UNDT/2018/135, Azam
UNAT Held or UNDT Pronouncements
The Tribunal was of the view that, essentially, the Applicant attempted to create an administrative decision in an attempt to contest it. Whilst the approach discloses some imagination on the part of the Applicant, the absence of a response by the High Commissioner to the Applicant’s request does not create any direct legal consequence for him. Thus, there is no administrative decision, directly or by implication, that the Tribunal would have jurisdiction to consider. The Applicant has no right to make an appeal in respect of matters to which he was not a party. Indeed, the Applicant did not assert that the High Commissioner failed to consider his candidacy for any of these positions, nor did he claim that he was even qualified for them. The Applicant has no interest in the decisions made and thus no legal standing and/or right of appeal in respect of such. The recruitment and assignment to positions at the D-2 level is excluded from the High Commissioner’s Recruitment and Assignment Policy (UNHR/HCP/2017/2), which governs recruitment process at UNHCR. If positions at the D-2 level at UNHCR are granted without advertisement and recruitment processes, the Applicant may indeed have limited possibilities to challenge his non-selection for positions at the D-2 level. In order for the Tribunal to entertain an application in this context, the Applicant would at least have had to identify a specific position for which he considers he was not fully and fairly considered. The Tribunal cannot review policy decisions or consider cases in a vacuum. The application is therefore not receivable
Decision Contested or Judgment/Order Appealed
The Applicant challenged the decisions of the High Commissioner to appoint several staff members to positions at the D-2 level, which the Applicant claims effectively rejected his request to be promoted to the D-2 level and to be appointed to a position at this level.
Legal Principle(s)
A staff member cannot unilaterally create circumstances that are not part of his/her terms of appointment or the terms of his/her contract of employment and then assert that there is an implied administrative decision consequent upon a refusal to consider the matter.