Refugee Act 1996

Appeals to Appeal Board.

16

16. F40 [ (1) The applicant may appeal in the prescribed manner against a recommendation of the Commissioner under section 13 (other than a recommendation pursuant to section 13(2)). ]

F40 [ (2) The Tribunal may

( a ) affirm a recommendation of the Commissioner, or

( b ) set aside a recommendation of the Commissioner and recommend that the applicant should be declared to be a refugee. ]

F40 [ (2A) Where an applicant fails, without reasonable cause, to attend an oral hearing under subsection (10), then unless the applicant, not later than 3 working days from the date fixed for the oral hearing, furnishes the Tribunal with an explanation for not attending the hearing which the Tribunal considers reasonable in the circumstances his or her appeal shall be deemed to be withdrawn. ]

F41 [ (2B) Where

( a ) it appears to the Tribunal that an applicant is failing in his or her duty to co-operate with the Commissioner or to furnish information relevant to his or her appeal, or

( b ) the Minister notifies the Tribunal that he or she is of opinion that the applicant is in breach of subsection (4)( a ), (4A) or (5) of section 9,

the Tribunal shall send to the applicant a notice in writing inviting the applicant to indicate in writing (within 15 working days of the sending of the notice) whether he or she wishes to continue with his or her appeal and, if an applicant does not furnish an indication within the time specified in the notice, his or her appeal shall be deemed to be withdrawn. ]

F42 [ (3) An appeal under this section shall be brought by notice in writing within the period specified in section 13(4)( b ) or 13(5)( a ) or 13(8)( a ), as appropriate, and the notice shall specify the grounds of appeal and, except in a case to which section 13(5) or 13(8) applies, shall indicate whether the applicant wishes the Tribunal to hold an oral hearing for the purpose of his or her appeal. ]

(4) The F43 [ Tribunal ] shall transmit a copy of the notice received by it under subsection (3) F44 [ to the Commissioner and notification of the making of the appeal to the High Commissioner ].

(5) The Commissioner shall furnish the F43 [ Tribunal ] with copies of any reports, documents or representations in writing submitted to the Commissioner under section 11 F45 [ ] and an indication in writing of the nature and source of any other information relating to the application which has come to the notice of the Commissioner in the course of an investigation by him or her.

(6) The F43 [ Tribunal ] may, for the purposes of its functions under this Act, request the Commissioner to make such further inquiries and to furnish the F43 [ Tribunal ] with such further information as the F43 [ Tribunal ] considers necessary within such period as may be specified by the F43 [ Tribunal ].

(7) The Commissioner shall furnish the F43 [ Tribunal ] with observations in writing concerning any matter arising on the grounds of appeal whenever so requested by the F43 [ Tribunal ] and a copy of such observations shall be furnished to the applicant concerned and his or her solicitor (if known).

(8) The F43 [ Tribunal ] shall furnish the applicant concerned and his or her F44 [ solicitor (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 F43 [ Tribunal ] by the Commissioner copies of which have not been previously F44 [ furnished to the applicant or, as the case may be, the High Commissioner ] pursuant to section 11 (6) 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 F43 [ Tribunal ] in the course of an appeal under this section.

F42 [ (9) ( a ) An applicant may withdraw his or her appeal to the Tribunal by sending notice of withdrawal to the Tribunal and the Tribunal shall, as soon as may be, notify the Minister and the Commissioner of the withdrawal.

  ( b ) Where an appeal is deemed to be withdrawn pursuant to subsection (2A) or (2B), the Tribunal shall, as soon as may be, notify the applicant, his or her solicitor (if known), the Minister and the Commissioner of the withdrawal. ]

(10) The F43 [ Tribunal ] shall, where appropriate, following a notice under subsection (3), hold an oral hearing for the purpose of an appeal under this section.

(11) ( a) For the purposes of an oral hearing (if any) under this section, the F43 [ Tribunal ] may—

(i) direct in writing any person whose evidence is required by the F43 [ Tribunal ] to attend before the F43 [ 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,

(ii) direct any such person to produce any specified document or thing in his or her possession or control, or

(iii) give any other directions for the purpose of an appeal that appear to the F43 [ Tribunal ] reasonable and just.

( b) Subparagraphs (i) and (ii) of paragraph (a) shall not apply to a document or thing relating to information as respects which the Minister or the Minister for Foreign Affairs, as the case may be, 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”).

( c) The F43 [ Tribunal ] shall enable the applicant and the Commissioner or an authorised officer to be present at the hearing and present their case to the F43 [ Tribunal ] in person or through a legal representative or other person.

F46 [ ( d ) The Tribunal shall, where necessary for the purpose of ensuring appropriate communication during the hearing, provide the applicant with the services of an interpreter. ]

(12) Subject to subsection (13), a witness whose evidence has been or is to be given before the F43 [ Tribunal ] shall be entitled to the same privileges and immunities as a witness in a court.

(13) Where information has been supplied to the Commissioner, a Department of State or another branch or office of the public service by or on behalf of the government of another state in accordance with an undertaking (express or implied) that the information would be kept confidential, the information shall not, without the consent of the other state, be produced or further disclosed otherwise than in accordance with the undertaking.

(14) An oral hearing under this section shall be held in private.

(15) Notwithstanding subsection (14), the High Commissioner may be present at an oral hearing under this section for the purpose of observing the proceedings.

(16) Before deciding an appeal under this section, the F43 [ Tribunal ] shall consider the following:

( a) the relevant notice under subsection (3),

( b) F45 [ ] the report of the Commissioner under section 13 ,

( c) any observations made to the F43 [ Tribunal ] by the Commissioner or the High Commissioner,

( d) the evidence adduced and any representations made at an oral hearing, if any, and

( e) any documents, representations in writing or other information furnished to the Commissioner pursuant to section 11 .

F41 [ (16A) The Tribunal shall affirm a recommendation of the Commissioner unless it is satisfied, having considered the matters referred to in subsection (16), that the applicant is a refugee. ]

F44 [ (17) ( a ) A decision of the Tribunal under subsection (2) and the reasons therefor shall be communicated by the Tribunal to the applicant concerned and his or her solicitor (if known).

( b ) A decision of the Tribunal under subsection (2) F45 [ ] and the reasons therefor shall be communicated by the Tribunal to the Minister together with a copy of the report of the Commissioner under section 13.

( c ) A decision of the Tribunal under subsection (2) shall be communicated to the High Commissioner. ]

F41 [ (18) The Tribunal shall ensure that an appeal against a recommendation of the Commissioner to which section 13(5) or 13(8) applies shall be dealt with as soon as may be and, if necessary, before any other application for a declaration. ]

Annotations:

Amendments:

F40

Substituted (15.09.2003) by Immigration Act 2003 (26/2003), s. 7(i)(i)-(iii), S.I. No. 415 of 2003.

F41

Inserted (15.09.2003) by Immigration Act 2003 (26/2003), s. 7(i)(iii), (viii), (x), S.I. No. 415 of 2003.

F42

Substituted (15.09.2003) by Immigration Act 2003 (26/2003), s. 7(i)(iv), (vi), S.I. No. 415 of 2003.

F43

Substituted (20.01.2000) by Immigration Act 1999 (22/1999), s. 11(1)(k)(i), S.I. No. 9 of 2000.

F44

Substituted (20.01.2000) by Immigration Act 1999 (22/1999), s. 11(1)(k)(iii)-(vi), S.I. No. 9 of 2000.

F45

Deleted (15.09.2003) by Immigration Act 2003 (26/2003), s. 7(i)(v), (vii), (ix), S.I. No. 415 of 2003.

F46

Substituted (1.03.2011) by European Communities (Asylum Procedures) Regulations 2011 (S.I. No. 51 of 2011), reg. 7, in effect as per reg. 1(2).

Editorial Notes:

E31

Affirmation and recommendation under subs. (2) made subject to European Communities (Eligibility for Protection) Regulations 2006 (S.I. No. 518 of 2006) (10.10.2006) by European Communities (Eligibility for Protection) Regulations 2006 (S.I. No. 518 of 2006), reg. 3(1)(a), (b), in effect as per reg. 1(2).

E32

Previous affecting provision: subs. (3) amended (5.09.2000) by Illegal Immigrants (Trafficking) Act 2000 (29/2000), s. 9(c), S.I. No. 266 of 2000; subsection substituted as per F-note above.

E33

Previous affecting provision: subs. (11)(d) amended (20.01.2000) by Refugee Act 1999 (22/1999), s. 11(1)(k)(i), S.I. No. 9 of 2000; substituted as per F-note above.

E34

Previous affecting provision: section amended (20.01.2000) by Immigration Act 1999 (22/1999), s. 11(1)(k), S.I. No. 9 of 2000; superseded in part as per F-note above.