appropriate to do so in the interest of the fair and efficient discharge of the business of the Tribunal, assign classes of business to each division having regard to the following matters: 
		(a) the grounds of the appeals set out in the notices of appeal, 
		(b) the country of origin of the applicants, 
		(c) any family relationship between applicants, 
(d) the ages of the applicants and, in particular, of persons under the age of 18 years in respect of whom applications are made.    
	(e) 	the provision of this Act pursuant to which the appeals are made. 
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”. 
	What may constitute “business” must be derived from the statutory function of the Tribunal under s.15 “to consider and decide appeals under s.16 of the Act”. 
	It is common case that the appeal made by each of the applicants was assigned to the division of the Tribunal constituted by the second named respondent.  The only reasonable construction on the Act and facts is that the business which was assigned to the second named respondent was to “consider and decide” the appeal of each applicant. 
	The intention of the statutory scheme so established appears to be that once an appeal is assigned to a member of the Tribunal that person acting as a division of the Tribunal is to discharge the statutory function and duty of the Tribunal to consider and determine the appeal.  Further, in doing so he or she has all the statutory powers and duties conferred on the Tribunal for the purpose of considering and determining appeals. 
	Section 16 of the Act of 1996 sets out the essentials of the procedure to be followed where an appeal is made to the Tribunal.  Section 16(3) obliges the applicant to indicate whether he or she wishes the Tribunal to hold an oral hearing for the purposes of his or her appeal.  Subsection 10 obliges the Tribunal on receipt of such a notice to hold an oral hearing for the purposes of an appeal.  Subsection 16 obliges the Tribunal to consider inter alia the evidence adduced and any representations made at an oral hearing before deciding the appeal.  
	Considering the concept of the assignment of business to a “division” of the Tribunal in the context of the procedural scheme established by s. 16 of the Act of 1996, I have concluded that where an appeal is assigned to a member of the Tribunal in which an application for an oral hearing has been made and that member conducts the oral hearing, he has commenced or entered up a consideration of the appeal and is as a division of the Tribunal obliged to determine the appeal.  In conducting the oral hearing and determining the appeal as a division of the Tribunal such member is discharging the statutory duty of the Tribunal and should probably be considered to be acting as the Tribunal.  There is nothing in s. 16 of the Act nor the second schedule thereto which suggests a distinction between a division of the Tribunal and the Tribunal itself for this purpose.  Accordingly I have concluded that the second named respondent having conducted an oral hearing in the appeals of each of the applicants became, as a division of the Tribunal, obliged to determine their respective appeals.  That obligation must be an obligation owed to the applicant.  I can see no basis for a conclusion that it is an obligation owed only to the Tribunal even if at the relevant time the member acting as a division of the Tribunal were to be considered to be a different legal person from the Tribunal.  It appears to me that the second named respondent is at that moment acting as the Tribunal discharging its functions and duties owed to the applicant.  
	Counsel on behalf of the respondent did not dispute that the Tribunal owes a duty to determine the appeal within a reasonable period of time and that such reasonable period of time had expired prior to the decision of the first named respondent to reassign these appeals to the two third named respondents respectively.  Accordingly I must conclude that the second named respondent was at least prior to such decision in breach of duty to the applicants.  Whether he so continues depends on the validity of the decision made.  

Power to reassign. 
	The more difficult question is the proper limits of the first named respondent’s power to reassign appeals to another member of the Tribunal after an oral hearing has been held.  There was substantial agreement on the relevant principles.   
	It was common case that a power to reassign even after an oral hearing is implicit in the power to assign in para. 13 of the second schedule to the Act of 1996.  There was also agreement that such power must be construed and exercised in accordance with the principles of constitutional justice, which includes fair procedures, as determined by the Supreme Court in East Donegal Co-operative Society v. The Attorney General [1970] I.R. 317. 
	It was also agreed that s. 16 (when construed in accordance with the principles of constitutional justice and fair procedures) requires that the division of the Tribunal which determines the appeal also conducts the oral hearing.  Further fair procedures require that an applicant should normally only have to participate in one oral hearing.  
	The point of disagreement between counsel for the respective parties was the application of these principles to the facts of these applications. 
	Counsel for the applicants submitted that in circumstances such as this where the relevant member of the Tribunal remains a member of the Tribunal and is continuing to determine appeals as a division of the Tribunal, there must exist a reason as to why the second named respondent cannot now determine the appeals of the applicants before para. 13 of the second schedule gives the chairperson an implicit power to reassign the appeal with the consequent necessity of the applicant participating in a further oral hearing.  It was submitted that on the facts of these applications no such power had arisen as the first named respondent has not given any reason for which the second named respondent is not now able to fulfil his obligation to determine the appeals of each of these applicants. 
	Counsel for the respondents submitted that para. 13 includes an implicit power and discretion to reassign appeals to a different division of the Tribunal even after the oral hearing.  It was submitted that the procedure established by the Act of 1996 did not include any concept analogous to a court having “seisin” of a case.  Accordingly it was submitted that the proper approach of this court in considering whether the decision of the first named respondent is or is not intra vires is to apply the “reasonableness” test in accordance with the principles set out in O’Keeffe v. An Bord Pleanála [1993] 1 I.R. 39.  It was further submitted in reliance upon the reasons set out in the affidavits of Mr. English that the decisions taken passed this test and accordingly are intra vires. 
	First, it appears to me that the scheme established by s. 16 and the Second Schedule to the Act of 1996 does include the concept of a particular member or division of the Tribunal having “seisin” of an appeal.  For the reasons already set out I have concluded that the procedural scheme established is that an appeal should be assigned before the oral hearing and that, once held, the member or division of the Tribunal before whom it is held has entered upon a consideration of the appeal and is obliged as a matter of law to determine the appeal.  That being so, in circumstances other than the death of the member or a person ceasing to be a member of the Tribunal, a decision to “reassign” includes both a decision to remove the appeal from the division of the Tribunal which has conducted the oral hearing and also a decision to assign it to a different member of the Tribunal.  It is the decision to “remove” which is crucial. Construing any such implicit power in accordance with the principles of constitutional justice and fair procedures, it appears that such implicit power will arise only either where the relevant member of the Tribunal is unable for physical or mental reasons to determine the appeal or is unable as a matter of law to issue a valid decision.  Illness may obviously give rise to the first of these.  Examples of the second might include the existence of a bias or conflict of interest or perceived predetermination of the issues.  In practice, where an order of certiorari of a decision of the Tribunal is made the matter is readmitted for hearing before another member of the Tribunal.  
	In reaching the above conclusion I have considered carefully the reliance placed by counsel for the respondents on paragraph 14 of the Second Schedule.  This provides: 
	“14. The chairperson shall endeavour to ensure that the business of the Tribunal is managed efficiently and that the business assigned to each division is disposed of as expeditiously as may be consistent with fairness and natural justice.”
	I do not consider that the above can be construed consistent with an applicant’s right to fair procedures so as to give the chairperson power to remove an appeal from a serving member of the Tribunal after he has conducted an oral hearing other than in the circumstances referred to above.  This paragraph rather appears to impose obligations on a chairperson in making assignments so as to avoid the type of situation which arose in relation to the second named respondent. 
	Accordingly, I have concluded that the Act, construed in accordance with the principles of constitutional justice, means: 
1.	A member of the Tribunal who conducts an oral hearing of an appeal  assigned to him or her enters on a consideration of the appeal and is obliged to determine the appeal. 
2.	Such obligation includes a duty owed to the applicant to determine the appeal within a reasonable time. 
3.	The chairperson has an implicit power to reassign an appeal to a second member of the Tribunal even after an oral hearing before a first member to whom it was assigned.
4.	Where the first member remains a member of the Tribunal such implicit power only arises where: 
1)	The first member is unable for physical or mental reasons to determine the appeal, or 
2)	the first member is unable as a matter of law to issue a valid determination.  
The remaining issue is whether, on the facts of these applications, such an implicit power had arisen at the time of the decision made by the first named respondent to reassign the applicants’ appeals. 
For the court to conclude that such an implicit power had arisen, it appears, at a minimum there would have to be evidence that the chairperson had formed the view that either of the above situations had arisen and that there were facts before him upon which he could have reasonably formed that view.  That is the minimum threshold required by the construction of the Act and the judicial review principles as set out in O’Keefe v. An Bord Pleanála [1993] 1 IR 39.  It is unnecessary, on the facts of these applications, to consider whether any higher threshold must be met.   
	The explanation given by Mr. English in the Affidavit sworn in Mr. Messaoudi’s proceedings for the decision taken is as follows: 
“3. The decision by the Chairperson of the Tribunal to re-assign a number of appeals that had been heard but not yet determined by Mr. Joseph Barnes, followed representations from the refugee Legal Service.  On 28th November 2003, there were, in respect of this particular member a backlog of decisions affecting 90 Applicants.  As of 31st December 2003, the backlog had been reduced to 85 Applicants.  This number was reduced to 62 in total as of the 4th February 2004 and to 58 as to the 27th February 2004.  During this four month period, there were a number of meetings between the Member and the Chairperson in an attempt to resolve the problem and although progress was made in the number of outstanding decisions, it was considered unsatisfactory by the Chairperson.
3.	At a meeting in February 2004, representatives of the Refugee Legal Service expressed concerns to the Tribunal at the length of time between the hearing of the cases and the issuing of decisions.  The Refugee Legal Service had particularly identified the problem relating to decisions following hearings before Mr. Joseph Barnes.  In fact, the Refugee Legal Service at the time acted on behalf of the Applicant. 
4.	Following this meeting, the Chairperson of the Tribunal decided to reassign cases from the Member in question to other Members of the Tribunal where the Refugee Legal Service has acted as solicitor and where there had been a substantial delay by the member in issuing his decision following the hearing.  In all, cases affecting 33 people were reassigned to three different experienced members of the Tribunal.  Some of the cases had been heard as far back as July and August 2002 by Mr. Barnes and the most recent had been heard in May 2003.  Where only six months had elapsed since the hearing of the case or where Mr. Barnes had substantially completed his decision, the chairperson did not reassign it. 
5.	In reaching this decision, the Chairperson of the Tribunal had regard to the obligation on the part of the Tribunal to dispose of appeals with due expedition consistent with fairness and natural justice.  Whilst some progress had been made by the particular Member during the four months up to February 2004, there remained a substantial backlog of cases that had to be addressed.  That has been done by reassigning appeals to other Members of the Tribunal, as aforesaid, in circumstances where they will be entitled to a full hearing de novo.  In this regard, notes taken by Mr. Barnes are not kept on the file and the Tribunal will, in accordance with its normal practice where cases are reheard following a successful judicial review, ensure that any notes on the file are removed. 
6.	In the circumstances, I say and believe that the Chairperson was entitled to consider the difficulty recognised by both the Tribunal and the Refugee legal Service and take action to remedy the problem.  Re-assigning cases in not a novel occurrence and has happened where a Member has died before giving a decision, where member have on occasion resigned from a case having part heard it and also of course where applications have successfully been made for judicial review.  For the Tribunal to function efficiently and fairly in accordance with natural justice and with due expedition, it has proved necessary in respect of certain appeals pending before Mr. Barnes to reassign them.  
	In Ms. Edobor’s case the affidavit sworn by Mr. English gives the same explanation for the decision taken and then seeks to deal with the prejudice alleged by Ms. Edobor.  In the course of dealing with that issue, Mr. English adds at paragraph 9 what I have concluded is a submission rather than a contemporaneous reason for which the chairperson took the decision. 
	Applying the principles which I have set out above to the facts as stated by Mr. English, it cannot be concluded that the second named respondent was at the time unfit for physical or mental reasons to make the determination in either of the applicant’s cases.  The facts as stated by Mr. English make clear that the second named respondent continues to serve as a member of the Tribunal and continues to decide appeals in which he has conducted an oral hearing.  
	The only potential issue is whether on the facts as stated by Mr. English it can be concluded that the first named respondent was of opinion that the second named respondent was unable to issue a valid determination in either of the applicant’s appeals and that there were facts upon which he could reasonably have formed that view.  
	Counsel for the respondent sought to rely upon a line of authority from the English Court of Appeal and the approach of the Immigration Appeals Tribunal in England and Wales as set out in the decision of the Court of Appeal in Sambasivam v. Secretary of State for the Home Department [2000] Imm AR 85. 

	It appears that in England rule 11(1) of the Asylum (Procedure) Rules 1996 provides: 
“The special adjudicator shall whenever practicable pronounce his decision at the conclusion of the hearing and he shall no later than 10 days after the conclusion of the hearing send to every party to the appeal written notice of the determination.”   
Rule 41(1) of the same rules contains a power to enable the decision or determination to be fairly made or as the case may be to provide the notice.  
	In the Waiganjo case HX/66194/96 (R.15717) the Immigration Appeals Tribunal pointed out: 
		“In the view of this Tribunal, where the issue of credibility is raised, a delay of more than 3 months from the date of the hearing to the date where such special adjudicators determination is prepared and sent for typing then such delay is unacceptable and the determination is unsafe.”   
In the same case it appears that the IAT indicated that a memorandum had been distributed to all Tribunal chairpersons, in an effort to obtain some uniformity of thought, and that, subject to the particular circumstances of the case, any period in excess of three months between the date of the hearing and the date of promulgation would not be acceptable.
	The Immigration Appeals Tribunal appears to have reconsidered the matter in Mario v. Secretary of State for Home Department [1998] Imm AR 306, at p.312 ,where the President Judge Pearl explained: 
		“In an area such as Asylum, where evidence requires anxious scrutiny, the Tribunal will usually remit a case to another adjudicator where the period between the hearing and the dictation of the determination is more than 3 months.”
	This approach of the Immigration Appeal Tribunal was considered by the Court of Appeal in Sambasivam v. The Secretary of State for the Home Department [2000] Imm AR 85.  Potter L.J. (with whom the other members of the Court agreed) considered a number of the authorities and then stated at para. 16: 
“In my view, the decision in Mario was no more and no less than a useful statement of guidance to practitioners upon the usual attitude and likely decision of the IAT in a case where an issue essential to the disposition of the claim for asylum depends upon a careful weighing of the credibility of the applicant and yet it appears that the delay between the hearing date and the preparation of the determination exceeds three months.  In the absence of special or particular circumstances, that is plainly a useful and proper rule of thumb which, in the experience of the Tribunal, it is broadly just to apply, for the twin reasons that substantial delay between hearing and preparation of the determination renders the assessment of credibility issues unsafe, and that such a delay tends to undermine the loser’s confidence in the correctness of the decision once delivered.  No doubt that is the reasoning which underlay the memorandum referred to in Waiganjo.  
	That said, I also consider it plain that the reference in Waiganjo to the “particular circumstances of the case” in which the Tribunal may properly think it appropriate to depart from the rule of thumb is likely to cover a broad spectrum of individual cases.  Apart from the cases already mentioned, i.e. where the delay may be administrative or the findings on credibility contemporaneously recorded, such circumstances would for instance cover the situation where, by reason of the terms of the findings and reasons of the Special Adjudicator, it is plain that his decision was justified on grounds which did not simply depend on this recollection and assessment of the oral testimony of the applicant, or where by reason of the nature of the applicant’s evidence, or other material before the adjudicator, its falsehood or absurdity were plain.”
It is clear from the above that the three month period is a rule of thumb which may be useful but must always be subject to an assessment of the particular circumstances of an individual case.  
	Counsel for the respondents did not refer me to any Irish authorities in which the courts here have considered the time after which a determination by a member of the Tribunal may become unsafe such that it may require to be quashed.  Mr. English in his affidavit in Ms. Edobor’s case refers to the fact that the Tribunal have conceded the issue in certain cases where the point has been raised. 
	I do not disagree with the general principle underlying the above English decisions, namely that in an appeal which turns upon the credibility of the applicant, if there is a significant gap between the oral hearing and the determination of the appeal, it may become unsafe such that either party may be entitled to have same quashed as being invalid.  However, that entitlement will depend upon the relevant facts of the appeal.  Further, that is not the issue before me in this application.  Rather I must consider whether, on the facts presented, I should conclude that at the time the first named respondent took the decision he was of the view that the second named respondent could not issue a valid determination in either of the applicants’ appeals and if so there whether there were facts before him upon which it was reasonable to so conclude.   
	There is no such evidence before the court on the affidavit of Mr. English.  There is no evidence of a consideration of the nature of the individual appeals.  The first named respondent does not appear considered whether or not credibility was an issue in either of the applicants’ cases.  Further, the defining criteria applied by him appear to have been:       
1.	That the applicants were represented by the Refugee Legal Service.  
2.	More than six months had elapsed since the hearing of the case. 
3.	The second named respondent had not substantially completed his decision in relation to the applicant. 
	On these criteria, it appears that the first named respondent cannot even be regarded as having formed the view that the second named respondent should not thereafter determine appeals where the oral hearing had been held more than six months previously.  It appears that applicants with such appeals who are represented by persons other than the Refugee Legal Service still have their appeals decided by the second named respondent.  Further, if the second named respondent had substantially completed his decision he was permitted to determine the appeal.  
	As no implicit power to remove either of the applicant’s appeals from the second named respondent had arisen on the evidence given to the court the decisions of the first named respondent to reassign the appeals to the third named respondents were ultra vires.  There being no valid decision to remove the appeals from the second named respondent he remains under a duty to each of the applicants to determine their respective appeals.  
	I would wish to add that I have considerable sympathy for the predicament in which both the first named respondent and the second named respondent found themselves.  A system which permits a Member of the Tribunal build up a backlog of 90 appeals for determination is not contemplated by the Act of 1996 and in particular para. 14 of the Second Schedule thereto.  The first named respondent attempted to address the situation which I was informed in the course of the hearing had arisen prior to his appointment as chairperson.  Regretfully I have concluded that the decision taken is ultra vires. 

Orders
	In each application I will make the orders of mandamus and certiorari as sought and will hear counsel as to the necessity for orders of prohibition.