England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE QUEEN'S BENCH DIVISION
(Mr Justice Harrison)

		Royal Courts of Justice Strand London WC2 Thursday, 5th April 2001

Thursday, 5th April 2001

1. LORD JUSTICE WALLER: The claimant is an Algerian national. She applied for asylum on arrival in the United Kingdom on 4th April 1997. Her application was refused by the Secretary of State by a letter dated 14th May 1999 on the basis that she lacked credibility and that she had failed to establish a well founded fear of persecution. The claimant appealed to the Special Adjudicator. She did not give evidence before the Special Adjudicator but there were documents before the Special Adjudicator, including the claimant's interview on arrival and an additional statement from her. On 31st January 2000 her appeal was dismissed by the Special Adjudicator on the grounds that she did not find the story of the claimant credible. The claimant applied for leave to appeal to the Immigration Appeal Tribunal. On 15th February 2000 the Immigration Appeal Tribunal refused leave but mistakenly included in their grounds the fact that the Special Adjudicator had heard the oral evidence of the claimant in rejecting her story, that mistake in fact appearing in two places in those grounds.
2. An application to judicially review that refusal was made. That application was dismissed by Harrison J on 7th July 2000. In the judgment he delivered he recognised the serious error made by the Immigration Appeal Tribunal. Indeed, he directed that a copy of the judgment should be drawn to the attention of the Immigration Appeal Tribunal, including the Chairman responsible for the decision to refuse leave. The contents of that judgment show the very serious view that he took. However, he also took the view that the claimant's appeal was doomed in any event to failure and that, if the Immigration Appeal Tribunal had appreciated that she had not given evidence, they would still have formed the same view that no leave should be given. Schiemann LJ recognised the force of Harrison J's view, but he granted leave to appeal to this court. He took the view that there ought to be a full hearing of an appeal in this court. This is that hearing.
3. It is perhaps important to clarify a preliminary point taken by Dr Malecka for the appellant. She queried precisely what the role of this court was to be on this day. The answer which we gave her at the commencement of the appeal was that this was an appeal from the decision of Harrison J but that it would obviously involve consideration of the question as to whether the IAT were bound to refuse leave to appeal in any event, and it would move into the area of a judicial review of that decision. Thus, the appropriate way to go forward was to grant permission to apply for judicial review and for the matter to be retained by this court. Thus it is that this hearing has been the application for judicial review of the IAT's decision.
4. At the commencement of the appeal Dr Malecka accepted certain propositions of law, as set out on page three of Mr Stilitz's skeleton. First, that the decisions of the IAT and the Special Adjudicator may be judicially reviewed only on Wednesbury principles. Second, that the burden of proof is on an applicant for asylum to satisfy the Secretary of State that she is entitled to asylum and, in order to establish that a fear is well founded, an asylum seeker must establish that there is a serious possibility that she would be persecuted for a Convention reason - that is somewhat lower than the Civil standard of proof. Third, this proposition was accepted initially, that the court will not grant relief on the basis of procedural irregularity unless something of substance has thereby been lost. For that proposition the passage in the speech of Lord Wilberforce in Malloch v Aberdeen Corporation [1971] 1 WLR 1578 and 1595 B-C is cited, and for the further proposition that relief will not be granted if the outcome would in any event have been the same a passage in the judgment of Sir John Donaldson MR in Regina v Monopolies & Mergers Commission ex parte Argyll Group Plc [1986] 1 WLR 763 at 774 E-F is relied on.
5. It is fair to say that in the course of argument Dr Malecka would have sought to withdraw her concession that that last point of law was right. She sought to take what was in essence a free standing point which would come down to this. She submits that the IAT plainly did not have any regard to the papers in this case. The error they made in thinking that the appellant gave evidence, she would submit, demonstrates that as a fact. Thus, she submits that the appropriate tribunal to consider whether leave to appeal should be given is the IAT and, in essence, as a matter of public policy, this court or any court judicially reviewing that decision should send the matter back to the Immigration Appeal Tribunal without any further inquiry and let them do their job. One can understand, in one sense, the intrinsic merit of that submission. But the truth of the matter is that Dr Malecka was right to concede that this court or any court considering whether an application for judicial review should be granted operates on the principle that, if the outcome would in any event be the same, there is simply no point in sending the matter back and for the costs of so doing being incurred. Thus it is that, if this Court came to the view that the outcome would be bound to be the same, the duty of the court would be not to grant the relief sought by the appellant. So, the real question which this court must address is whether, if the Immigration Appeal Tribunal had appreciated that the appellant had not given evidence, the refusal of leave to appeal would have been the same. In my judgment, the decision would have been precisely the same. My reasons for so concluding are as follows.
6. In the Secretary of State's letter of 14th May refusing the appellant's original application, he spelt out the reasons why he thought she lacked credibility. That letter is at page 29 of the bundle. The Secretary of State spelt out, in highly persuasive terms, the inconsistencies that he found in the appellant's story. He did that in paragraphs 5 through to 11. From paragraph 11 through to paragraph 16 he also addressed the situation so far as the appellant's passport was concerned. He pointed out that, when asked, the appellant had said that her visit to the United Kingdom on this occasion was the first time that she had been out of Algeria. However, her passport indicated about five or six occasions on which she had gone back into Algeria or had left Algeria. In particular, it was noted that her case was that the persons whom she feared in Algeria, a group called the GIA, had given her a 15-day ultimatum. Her case would have been that that ultimatum was given on 20th March. Yet, there was an entry in the passport for 21st March, indicating that she must have returned to Algeria after that ultimatum. Finally, there were pages from this passport which had been destroyed.
7. In any event, as already indicated, she took her case to the Special Adjudicator. The Special Adjudicator, in a very detailed ruling which runs from pages 33 through to page 38 of the bundle, considered all aspects of the appellant's case. Interestingly enough, it appeared to be of significance to the Special Adjudicator that the appellant did not give evidence. It was recorded at the outset that Miss Mills (on behalf of the appellant) had put in documentary evidence and said that she was not going to call the appellant and had then made submissions. In addition, when the Special Adjudicator came to consider the key points in the case, the Special Adjudicator recorded the position as follows:

"As I say the appellant was available at the hearing of the appeal but did not give any evidence and I do not find on the documentary evidence I have seen that the story she has given is credible."

8. Dr Malecka sought, on this application, to suggest that there might be some way in which her client might now be able to give evidence and deal with the matters that she did not deal with before the Special Adjudicator. She sought to suggest that there was a relevance in the fact that it would, in certain circumstances, have been open to the Immigration Appeal Tribunal to allow her client to give evidence.
9. The difficulty with that submission is this. First, there is no record in the decision of the Special Adjudicator that there was any request to adjourn so that the appellant could give evidence; everything would suggest that it was a deliberate decision that she should not. Second, in the grounds of appeal to the Immigration Appeal Tribunal, which was of course the document that they would have to consider on whether to give leave, there is absolutely no suggestion by her that unfairness had taken place as a result of the appellant not being able to give evidence and no suggestion that an application would be made to the Immigration Appeal Tribunal for her to give evidence. Third, in considering whether the Immigration Appeal Tribunal would have come to the same decision, this court must concentrate on the material that was before the Immigration Appeal Tribunal and not on any other material.
10. Having recorded the fact that the appellant was available, the Special Adjudicator went on to deal with the inconsistencies that the Special Adjudicator had found in the appellant's story.
11. There has been some suggestion by Dr Malecka in her skeleton argument that the findings of the Special Adjudicator were unclear. She has made a further criticism of the reliance by the Special Adjudicator on the question of the appellant's dress. She has also submitted that the Special Adjudicator did not fully appreciate the effect of trauma on her client and of the possibility that trauma might have affected her client's memory when being interviewed, there being two interpreters there at the interview.
12. In my view, there is nothing in those criticisms. The findings of the Special Adjudicator are absolutely clear. She makes it quite clear that she did not find it credible that the appellant would continue to live with her husband's family after he had left having regard to the fact that his brothers were antagonistic towards her, particularly as she thought they had betrayed her to the GIA. She makes it clear that she did not find it credible that the appellant could not remember when her husband left -- at one time she had said that was six or seven months before, but, quite inconsistently, she had at another time said that it was a year and a half before -- and she makes it quite clear that, in her view, the appellant was inconsistent about when the attacks from the GIA had started. At one time she was saying that that was only after her had husband left, but at another stage she was saying that the attacks had started before.
13. So far as the dress is concerned, the criticism is unfair for this reason. It was the appellant herself who was saying in her statement that the dress was western dress. There is really no suggestion that it was the nature of the western dress that was important so far as the Special Adjudicator's decision was concerned. What was important to the Special Adjudicator's decision (and then only in a minor respect) was that in order to escape the fears that she was expressing she could have worn Muslim dress, which was what she was saying the GIA were insisting upon her doing. As I say, that seems to be a minor point so far as the Special Adjudicator is concerned. The most significant point relied on by the Special Adjudicator appears to me to be the fact that she remained with the family of her husband and did not return to her parents, which one would have expected her to do if she was fearful of the GIA and fearful of the fact that the brothers of her husband were those who were betraying her to the GIA.
14. It is perhaps of some interest that the Special Adjudicator does not place any special reliance on the points that the Secretary of State has made in relation to the passport. That was almost certainly a very fair thing to do.
15. If those factors had been added to the factors that the Special Adjudicator was taking into account, they would have been extra points, detracting from the appellant's credibility. As it seems to me, if the Immigration Appeal Tribunal had appreciated that the appellant had not given evidence, that would indeed have confirmed their view not to give leave to appeal rather than the reverse. It was a factor relied on by the Special Adjudicator and one can understand logically why.
16. As it seems to me, the position is that, unfortunate as it undoubtedly is that the Immigration Appeal Tribunal record inaccurately factors in their refusal of leave to appeal, this is a case in which they would have been bound to reach the same decision. There simply is no purpose in sending the matter back to them.
17. I would finally add this. Harrison J, in the last paragraph of his judgment, draws attention to the unsatisfactory feature of the case, i.e. that the Immigration Appeal Tribunal clearly got matters wrong in this case, recording factors which would indicate that the ruling of the Special Adjudicator was not read with the care it should have been. He said that his judgment should be drawn to the attention of the Chairman. That was clearly appropriate, and hopefully this type of mistake will not occur again. But, in my judgment, the position is that this application for judicial review should be dismissed for the reasons I have given.
18. LORD JUSTICE LAWS: I agree entirely. The errors and defects perpetrated in the decision of the Immigration Appeal Tribunal are very grave, and I would expressly wish to endorse paragraph 12 of Harrison J's judgment, to which no doubt the Immigration Appeal Tribunal will wish to play close attention. But it is no less important that the court should not make orders which serve no useful purpose. It is wholly plain to me that it would have been quite wrong for the Immigration Appeal Tribunal, had they properly considered the matter, to give permission to appeal from the Special Adjudicator themselves.
19. My Lord's judgment demonstrates, with respect, that the Special Adjudicator's determination is not sensibly assailable and the reasons why that is so. In those circumstances, like my Lord, I would dismiss this application for judicial review.
20. LORD JUSTICE JONATHAN PARKER: I agree with both judgments.
Order: Appeal dismissed. Appellant's costs to be assessed by Community Legal Services.