2021-UNAT-1134, Anis Basil AlMousa
UNAT considered an appeal of the Judgment on the merits and a cross-appeal from the Commissioner-General on the receivability finding. UNAT held that the cross-appeal was receivable, however UNAT dismissed it in light of the Commissioner-General’s request that his cross-appeal not be examined should the appeal be dismissed and secondly, because UNAT did not detect any error in the UNRWA DT’s order which found that the application was receivable. On the merits of the appeal, UNAT held that Mr. AlMousa failed to establish any error in the UNRWA DT Judgment, although his appeal undoubtedly conveyed significant discontentment with the decision. UNAT held that Mr. AlMousa’s claim that the UNRWA DT erred in not analysing his observations and supplementary evidence was to no avail. UNAT held that the UNRWA DT was fully cognisant of the entirety of the parties’ comments and evidence in the record. UNAT held that it was satisfied that UNRWA DT considered all evidence relevant to the issues before it. UNAT held that the UNRWA DT’s determination that the reason behind the contested decision was the Ãå±±½ûµØSecretariat’s request to maintain a 12% vacancy rate for the Ãå±±½ûµØNew York funded posts and an upcoming restructuring exercise was not unreasonable and that Mr. AlMousa did not convince UNAT that there was any error of law or of fact in it. UNAT held that Mr. AlMousa merely reiterated previous arguments in his appeal that had already been put before UNRWA DT and failed to convince it of any error in the UNRWA DT Judgment. Having found that there was nothing in the record to suggest that the decision had been grounded on improper motives, UNAT held that it would not interfere with the discretion bestowed upon UNRWA to cancel a recruitment exercise. UNAT held that UNRWA DT was correct in its finding that the procedural irregularity of delay in informing him about the cancellation of the recruitment process was not serious enough to vitiate the decision itself. UNAT held that the UNRWA DT was correct in law and in fact in deciding that Mr. AlMousa failed to establish that i) the decision to cancel the recruitment process for which he had been recommended was unlawful; and ii) the delay in notifying him of the cancellation of the recruitment caused him any harm. UNAT dismissed the appeal and the cross-appeal, and affirmed the UNRWA DT Judgment.
Mr. Almousa contested the cancellation of a recruitment process, for which the interview panel had recommended Mr. AlMousa to be selected, following a competitive recruitment exercise. UNRWA DT dismissed Mr. Almousa’s application.
It is not enough for an appellant to disagree with the findings of fact or the conclusions of law made by the trial court; rather, for an appeal to succeed, an appellant must convince UNAT that the contested decision fulfils the objective criteria of its competence. It is not necessary for any court, whether a trial or appellate court, to address each and every claim made by a litigant, especially when a claim has no merit. When judging the validity of the Commissioner-General’s exercise of discretion in administrative matters, the UNRWA DT determines if the decision is legal, rational, procedurally correct, and proportionate; the UNRWA DT can consider whether relevant matters have been ignored and irrelevant matters considered, and also examine whether the decision is absurd or perverse. It is neither the role of the UNRWA DT to consider the correctness of the choice made by the Commissioner-General amongst the various courses of action open to him nor to substitute its own decision for that of the Commissioner-General. Once the Administration has provided a reasonable motivation for the contested administrative decision, the staff member has the burden of proving that such extraneous facts played a role in the administrative decision.
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