England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)

LORD JUSTICE STUART-SMITH: I will ask Lord Justice Thorpe to give the first judgment.

LORD JUSTICE THORPE: Mr. Kumar is a citizen of Sri Lanka who arrived on 12 December 1995 in this country from Germany on a false passport. He claimed asylum, but the Home Secretary refused the application and, in due course, the Applicant appealed to the Special Adjudicator. That appeal was determined on 15 February 1996. The appeal was dismissed. Subsequently, Mr. Kumar applied for leave to move for judicial review. That application came before Popplewell J on 28 March and it, too, failed. The application is renewed to this Court today.

Mr. Hammond. who represents Mr. Kumar. advances in this Court the argument that he advanced to Popplewell J. He says that there is a clear principle to be extracted from the decision of this Court in the case of Gnanavarathan [1995] Imm.AR 64, that where an adjudicator differs from previous decisions of adjudicators as to the safety of a particular country, the decision has to be founded on full reasons for that differing conclusion, particularly setting out the basis upon which the adjudicator differs from the conclusions earlier reached by other adjudicators.

The case of Gnanavarathan has been subsequently considered in this Court in the case of Kanapathypillai [1996] Imm.AR 116 and, in the course of his judgment, Evans LJ said: "So coming to the present hearing before the special adjudicator, he had, on the one hand, the evidence of those previous occasions; he had the reports of the previous rulings by special adjudicators and, as his own decision demonstrates, he was well aware of the fact that he was reaching a conclusion which could be taken as indicating some disagreement between them. But the question remains whether, on the whole of the material before him, he was entitled to reach the conclusion which he did."

Popplewell J had those two authorities before him, and he said in his judgment, at page 4:

"I take the view that the Court of Appeal do not require the Special Adjudicator to trawl through all previous rulings by Special Adjudicators, analysing, line by line, the material before them, all the decisions that they made. What he has to do is to set out why he has come to his conclusion, and set out the material before him which has enabled him to reach the conclusion which he did. He must obviously have in mind that there have been other decisions, but provided there is before him material upon which he can come to a conclusion, whether it is safe or not safe matters not in this. He is entitled to decide something is unsafe notwithstanding the fact that a hundred other Special Adjudicators have decided that it is safe and vice versa, provided that he has the material before him upon which he can reach that conclusion."

It seems to me that that practical approach is fully justified by a reading of these authorities. In the present case, it is quite clear that the Special Adjudicator had before him the instances of previous decisions to the effect that, in other cases, Germany was unsafe. But he considered that consideration specifically at page 4 of his decision, when he said:

"I accept that there are a certain number of mistakes made, deliberately or otherwise, by border officials, but this is hardly surprising. One has to bear in mind that in 1992, Germany had the largest number of immigrants for the whole of Europe. It handled over 400,000 cases. With this volume, it is hardly surprising that a certain amount of error occurs and I think one must allow for this in assessing the safety of Germany. However, I am satisfied on the basis of the documents before me, that these are isolated incidents, which do not in any way reflect the policy of the German authorities towards asylum seekers."

It seems to me that this is a case in which the Special Adjudicator manifestly satisfies the test as defined in the judgment of Evans LJ, to which I have referred. He came to the conclusion that he did on the material before him, and it was a conclusion that he was manifestly entitled to reach.

I, for my part, would dismiss this application. LORD JUSTICE PETER GIBSON: I agree. Mr. Hammond placed great reliance on the decision of this court in Gnanavarathan v A Special Adjudicator [1995] IAR 64. That only decides that it was properly arguable that the adjudicator had to give full reasons for reaching a different conclusion from that reached by other adjudicators whose decisions had been put before him. Having heard that proper argument, I am not so persuaded. What the adjudicator must do is show that he has considered all the material that has been put before him, and explain why he has reached his own conclusion. It cannot be right that the adjudicator should be compelled to go through the facts of every other inconsistent decision reached by other adjudicators to explain why he has come to a different conclusion. The decisions of other adjudicators are not binding on that adjudicator. They merely constitute material which he should take into account.

I cannot fault the approach of the adjudicator in this case, or of the judge. I too, therefore. would dismiss this application.

LORD JUSTICE STUART-SMITH:I agree with both the judgments which have been delivered.