England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
(Mr Justice Turner)

		Royal Courts of Justice Strand London WC2 Wednesday, 9th May 2001

1. MR. JUSTICE BELL: The appellant, Guy Mafuta, who was born on 28th October 1969, is a national of the Democratic Republic of Congo, ("DRC"), previously Zaire. He arrived in the United Kingdom on 28th January 1995 and promptly applied for asylum on the ground that he had a well founded fear of persecution in the DRC for reasons of political opinion for the purposes of the Geneva Convention. More particularly, as appeared from interviews on 29th January and 10th February 1995, the appellant claimed a well-founded fear of persecution on the basis that while in the DRC he had been a member of the Parti Democrate et Social Chretien ("PDSC"), which was opposed to the government of President Mobutu; that he was involved in PDSC activities, distributing literature and putting up posters; that in January 1995 a box containing ammunition had been found in the house where he was lived, and that he had been arrested, released, re-arrested, beaten and interrogated, before being finally released due to the intervention of an uncle who had then assisted his departure to the United Kingdom via Nigeria.
2. The Secretary of State found the appellant's claim to be lacking in credibility and concluded that he did not qualify for asylum. He refused his application for asylum on 14th December 1995. The appellant appealed under section 8(1) of the Asylum and Immigration Appeals Act 1993 to a special adjudicator who dismissed his appeal on 13th October 1999. The appellant sought permission to appeal to the Immigration Appeal Tribunal which refused permission to appeal on 15th November 1999. The appellant sought to challenge the decision of the Immigration Appeal Tribunal by judicial review. A judge of the Administrative Court gave him permission to apply for judicial review but dismissed his application on 16th October 2000. Mr. Mafuta now appeals to this court against the judge's decision.
3. Since Mr. Raza Husain's arguments in support of the appeal involve criticisms of the decisions of the special adjudicator, the Immigration Appeal Tribunal and the judge, it is necessary to return to the nature of the proceedings before them.
4. The appellant's statement, dated 30th September 1997, in support of his appeal to the special adjudicator repeated at some length his allegations concerning joining the PDSC, his political activities and his mistreatment in the DRC before coming to the United Kingdom. At the very end of the statement he alleged that since his departure from the DRC President Kabila had replaced President Mubuto but carried on the ways of President Mubuto, allegedly outlawing political activity and restricting the freedom of the press. He ended his statement by saying:

"I have remained active in political activity for my party in London, going to their monthly meetings whenever I have the opportunity, and being updated about the situation in my country by them. I have protested with other Union Sacree members outside the South African embassy in London about that country's involvement in the Kabila regime. I know that if I go back to my country my political activities will cause very severe consequences for me."

5. The Union Sacree was a reference to a coalition of a number of parties opposing President Kabila's government, which included the PDSC and the Union pour la Democratie et le Progres Social ("UDPS"). At the hearing before the special adjudicator on 16th July 1999 the appellant gave evidence of his alleged experiences in DPC. He also gave evidence that he had become a member of the UDPS after arrival in this country; that he had attended UDPS meetings, and that he had recently participated in a demonstration outside the South African Embassy in London renouncing the Kabila regime. He gave evidence alleging that President Kabila had a political wing of spies in this country, spying against those who were against the Kabila government and following their political activities.
6. The appellant's representative called a Dr. Kayembe who said that he was a student at Hackney College and that as a general secretary he was involved in the political affairs of the UDPS. Mr Kayembe said that the appellant was a member of the party. He said that Kabila agents took photographs of UDPS members during meetings and sent them home. No membership documents were produced. The appellant's representative submitted that the appellant had a well-founded fear of persecution in the DRC because of his political activities, both in the DRC and the United Kingdom.
7. In his written determination and reasons dated 5th October 1999, the special adjudicator directed himself that he must decide whether, if the appellant returned to the DRC, there was a serious possibility that he would be subjected to persecution for Convention reasons, the onus of proof being on him. His assessment of the appellant's credibility was essential. He was aware that serious human rights abuses continued in various parts of the DRC but the reality was that if the appellant could not be relied on as being a credible witness, then his claim failed. He found that the appellant was in many respects an unreliable witness. Having earlier said that the Home Office presenting officer had drawn his attention to the judgment of the Immigration Appeal Tribunal in the case of Danian [1998] Imm AR 402, he said, under the heading "Findings":

"My overall finding is that the appellant is, in many respects, an unreliable witness. I find that there are inconsistencies and discrepancies in his evidence as to the events claimed to have taken place while he was in Zaire (as it then was), and that not seeking to join the UDPS until after his application for asylum was refused smacks of bad faith and is a cynical attempt to circumvent the immigration laws of the United Kingdom."

8. The special adjudicator then listed nine discrepancies or inconsistencies in the appellant's interviews or evidence and two implausibilities in his evidence, all of which related to alleged events in the DRC before arrival in the United Kingdom. The special adjudicator then said:

"I was not persuaded that the appellant had ever taken part in any real political activity."

9. The special adjudicator then went on to say that he was not satisfied of other features of the appellant's account of events in the DRC before he came to the United Kingdom. At the end of his findings the special adjudicator said:

"I was not asked to find that the appellant would suffer persecution because he was a returned asylum seeker. In any event there was no evidence put before me that he would or even might suffer persecution on that basis."

10. I can find no other direct reference to events in this country in the special adjudicator's findings. He had referred to the evidence of Mr. Kayembe of the appellant's membership of the opposition group in this country. But he made no finding in respect of Mr. Kayembe's evidence, save that he implicitly accepted that the appellant had in fact joined the UDPS when saying that he had done so in bad faith. The special adjudicator concluded that he found that the appellant's fear of persecution was manifestly unfounded and that the Secretary of State was correct to conclude that he did not qualify for asylum.
11. Permission to appeal from the decision of a special adjudicator to the Immigration Appeal Tribunal was and is left to the discretion of the Immigration Appeal Tribunal (see Rule 13 of the Asylum Appeals (Procedure) Rules 1996 and Rule 18 of the Immigration and Asylum Appeals (Procedure) Rules 2000). The Immigration Appeal Tribunal process has now primarily supplanted the scrutiny of asylum decisions exercised on judicial review. If permission to appeal is given by the Immigration Appeal Tribunal the appeal is by way of rehearing. The Tribunal considers an account of the evidence put before the special adjudicator but it has power to admit further evidence and even to call further evidence of its own initiative.
12. In the present case the Immigration Appeal Tribunal's written determination of the application for permission to appeal against the special adjudicator's determination was dated 26th October 1999 but marked "notified 15th November 1999". It referred to the special adjudicator's clear findings of fact, his finding that the appellant was an unreliable witness, and it said:

"He did not accept that the applicant had ever taken part in political activities or that a gun had been found at his home."

13. It concluded that the special adjudicator's conclusions were fully supported by the evidence and that there was no misdirection of law. This was not, in the Immigration Appeal Tribunal's view, a proper case in which to grant permission to appeal.
14. In fact, the special adjudicator had, for understandable reasons, been misled as to the potential relevance of political activities in the United Kingdom carried out in bad faith to seek the protection of the Convention. At the time of the hearing before the special adjudicator the Immigration Appeal Tribunal had indeed decided in the case of Danian that an asylum seeker who deliberately sought to undertake activities while in the United Kingdom, in order purely to create a "well- founded fear of persecution" could not be afforded the protection of the Geneva Convention, regardless of whether his fears were well-founded. On 29th October 1999, however, between the date of the Immigration Appeal Tribunal's decision and its notification of it, the Court of Appeal allowed an appeal from the Immigration Appeal Tribunal's decision in Danian [1999] INLR 533. The Court of Appeal held that a person who had a well-founded fear of persecution on Convention grounds could not be denied the protection of the Convention on the grounds that activities after arriving in the United Kingdom giving rise to such a fear had been carried out in bad faith, although post-arrival activities carried out in bad faith would have to be rigorously scrutinized in order to determine whether those activities in fact gave rise to a well-founded fear of persecution. The judge of the Administrative Court, on the application for judicial review of the Immigration Appeal Tribunal's decision, took this point but asked himself whether the result of the hearing before the special adjudicator would have been any different if he had approached the matter on the basis of the law as the Court of Appeal in Danian later declared it to be. If there was a chance that the result would have been different, then plainly, as a matter of justice, the case would have to go back to the special adjudicator for further consideration. The judge pointed out that the special adjudicator made no findings as to post-flight activities by the appellant, so the judge looked at the notes of the appellant's evidence of his activities after arrival in the United Kingdom and the evidence of Mr. Kayembe. That, the judge said, consisted of his evidence of membership of the UDPS and attending meetings. There was no evidence, the judge said, other than attending meetings, which would have defined the extent of the appellant's post-flight activities. Mr. Kayembe had given evidence, but there was an absence of evidence in relation to the activities of the appellant so far as membership of the UDPS was concerned. The judge concluded at paragraph 19 of his judgment:

"Thus, assuming that the special adjudicator had not dismissed the post-flight activities in the terms and for the reasons he did, the question is whether, following the Court of Appeal decision in Danian, he could have reached any other decision."

15. And at paragraph 22:

"In the present case, there was, as I have endeavoured to indicate, an absence of evidence of anything other than membership of UDPS and attending occasional meetings presented to the special adjudicator for his consideration. In my judgment, even if he had correctly directed himself in law as to the good faith or otherwise of the post-flight activities, he would inevitably have come to the same conclusion."

16. The main thrust of Mr. Husain's submissions in this appeal is that, firstly, the special adjudicator erred in law, for reasons which I have sought to explain, in not considering the appellant's activities after arrival in the United Kingdom once he decided that joining the UDPS after his application for asylum smacked of bad faith and was a cynical attempt to circumvent the immigration laws. Secondly, in the light of that error of law, as the Court of Appeal have found it to be in Danian, the Immigration Appeal Tribunal should have granted permission to appeal and made findings relating to the appellant's political activities in this country, calling further evidence if necessary before deciding whether any such activities gave rise to a well-founded fear of persecution. Thirdly, the judge at the Administrative Court erred, Mr. Husain contended, in concluding that the special adjudicator's error of law was immaterial, in that he would inevitably have dismissed the appeal had he taken the approach to post-flight activity counselled by the Court of Appeal in Danian. Counsel before us agreed that the judge did not canvass that approach with counsel during the hearing. It was not part of the submissions of Mr. Ashley Underwood Q.C., counsel for the Secretary of State, at the judicial review hearing. The judge failed, Mr. Husain contends, to take account of all the evidence given to the special adjudicator concerning political activity in this country. In particular, he omitted any reference to evidence of participation by the appellant in public demonstrations or to Mr. Kayembe's evidence of the strength of UDPS membership or to the allegation that UDPS activities were followed by government spies. The judge understood the special adjudicator to have made findings about UDPS activities in this country when the extract of the special adjudicator's determination to which the judge referred was in fact a narration by the special adjudicator of submissions by the Home Office presenting officer rather than the special adjudicator's own findings. Finally and in any event, Mr Husain contended that the necessary stringent evaluation of a refugee claim fell to be applied by the fact finding tribunal, special adjudicator or Immigration Appeal Tribunal, rather than the supervisory reviewing court, whose principal function is to ensure that the statutory appellate process relating to decisions of the Secretary of State is not flawed.
17. Mr. Underwood does not seek to support the judge's findings that, had the special adjudicator considered the appellant's account of political activity in the United Kingdom, he would have been bound to come to the same conclusion as he did in fact reach. Mr. Underwood made no such submission to the judge. The matter was not argued and it took no account of the additional matters in evidence to which Mr. Husain drew attention, but Mr. Underwood contends, first, that the decision of the special adjudicator was to be upheld on an alternative basis, namely that the adjudicator did in fact consider all of the evidence when concluding:

"I was not persuaded that the appellant had ever taken part in any real political activity."

18. Mr. Underwood's argument is that there was no reason to believe that that statement was meant to cover only events or alleged events before arrival in the United Kingdom. Although the passage appears between other paragraphs which deal with events abroad, Mr. Underwood's submission is that these paragraphs did not refer to political activities, so that the key passage was not to be construed in their context. I cannot accept that argument. The statement that the special adjudicator was not persuaded that the appellant had taken part in any real political activity came in the middle of a number of findings about the appellant's alleged activities and experiences in the DRC. The activities and experiences in the DRC, to which the special adjudicator referred, included membership of an opposition party, PDSC. Although they also included possible involvement with munitions which might be a matter of ordinary non-political criminality, that involvement was readily relatable to political activity in the circumstances of the appellant's case. In his statement to the special adjudicator Mr. Mafuta said that he had been told after his arrest that he was suspected of rebellion against the government on the basis of the munitions found in the house where he lived.
19. Secondly, Mr. Underwood contends that the special adjudicator had clearly considered the evidence of activities put forward by the appellant or on his behalf in the United Kingdom. He noted in particular that there was no risk, in the special adjudicator's judgment, on return by reason of being a refused asylum seeker. If the adjudicator had accepted the appellant's evidence of political activities in the United Kingdom, he could not have said that there was no evidence of risk on return. The special adjudicator had referred to Mr. Kayembe's evidence, at least in relation to membership of the opposition group in this country. In the light of those matters, it is argued that the special adjudicator clearly had in mind the evidence about alleged events in this country and had discarded it as a basis for fear of reprisals upon return to the DRC.
20. In my judgment, those arguments strain to bring by inference into the special adjudicator's determination and reasons that which is notably lacking in the express terms of his determination, namely any finding as to what he made of the evidence of events in and the alleged activities in this country. I take the reference to there being no risk of reprisal by reason of a failed application in this country to be no more than the normal point which is taken in these circumstances, that application for and refusal of asylum alone and without more might prejudice an appellant or applicant for asylum upon his return. Had the special adjudicator meant to find that such activities as Mr. Mafuta had been involved in in this country would have led to no risk upon his return or no fear of any reprisal, it would have been easy to make the appropriate finding.
21. Taking the special adjudicator's determination and reasons as a whole, it seems to me that the approach that he took was, firstly, to disbelieve the appellant about events and experiences in the DRC; secondly, to decide that he joined the UDPS in the United Kingdom to provide or strengthen the claim for asylum and, thirdly, therefore, to find it unnecessary to consider what had happened, if anything, in this country after Mr. Mafuta's arrival here, in the light of the law as the special adjudicator understood it to be at that time. In that last respect, in my view, the special adjudicator, understandably in the light of then existing authority, erred in law, and putting matters at their very lowest, I cannot conclude that the error did not distort the appeal process to the appellant's disadvantage. It is possible that it was material to the outcome of his appeal against the Secretary of State's decision. In those circumstances the Immigration Appeal Tribunal erred in refusing him permission to appeal against the special adjudicator's decision, in my view. I would allow this appeal and make a quashing order quashing the Immigration Appeal Tribunal's refusal of permission to appeal against the special adjudicator's decision, so that the matter will return to the Immigration Appeal Tribunal. We were informed by Mr. Husain that if this court takes that course, then the inevitable result is that the Immigration Appeal Tribunal will grant permission to appeal and go on to exercise its own judgment in the light of the evidence before it. That is the course I would take on this appeal.
22. LORD JUSTICE CLARKE: I agree.
23. LORD JUSTICE THORPE: I agree. The appeal is allowed and the decision of the Immigration Appeal Tribunal quashed.
Order: Appeal allowed with costs; decision of the Immigration Appeal Tribunal quashed.