APPEAL No. HX/70205/1998 (STARRED)
Date of hearing: 21/12/2000
Date Determination notified: 12/12/2001
|SECRETARY OF STATE FOR THE HOME DEPARTMENT||RESPONDENT|
"Nothing before me suggests that this [i.e. return as a failed asylum seeker] would cause the appellant a problem within the meaning of the Convention".
As we shall see, that observation was correct and the situation has not since changed.
"The three criteria suggested in the dictum of Megaw J [in Re Poyser & Mills Arbitration] are that the reasons should be proper, intelligible and adequate. If the reasons given are improper they will reveal some flaw in the decision-making process which will be open to challenge on some ground other than the failure to give reasons. If the reasons given are unintelligible, this will be equivalent to giving no reasons at all. The difficulty arises in determining whether the reasons given are adequate, whether they deal with the substantial points that have been raised or enable the reader to know what conclusion the decision-maker has reached on the principal controversial issues. What degree of particularity is required? I do not think one can safely say more in general terms than that the degree of particularity required will depend entirely on the nature of the issues falling for decision".
"But it is not clear to me on reading the adjudicator's decision what precisely it is that she is describing as 'an incredible arrangement'. .......[P]arts of the story the adjudicator appears to accept. In my judgment adjudicators should indicate with some clarity in their decisions
(1) What evidence they accept;
(2) What evidence they reject;
(3) Whether there is any evidence as to which they cannot make up their mind whether or not they accept it;
(4) What, if any, evidence they regard as irrelevant".
Those observations were in the context of a failure by the adjudicator to give adequate reasons for her findings on primary purpose in relation to a marriage application and the headnote in the report correctly refers to the observations under that heading: see  Imm A.R. 367 Heading 3. They do not mean nor could the learned judge have intended that they should mean that an adjudicator must carry out the exercise specified in them in relation to all the evidence given before him.
"We have frequently encountered in this type of appeal emotive approaches manifested by the use of such terms as 'draft-evader', 'deserter' - notions which are founded in patriotic notions of fighting for one's country. Such notions are laudable in their proper context but not where those seeking to evade draft are doing so because they do not want to fight for some vicious group of power-hungry tyrants seeking to retain power or megalomaniac leaders following some sort of racial, tribal or religious jihad in a manner condemned by all decent-minded people".
Mr. Jacobs has relied on this passage. However valid they may be as general observations, it is, with respect, difficult to discern what relevance they have (or perhaps had) to military service in Algeria.
"That material paints a depressing picture of the security regime in Algeria and certainly provides a substantial body of material on which a view might well be taken that if the authorities discover that the person being returned is a failed asylum-seeker, he may be subject to torture or even worse, death".
were no doubt based on the material put before him. Whether they were even at that time valid is open to doubt but it is clear that now they cannot be relied on.
Sir Andrew Collins