England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM ADMINISTRATIVE COURT
(MR JUSTICE MACKAY)

		Royal Courts of Justice Strand London WC2 Thursday, 3rd May 2001

1. LORD JUSTICE SIMON BROWN: The appellant is a 41-year-old Ethiopian national. He appeals by leave of this Court granted today against Mackay J's order of 26th January 2001 dismissing his application for judicial review to quash a decision made by the IAT on 28th March 2000, refusing him leave to appeal against the Special Adjudicator's determination on 24th February 2000 dismissing his appeal against the Secretary of State's decision on 4th July 1994 refusing his application for asylum.
2. When I indicate that the Special Adjudicator's dismissal of the appellant's appeal was the third in a series of such decisions made by different special adjudicators, that suggests something of the long history of this matter. The appellant's second special adjudication followed a second decision to deport him following the initial failure of his asylum application, a decision deliberately made so as to give him that further right of appeal. The third special adjudication was the result of the appellant's successful appeal to the IAT against the second special adjudicator's determination.
3. At the heart of the present appeal lies fresh evidence which was neither before the IAT, when it refused the appellant leave to appeal, nor before Mackay J, when he dismissed the application to quash the IAT's refusal of leave. It is not, I should say at once, fresh evidence in the conventional sense, evidence additional to that put before the special adjudicator; rather it is evidence to show that the special adjudicator misheard or misnoted, and in the result misunderstood a significant piece of evidence which was before him with the result that he reached a decision which he otherwise might not have reached.

The background facts

4. The following is I think a sufficient summary of the background to the third Special Adjudicator's determination.
5. The appellant arrived in this country on 26th July 1993, obtaining six months leave to enter as a visitor. He claimed asylum on 4th October 1993, stating that during September 1993 his parents' house in Ethiopia had been searched by security personnel, anti-government documents and a list of names of contacts being found and taken away, and his father detained. He said that he was a member of the civic forum, part of an anti-government body known as the Coalition of Ethiopian Democratic Forces ("COEDF"), and that having worked on COEDF's behalf he was at risk of persecution if, following the search, he were to return to Ethiopia.
6. On 17th November 1998, between the first and the second special adjudicators' appeals, the appellant received a letter from a Captain Santayehu ("the Captain") by way of a witness statement purporting to confirm the appellant's involvement in COEDF and the risk which he would run if he were returned home.
7. The second special adjudicator held the Captain's letter to have been a self-serving attempt to embellish the appellant's asylum claim, and dismissed his appeal. The IAT allowed the appellant's appeal against that determination on the ground that the appellant had not been given the opportunity to explain why he himself had not previously asserted, as the letter had, that the Captain had given him the secret documents which came to be found in the search of his parents' house.

The Third Special Adjudicator's Determination

8. The special adjudicator found the appellant's evidence not credible in relation to various issues central to his claim for asylum, in particular his asserted involvement with COEDF and his fear of persecution and, accordingly, dismissed the appeal. He gave six reasons for his conclusion on credibility, only one of which is critical to this appeal. The other five may be briefly summarised as follows: First, that the appellant was not able to give satisfactory answers as to the nature of the underground work that he had been involved in on behalf of COEDF. Second, that the Captain's letter which asserted that the appellant had been involved in recruitment and the arrangement of secret meetings for the COEDF was implausible; no material corroborating the appellant's account having been produced where such would be expected to be available from COEDF's offices in London had the appellant's level of involvement been as described by the Captain. Third, there was no evidence of any interest in the appellant from the authorities in Ethiopia since the alleged search of his parents' home in September 1993, and as the appellant was in regular contact with his sister in Ethiopia, evidence of such interest could have been expected to be known about it had it existed. Fourth, COEDF is a violent organisation, and if the appellant had any significant level of involvement in it, he would have been expected to know this, whereas in fact he denied it in evidence. Fifth, that there was evidence that those suspected of being involved with either EPRP or COEDF had been released from detention.
9. The sixth reason was expressed by the special adjudicator as follows:

"In cross-examination, having accepted that COEDF is a coalition of political parties, asked to identify his party the appellant identified this to be the civic forum and asked to identify the Captain's party he identified if I may significantly (sic) this to be the EPRF. It is in the public domain EPRF to be (sic) the Ethiopian Peoples Revolutionary Front. I find it significant because EPRF is unlikely to be associated with COEDF as EPRF is a popular Marxist group known to support the independence movement in Ethiopia. If this had been the Captain's party, I find it unlikely that the Captain would have associated himself with CODEF (sic) which advocates the unity of Ethiopia as their objectives. While I accept the appellant may well have been known to the Captain, I give no credence to the Captain's letter which describes the appellant to have exhilarated (sic) the parties underground movement by recruiting trusted individuals and to have organised secret meetings."

10. That regrettably slipshod manner of expression was unfortunately typical of the entire determination and itself formed one of the two main bases successively of appeal and challenge below. The other main basis was that the special adjudicator was guilty of procedural impropriety for having failed to put the appellant on notice that he was proposing to rely on the evidence that the Captain was a member of a party unlikely to associate with COEDF as evidence which significantly damaged the appellant's credibility.

The IAT's Refusal of Leave to Appeal

11. As to the first of those two points, the slipshod form of determination, the IAT said this:

"The determination is muddled in some parts and clearly was not read carefully before signature, there being some sentences which are incomprehensible. However it is quite clear, that the adjudicator did not accept the Applicant's claims and rejected the assertion that he had been influential politically. In these circumstances he was entitled to conclude that the Applicant would not be of any interest to the authorities on return."

12. The IAT did not deal specifically with the second point.

The Judgment below

13. Mackay J rejected the challenge on the first point accepting, as he did, the way that Mr McCullough put the argument for the respondent. Let me quote the judgment on that point:

"He [Mr McCullough] acknowledged frankly the imperfections or the warts, as he called them, on the face of this decision but said that at the end of it, it was a coherent and concise decision, as the rules required, and the shortcomings lay not at the heart of its central reasoning but as to the form in which it was expressed."

14. As to the second point, the judge accepted that it was perhaps unfortunate that IAT had not expressly referred to it, but he concluded that there was no substance in the complaint. "It was", he said, "for the appellant to explain and expand upon his case so as to put it forward in its best light." It was not even as if the appellant's case was "... that if the matter had been put to him during the hearing he would have given any particular answer or said anything which would have produced any different outcome."
15. For my part, I have not the least doubt that the judge was right on both points; indeed without the fresh evidence, to which I shall now come, there would have been nothing in this appeal and we should have refused permission to bring it. As it is, we gave permission solely with regard to the argument arising on the fresh evidence.

The Fresh Evidence

16. The fresh evidence amounts to this. When the appellant was asked in cross-examination before the special adjudicator what was the Captain's party, he did not identify this as EPRF, as the determination suggests, but rather as EPRP, the Ethiopian Peoples Revolutionary Party. Moreover, contrary to what the special adjudicator said in the passage already quoted, so far from "it [being] in the public domain EPRF to be (sic) the Ethiopian Peoples Revolutionary Front", there is in fact no such party. Rather, it appears that the special adjudicator may have been thinking of the EPRDF, in fact the governing party in Ethiopia to which COEDF is opposed, or of EPLF which is indeed a popular Marxist group known to support the independence movement in Ethiopia. Whatever the position as to that, however, it now appears entirely plain that the appellant had indeed referred to the EPRP, the very party one may note which the special adjudicator correctly identified in the fifth of his reasons set out above, so that the special adjudicator's sixth reason is a wholly false one.
17. As to why this fresh evidence did not emerge until after Mackay J's judgment, the explanation is twofold. Although the appellant for his part had spotted the special adjudicator's error as to EPRF, he had not understood its significance and did not therefore mention it to his lawyers (the Refugee Legal Centre befoore the judicial review application, thereafter his present solicitors). Unfortunately, it was not until after the judgment below that the appellant was asked by his solicitor, who of course did understand the significance of the point, about the Captain's membership of EPRF, whereupon the true position emerged.

The Argument

18. The appellant's case is that the special adjudicator's mistake vitiates his decision. The special adjudicator's conclusion that the Captain could not be both a member of the party the appellant had linked him with and at the same time associated with COEDF it was an important part of his reasoning for rejecting the appellant's credibility and therefore his claim for asylum.
19. Mr McCullough for the respondent opposes this argument on what seem to me to be three principal grounds. The first and second are founded on his submission that the appellant's application to rely on fresh evidence falls foul of the principles of Ladd v Marshall [1954] 1 WLR 1489, principles which still necessarily fall to be considered when this Court is exercising its discretion under CPR 52.11(2) (see Hertfordshire Investments Ltd v Bubb [2000] 1 WLR 2318, 2325). These principles are of course first that the fresh evidence could not have been obtained with reasonable diligence for use at the trial; second, that if given, it probably would have had an important influence on the result; and, third, that it is apparently credible although not necessarily incontrovertible.
20. Mr McCullough argues first that the evidence sought to be relied upon here, namely that the appellant told the special adjudicator that the Captain was a member of EPRP, not EPRF, could plainly have been obtained with reasonable diligence for use before the IAT, not to mention before Mackay J. Linked to this submission is Mr McCullough's reliance upon the decision of the House of Lords in Al-Mehdawi v Secretary of State for the Home Secretary [1990] 1 AC 876, to the effect that a litigant, deprived of the opportunity of having his case heard because of the default of his own advisors to whom he had entrusted the conduct of his case, had no ground of complaint in law that he was a victim of a procedural impropriety or that natural justice had been denied to him.
21. Mr McCullough's second point is that the evidence would not in any event have had an important influence on the result, at any rate if it had only been available before Mackay J and not before the IAT. This is because the decision of the IAT is not ordinarily vulnerable to legal challenge in respect of a point not argued before it unless that point was obvious, and here plainly it was not.
22. Mr McCullough relies in this regard upon the following passage from this Court's judgment in R v Secretary of State for the Home Department ex parte Robinson [1998] QB 929, 945-946:

"Because the rules place an onus on the asylum-seeker to state his grounds of appeal, we consider that it would be wrong to say that mere arguability should be the criterion to be applied for the grant of leave in such circumstances. A higher hurdle is required. The appellate authorities should of course focus primarily on the arguments adduced before them, whether these are to be found in the oral argument before the special adjudicator or, so far as the tribunal is concerned, in the written grounds of appeal on which leave to appeal is sought. They are not required to engage in a search for new points. If there is readily discernible an obvious point of Convention law which favours the applicant although he has not taken it, then the special adjudicator should apply it in his favour, but he should feel under no obligation to prolong the hearing by asking the parties for submissions on points which they have not taken but which could be properly categorised as merely 'arguable' as opposed to 'obvious'. Similarly, if when the tribunal reads the special adjudicator's decision there is an obvious point of Convention law favourable to the asylum-seeker which does not appear in the decision, it should grant leave to appeal. If it does not do so, there will be a danger that this country will be in breach of its obligations under the Convention. When we refer to an obvious point we mean a point which has a strong prospect of success if it is argued. Nothing less will do. It follows that leave to appeal for judicial review of a refusal by the tribunal to grant leave to appeal should be granted if the judge is of the opinion that it is properly arguable that a point not raised in the grounds of appeal to the tribunal had a strong prospect of success if leave to appeal were to be granted."

23. As a second limb to this point, Mr McCullough submits that even if the evidence had been before the IAT it would have been unlikely to cause them to grant leave to appeal or at any rate to allow the appeal. The point about the "EPRF" is only one of six reasons for the special adjudicator having disbelieved the appellant, as indeed the two previous special adjudicators had done. The appellant would almost certainly would have been disbelieved even had the mistake not been made.
24. Mr McCullough's third argument is in a sense connected to the first two, that there is a strong public policy interest in achieving finality in litigation, and that is particularly so here. This is a case in which there have already been determinations by three special adjudicators and by the IAT on two occasions. The original refusal of asylum was as long ago as 4th July 1994.
25. Powerful though these arguments are and ably though they were presented, in my judgment they cannot carry the day. This was really a most regrettable mistake for the special adjudicator to have made. True, it produced only one of six reasons for disbelieving the appellant, but it must inevitably leave a sense of deep injustice in the appellant and it cannot confidently be said to have made no ultimate difference to the result. It is of course most unfortunate that this mistake was not uncovered until it was when and plainly it could and shold have been. Were the old Ladd v Marshall principles to be strictly applied, then surely the appellant would fall at this first hurdle. The fact is however that these principles never did apply strictly in public law and judicial review. As Sir John Donaldson MR said in R v Secretary of State for the Home Department ex parte Ali [1984] 1 WLR 663, 673:

"... the decision in Ladd v Marshall [1954] 1 WLR 1489 has as such no place in that context,"

although he then added:

"However, I think that the principles which underlie issue estoppel and the decision in Ladd v Marshall, namely that there must be finality in litigation, are applicable subject always to the discretion of the Court to depart from them if the wider interests of justice so require."

26. Nor am I persuaded that the House of Lords' decision in Al-Mehdawi precludes this Court having regard to the wider interests of justice here, not least given that this is an asylum case rather than a student leave case as was Al-Mehdawi. Aspects of that decision may in any event now need to be reconsidered in the light of the House of Lords' speeches in R v Criminal Injuries Compensation Board ex parte A [1999] 2 AC 330.
27. What then do the wider interests of justice require in this case? I have no doubt that they require the IAT's refusal of leave of 28th March 2000 to be quashed and perhaps even the appeal to the IAT itself to be allowed so that there would need to be yet another special adjudication, a fourth, unfortunate though plainly that would be. That, therefore, seems to be the necessary outcome of this appeal.
28. I would allow in the fresh evidence, set aside the judgment below (purely because of the fresh evidence) and quash the IAT's refusal of leave (again purely because of the fresh evidence). I would add just this. Although, as I have indicated, it is not impossible that on a fourth appeal to the special adjudicator the appellant may finally achieve a different result, he should certainly not count on that. He has indeed little ground for optimism. I would, nevertheless, allow his appeal.
29. LORD JUSTICE MUMMERY: I agree.
30. LORD JUSTICE LONGMORE: I agree also.
(Application for permission to appeal allowed; legal aid assessment; no orders for costs)