2022-UNAT-1263, AAB
UNAT dismissed the appeal. As a preliminary matter, UNAT denied AAB's request for an oral hearing on grounds that there was no need for further clarification since the factual and legal issues arising from the appeal had already been clearly defined by the parties, and an oral hearing would not assist in the expeditious and fair disposal of the case. UNAT dismissed AAB's claim that her right to a fair trial before the UNDT had been violated because, since the application was found not to be receivable, and she was denied the opportunity to file a rejoinder. UNAT noted that there is no provision in the UNDT Statute or Rules of Procedure which entitles an applicant to file a rejoinder, and once an application is considered not to be receivable, the UNDT does not need to go beyond this threshold in the proceedings by granting further submissions of the parties to comment on the merits. UNAT also dismissed AAB's contention that the UNDT failed to define that the core issue of her application was whether the non-extension of her contract due to the lack of a valid passport was lawful. UNAT held that AAB had not raised this issue before the MEU or the UNDT and could not introduce it for the first time on appeal. Similarly, UNAT dismissed AAB's challenge of the Organization's refusal to assist her effectively with the renewal of her passpor since it had not been subject to management evaluation. UNAT noted that the Organization had offered the available resources to support AAB in light of her request for assistance to renew her passport in her home country while she was still a staff member, but AAB declined the options offered to her and her contract expired. UNAT also found that there was no indication that AAB had challenged the decision not to support her in her filing of an immigration petition with the host country or to apply for political asylum, while she was still a staff member; and her allegation that there was no response by the Organization to her request for assistance with respect to the renewal of her passport while she was still a staff member was therefore without merit. UNAT thus found no error in the identification of the contested administrative decisions by the UNDT and the way it referred to them after AAB’s separation, where, after having refused all the courses of action offered to her, she was no longer entitled to receive any further assistance from the Organization with respect to either the renewal of her passport or her repatriation, nor the assertion of the Organization’s privileges or immunities. Finally, UNAT found that the alleged decisions not to assist in obtaining the renewal of AAB’s passport and not to inform AAB about the efforts undertaken to facilitate the issuance of a valid national passport after AAB’s separation could not be considered administrative decisions challengeable before the internal justice system, since these alleged inactions were neither performed within the duration of the appointment, nor related to the appointment; and, having been challenged only once the appointment had expired, they were entirely disconnected to her former appointment. UNAT also found no error in the UNDT's finding that the list of the possible courses of action presented to AAB to tackle the issue of the expiry of her passport during the course of her appointment could not be described as a contested administrative decision as it was for AAB to decide between the options, and not for the Administration. Moreover, even if there was an administrative decision subject to judicial review, there was no evidence that the decision had been previously challenged by management evaluation.
AAB, a former OHCHR staff member, contested before the UNDT the following purported decisions: (a) OHCHR’s decision to cease all contact with AAB following her separation; (b) OHCHR's failure to comply with its obligation to repatriate AAB upon her separation; (c) OHCHR's failure to inform AAB about the efforts undertaken to facilitate the issuance of a valid national passport; and (d) OHCHR's failure to assert its privileges and immunities. The context to these purported decisions was AAB's notifying OHCHR that she had received information indicating that she had been blacklisted in her home country because of her work with OHCHR, that her passport was due to expire shortly, that she was unable to renew it due to her blacklisting, and that she requested assistance from the Organization in obtaining immigration status in the host country. By Judgment No. UNDT/2021/044, the UNDT dismissed the application finding AAB’s challenges to each of the contested decisions moot and/or not receivable. As to AAB’s challenge of the alleged decision to cease all contact with her following her separation and the Administration’s alleged failure to inform her about the efforts undertaken to facilitate the issuance of a national passport, the UNDT found that the Administration did not, in fact, cease communication with AAB after her separation from service and that this ground of appeal was, therefore, moot. The UNDT further held that after AAB’s separation, she was not entitled to receive any further assistance from the Organization with respect to the renewal of her passport. Therefore, the Administration’s lack of response did not have an impact on AAB’s terms of employment, and there was no appealable administrative decision. Turning to the alleged failure by the Organization to comply with its obligation to repatriate AAB upon her separation, the UNDT noted that AAB had declined the options offered for her relocation and decided to remain in the territory of the duty station after the expiration of her appointment and continued to request the Organization’s assistance to renew her passport from there. The UNDT recalled that AAB had no right to be assisted by the Organization with the renewal of her passport as she was no longer a staff member of the Organization and therefore no longer enjoyed functional immunity. The Organization’s failure to assist her in this respect did not, therefore, have any impact on the terms of her employment. Moreover, the UNDT concluded that AAB had neither been repatriated nor traveled outside the duty station because she had failed to provide the required information. There was thus no decision from the Administration not to repatriate her which was capable of judicial review and so this aspect of the application was also not receivable. Finally, the UNDT dismissed as not receivable AAB’s assertion that the Organization had failed to assert its privileges and immunities. The UNDT recalled that a staff member’s privileges and immunities cease with his or her separation from the Organization. AAB did not challenge any failure of the Organization to assert its privileges and immunities while she was still in its employment. As AAB no longer enjoyed privileges and immunities following her separation, there could be no decision from the Administration not to assert such privileges and immunities after that date.
An issue cannot be introduced for the first time on appeal, on pain of infringement of the two-tier principle of administration of justice. For an administrative decision to be assessed before the internal justice system, the appellant must identify and challenge it, ordinarily via management evaluation first, and only then before the tribunals. Management evaluation is a mandatory first step in the appeal process. The requirement of management evaluation assures that there is an opportunity to quickly resolve a staff member’s complaint or dispute without the need for judicial intervention. Being a mandatory first step before coming to the internal justice system, the request for management evaluation or decision review provides the Administration with the opportunity to reassess the situation and correct possible mistakes or errors with efficiency. When determining a case before it, the UNDT must present its consideration in a clear and judicious way in order to afford the parties an understanding of its line of reasoning before reaching its conclusion in the judgment. One of the objectives of the considerations in a judgment is to provide reasons to the parties for the outcome of the judgment so that they can either: (a) be persuaded of the correctness of the judgment; or (b) appeal against the judgment. It is not mandatory for the UNDT, however, to make determinations on issues which it considers inconsequential to the outcome of a case. The key characteristic of an administrative decision subject to judicial review is that the decision must produce direct legal consequences affecting a staff member’s terms and conditions of appointment.
The appeal is dismissed and Judgment No. UNDT/2021/044 is affirmed.