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
ADMINISTRATIVE COURT
(Mr Justice Elias)

		Royal Courts of Justice Strand London WC2 Friday, 25th May 2001

1. LORD JUSTICE WALLER: I will ask Lord Justice Laws to deliver the first judgment.
2. LORD JUSTICE LAWS: This is an appeal (with permission granted by the judge below) against the decision of Mr Justice Elias made on 31st August 2000, when he refused to grant relief by way of judicial review against the Immigration Appeal Tribunal's refusal on 22nd April 1999 to grant leave to appeal to itself against the determination of a Special Adjudicator who had dismissed the appellant's asylum appeal. The Secretary of State had refused the asylum claim and issued a certificate under Schedule 2 to the Asylum and Immigration Act 1993 (as amended). That was done by letter dated 22nd August 1997. However, by a letter of 27th November 1998 the Secretary of State withdrew the certificate and amended the reasons for refusing asylum. That is a circumstance to which I must return in due course.
3. The appellant is a national of Ecuador. He first claimed asylum on his arrival in the United Kingdom on 9th September 1995. I can do no better than replicate Mr Justice Elias's account of the basic facts of the matter:

"4. ... He completed a proforma questionnaire and subsequently, on 21st October 1995, he was interviewed about his asylum claim and presented some 14 documents in support of the application.

5. On the proforma questionnaire he had indicated that he feared attacks by a group because of information he was alleged to have passed to the government. In the fuller interview, however, he indicated that he feared he would be subject to attack by those connected with the government because of information that he was passing to third parties about government matters. In fact, no decision was taken in connection with that original asylum application before he withdrew it and returned voluntarily to Ecuador. That was on 26th October 1995. His evidence was that he had returned to Ecuador after being told by his wife that a person with links with the government had assured her that the government was no longer interested in him and that he would be safe in Ecuador.

6. In November 1995, whilst in Ecuador, he made enquiries at the British Embassy in Quito as to the possibility of claiming asylum in the United Kingdom with his family. He once more came back to the United Kingdom on 10th February 1996, this time accompanied by his wife and four children. He claimed asylum for himself and for his dependents, with the exception of his eldest daughter. She claimed asylum in her own right but, in fact, in February 1998 gave up her application and returned to Ecuador.

7. When he came back to this country in February 1996, he completed a further proforma questionnaire. On 4th March he was again interviewed about his asylum claim and presented two further documents in addition to the 14 documents relied on at the time of the earlier application. The basis of his application for asylum relied upon the following facts. He said he had been a civil servant working in the office of the President of Ecuador from 1976 until 1993, serving as Accountant General to the Presidency from 1984 to 1993. For part of this time he had studied law part-time at the Central University in Quito. In 1985, he says he was suspected of passing information about government corruption to a militant student organisation called the Student Left Front (FIE). He said that he supported this organisation and was active within it, but he was not a member as such because, as a civil servant, he was not permitted to belong to a political party.

8. He said that he was allowed to continue in his post because he produced a letter from a senior university official certifying that he was not an FIE militant, but he remained nonetheless under suspicion of having left wing political sympathies. I should add that he subsequently indicated that the letter he had obtained from the university official was in fact fraudulent, in the sense that he had been involved with the FIE as a member but he feared that he would lose his job if that were known, so he persuaded the university authorities to misrepresent the position.

9. The applicant says he became aware of serious corruption, including the use by officials of monies earmarked for public works. On 31st August 1993 he resigned from his post because of strong pressure. He says that he was told that if he did not resign he would be dismissed because he was on a black list compiled by the President through the Head of Personnel. He considered he was on that black list because of the political sympathies attributed to him, and because he was spokesman of a workers' association which he had helped to found.

10. After leaving the presidential office in 1993, he says that he was subject to various threats and acts of violence. On 14th January 1994 he was attacked on leaving the Central University campus and beaten unconscious, and he recalled an assailant saying words to the effect that `we can do anything we like with him because he is no longer in government and has no protection'. He was treated in hospital and made a report to the police but without any action being taken.

11. He then says he received telephone calls threatening that he would be killed and his family would disappear. He sent his family away from Quito and made a report to the police. He then says he went to Guayaquil where his family was staying, and asked his lawyer to see if he could deal with the problem of these attacks. The lawyer made enquiries and believed the government intelligence service was behind the attacks because of the suspicion that he might be passing information to the FIE about government corruption.

12. He says he remained with his family until February 1995 when he thought that interest in him had lapsed, but the telephone death threats recommenced and, he says, on 26th July 1995 there was a particular incident in which a number of men attacked him and his family at their home but these men fled when neighbours reacted to the attack. He says both he and his wife were injured at that time and required hospital treatment. The family dog was shot dead. He complained to the local court, previous complaints to the police having been ineffectual. Again, he says, no action was taken. He then fled to the home of relatives in Calderon, which is outside Quito. He thought then that his family would be left alone, and he came to the United Kingdom on 9th September 1995.

13. As I have indicated, subsequently in October he telephoned his wife and was told that everything appeared to be going well and that - for the reasons I have given - she thought the government was no longer interested in him. So he then returned to Ecuador, but he found that circumstances in fact had not improved.

14. He says in November 1995, because he thought that his problems were over, he accepted an invitation to stand as a Deputy for Congress on behalf of the Independent Party. However, on 28th December he was subject to a violent attack by a man who said they would kill him because he had come back and he was only rescued by the intervention of colleagues. He then says he decided to leave the country with his family, but before he could do so he was detained by men who claimed to be policemen. He was put in a cell with criminals who victimised him. He was given no food or water.

15. The lawyer subsequently became aware of his presence and he was freed after five days, but he had been told by prison warders that accusations of robbery had been made against him and that people in the government wished him to disappear or be killed. He says that after his release he went into hiding with his family. He complained further to the authorities about the attack and the false imprisonment but then left Ecuador, when nothing further had happened, on 9th February 1996."

4. The respondent Secretary of State did not attend the hearing before the Special Adjudicator and in consequence the appellant, who gave live evidence, was not cross-examined. However, the Special Adjudicator was to say this in his determination:

"Notwithstanding the absence of any cross-examination, having regard to the evidence as a whole and reminding myself of the standard of proof set out earlier in this Determination, I have come to the reluctant conclusion that much of the Appellant's evidence is not credible. I am not satisfied that the Appellant subjectively has the fear of persecution which he claims."

5. A series of detailed and carefully described reasons follow. At length the Special Adjudicator dismissed the appeal and, as I have said, the tribunal refused permission to appeal to it.
6. Before Mr Justice Elias and in this court the Special Adjudicator's determination was subjected to a series of detailed assaults. But the principal thrust of the appeal is clear enough. It may be gathered most conveniently by reference to counsel for the appellant's skeleton argument. Under "Ground 1" the following submissions are set out:

"1.1 It is submitted that the most troubling aspect of this case is the way in which the Special Adjudicator disposed of the apparent documentary support for the asylum application. This was the basis for the permission granted by Mr Justice Moses to move for judicial review; and the permission granted by Mr Justice Elias to appeal.

1.2 The relevant documents fall into four categories ...

confirmation of holding government post, and general character;

medical report of injuries to appellant from attack of 14.1.94, and complaint to judge;

two medical reports confirming injuries to appellant and wife from attack of 26.7.95, together with complaint by appellant to judge;

medical report, detention order and complaint to judge regarding assault on 28.12.95, and detention on 5.1.96.

1.3 These documents were considered by the expert Dr Jones at the top of pp.1-2 of his report ... He concluded that they seemed authentic. [I shall refer further to Dr Jones shortly.]

1.4The Special Adjudicator's approach at page 13 is unambiguous: `However I consider that the authenticity of those documents is dependent on a finding as to the appellant's credibility as a witness.' They clearly mean:

a. the appellant's credibility as a witness is assessed first and separately from the authenticity of the documents.

b. an adverse finding on the former issue alone justifies disposing of the latter authenticity issue.

1.5Both these propositions are wrong in law. Mr Justice Elias accepted so ... (but went on to find, despite these words, that the Special Adjudicator had not fallen into this error)."

7. Under "Ground 2" it is said:

"The learned judge erred in finding ... that the Special Adjudicator adopted the correct approach to the credibility of the appellant and the supporting expert report of Dr Gareth Jones.

2.1 The report of Dr Jones ... provides substantial support for the evidence of the appellant. Having dealt with the apparent authenticity of his documents, he reaches several conclusions about the consistency of DP's evidence with his knowledge of the state of affairs in Ecuador and how human rights abuses are carried out by various agencies.

2.2 The Special Adjudicator dismisses this expert support at page 13, saying `... his conclusions are based upon the assumption that the appellant's account of things is credible.' Dr Jones does not make that assumption. He finds that it is credible when examined in the light of his knowledge and experience. ...

2.3 The result of the Special Adjudicator's approach is again wrongly to compartmentalise this support apart from the issue of the credibility of the appellant."

8. The particular sentence in the determination to which counsel in the skeleton argument first drew attention appears at the end of a paragraph in which the Special Adjudicator was dealing with Dr Jones's expert report on behalf of the appellant. As Mr Justice Elias said, the gist of this report, in barest summary, was to the effect that the appellant's account of events was consistent with the facts relating to the political situation in Ecuador as Dr Jones knew them to be. This is what the Special Adjudicator said about the first report:

"Turning to the statement by Dr Gareth Jones, his conclusions are based on the assumption that the Appellant's account of things is credible. He gives helpful background to the financial scandals surrounding the Appellant leaving the Government's employment in 1993. But it appears the scandal did not break until the late summer of 1995. The Appellant seemed to suggest in his evidence that the reason for his `forced' resignation was the Government's apprehension over the extent of his knowledge regarding this misappropriation but since the news did not break until 2 years later, I am not able to accept that this is the prime reason behind the pressure the Appellant was put under to leave. In relation to the Appellant's detention in January 1996, Dr Gareth Jones described the Appellant's account as confused. I don't see why Dr Jones thought this. It appears to me that Dr Jones was unable to reconcile the Appellant's account of his detention and subsequent release with his own knowledge of the way detention is unlawfully inflicted in Ecuador. Dr Jones so far as he is able to tell, is satisfied that the documents produced by the Appellant are authentic. However, I consider that the authenticity of those documents is dependent on a finding as to the Appellant's credibility as a witness."

9. The essence of the appellant's challenge, as it has been advanced by Mr O'Connor QC today, is that the Special Adjudicator has not judged the appellant's credibility by reference to the evidence as a whole (crucially including the documents adduced in support and Dr Jones' report) but, rather, has assessed the appellant's performance in the witness-box as a distinct and prior exercise. For my part I certainly accept that the genuineness of an asylum claim has to be judged by reference to the evidence as a whole, including relevant background material and such documents as are relied on, unless of course they could, on the particular facts, be peremptorily dismissed as inauthentic. The paragraph dealing with Dr Jones' report appears, it is to be noted, in a section of the determination in which the Special Adjudicator is explaining at length his overall conclusions as to the appellant's credibility. In my judgment the structure of this part of the determination is not such as to show that the Special Adjudicator has adopted an illegitimate compartmentalised approach.
10. However, I must address the specific holding that the authenticity of the documents is dependent on a finding as to the appellant's credibility as a witness. It is upon this that Mr O'Connor directs his primary focus. It seems to me that it is important not to read the sentence in isolation but, as indeed Mr O'Connor's argument itself asserts in relation to the adjudicator's task, to look at what is said in its overall context. This is what the learned judge said about it:

"25. Mr Fripp submits that [the sentence in question] makes it plain that the Special Adjudicator was saying that authenticity was only to be determined once a finding had been made as to the appellant's credibility; but I do not think that is what the Adjudicator is saying in that passage. That sentence follows the previous sentence which was as follows:

`Dr Jones so far as he is able to tell, is satisfied that the documents produced by the Appellant are authentic.'

26. In my view, all the Adjudicator was doing is indicating that Dr Jones is basing his report, in part, on documents which had been given to him and which he had no reason to doubt (which appeared to him to be authentic), but he is making the point that their authenticity is ultimately to be determined as part of the finding on credibility as a whole. That is not, of course, a matter with which Dr Jones would have been concerned. Similarly, it is said that the Adjudicator has effectively ignored Dr Jones' conclusions on the grounds that they are based on documentary material whose credibility is in doubt.

27. It is not right to say that the conclusions have been totally rejected. The Adjudicator says, in terms, that helpful background information has been given by Dr Jones, and I think all he is doing in the passage which I have recited is indicating that Dr Jones' conclusions have to be viewed carefully because they are based on an assumption of the authenticity of certain documents, which assumption may not be correct and which is, in any event, for the Adjudicator to determine and obviously not for Dr Jones.

28. What Mr Fripp also says is that if one looks at the documentation in this case, it was very powerful. There were far more relevant documents than one normally finds in an asylum application; they were ostensibly strongly supporting the applicant's case and were, on the face of it, cogent and authentic documents. Very broadly, they fell into three categories: the documentation which was evidencing complaints made to the police and the judges; the documentation from certain doctors evidencing the fact that the applicant and his wife had sustained in some cases quite serious injuries, and evidence that the applicant was wanted by the police.

29. Some of this documentation, as Mr Underwood for the respondent pointed out, is self-serving in the sense that the complaints to the police and the judiciary are, of course, documents which the applicant has produced. Some of them do not fall into that category, namely, in particular, the documentation relating to the injuries sustained by the applicant and his wife.

30. Mr Fripp went so far as to submit that where there is apparently objective evidence of that kind, then really it is not open to the Adjudicator to go behind it in an asylum case. With respect, that cannot be right. There are various ways in which documents may be obtained and may be presented to the authorities which are not genuine. Either they may be forgeries or it may be that individuals have been persuaded to produce these documents to represent something which is other than true.

31. In this case it is plain that the Adjudicator was not persuaded that these documents were sufficient to demonstrate the credibility of the account given by the applicant. It must be said that when interviewed on the first occasion the applicant had told the immigration officer that he was not a member of the FIE and he had produced the certificate - which he had formerly produced for the government itself - to persuade the immigration officer that he was not a member of the FIE, and had had no links with it.

32. So, unfortunately, he had been willing on a previous occasion to rely upon a document which he subsequently accepted had been fraudulently obtained, albeit for the understandable reason of wanting to preserve his job, and he had sought to rely upon that as part of his claim before the immigration officer.

33. It is true that the Adjudicator does not form a view about these documents, in the sense that he has not said which he considers to be authentic, or why he does not give these documents the weight that Mr Fripp says they deserve. But it seems to me that it is very difficult for him to do that: he will not know whether, for example, the medical documents are forgeries, or whether they are misrepresenting the facts, or whether there were injuries but they were not sustained for the reasons given by the applicant. What he was clearly satisfied about was that looking at the evidence in the round (and he does say on two occasions that he has done that) he was not persuaded by the credibility of the applicant's case. It seems to me impossible for him to form a concluded view about individual documents or how they were obtained. But he plainly was not satisfied, looking at all these matters, that they were sufficient to lead him to conclude that the evidence of the applicant was substantially credible."

11. In my judgment this reasoning is correct. All these cases have to be considered in the light of their individual circumstances. This is not a case, as sometimes happens, where the documents are essentially self-proving or are positively demonstrated to be authentic by reference to material, including expert evidence, that is independent of the appellant himself. It is a case where the Special Adjudicator entertained substantial objective reasons, which he explained at length, for doubting the truthfulness of the appellant's account. In those circumstances the Special Adjudicator cannot in my judgment be said to have fallen into error by compartmentalising the evidence or failing to look at issues of credibility in the round. The short truth of the matter is that the Special Adjudicator here was simply not prepared to accept that the appellant was to be believed in the light of the whole case and notwithstanding the contents of the documents relied on. Having regard to the factual history as it was recounted by the judge below, in my judgment this is wholly unsurprising.
12. That, in effect, disposes of the first two principal grounds of appeal addressed in the appellant's argument.
13. The third ground replicates ground 9 in Form 86A in the court below and is to the effect that the Special Adjudicator attached excessive weight to lies and exaggerations said to have been perpetrated by the appellant or failed to warn himself against doing so. I may, with respect to the argument, deal with the matter shortly, as did Mr Justice Elias: there is simply no sign of any such error in the determination.
14. The fourth ground is expressed thus in the skeleton argument:

"The Learned Judge erred in finding ... that there was no significance to the erroneous finding by the Special Adjudicator that because the financial scandal did not break until 1995 the Appellant's loss of his post in 1993 was not attributable to his knowledge thereof.

4.1 An important part of the Appellant's case related to his evidence that he had been forced out of his important post, and was in danger, because of confidential information he had about a financial scandal involving members of the government. Significant support for this assertion was provided by the report of Dr Jones ... confirming the existence of such a scandal involving powerful figures. ...

4.3 The error by the Special Adjudicator is pretty central to his reasoning, because he immediately continues on page 13 by concluding that he is unable to accept that knowledge of financial scandal led to the pressure upon him. He there accepts that the Appellant did indeed lose his post in August 1993 ... and ... he concludes that the pressure arose simply from suspicions regarding his political views. He holds his treatment to have been `discriminatory rather than persecutory'."

15. In my judgment the short answer to this part of the case is that the Special Adjudicator was entitled to have regard to the timescale here. He has not treated the distance in time between 1993 and 1995 as showing anything akin to the law of the Medes and Persians. He is simply arriving at a factual view. I would accept the reasoning set out at page 9 of the respondent's skeleton argument. Perhaps I may be forgiven if I do not set it out.
16. The fifth ground complains of the Special Adjudicator's observation at page 16 of the determination as follows:

"If, as the Appellant claims, these forces are out to kill him or to `make him disappear' the fact that they have not succeeded in doing so despite having plenty of opportunity undermines the credibility of the Appellant's claim."

17. Mr O'Connor submits that it simply cannot be inferred from the fact that assaults on an asylum seeker have been unsuccessful or threats have not been carried out that the claim is in some way less than genuine.
18. This is what Mr Justice Elias said:

"44. In addition, Mr Fripp criticised the Adjudicator for concluding that if the forces had been out to kill, or make the applicant disappear, then the fact that they had not succeeded in doing so undermined the credibility of the appellant's claim. Mr Fripp said that was at best an ambiguous sentence, but it seems to me that it is perfectly legitimate for the Adjudicator to say that if this was the determined wish of the authorities, then the fact that they had failed was a factor, at least, that he was entitled to take into account when assessing credibility."

19. I agree. The position might have been different if this small feature of the case had loomed so large as to overshadow the Special Adjudicator's general approach to the account given by the appellant and the details of it.
20. The sixth ground is a fresh one. The appellant needs permission to raise it. It was not raised before Mr Justice Elias or the tribunal. This is how it is put in the skeleton argument:

"The Special Adjudicator and the IAT erred in failing to have any regard to the concession by the Respondent in the amended letter of refusal dated 27.11.98 that there was substance to his claim of being detained on 5.1.96."

21. In my judgment there is a preliminary matter that at once confronts the court. Since the point was never put to the tribunal in the grounds of appeal to it, in my view it is very difficult to see how the tribunal (whose decision is the distinct subject of challenge here, rather than that of the Special Adjudicator) can be faulted for not giving leave on the point.
22. In Arshad (14th July 2000, unreported) Buxton LJ in this court said:

"21. ... When applications are made for judicial review of a decision of the Immigration Appeal Tribunal it is often the case that the substantive argument relates not directly to what was decided by the IAT but to the decision of the Special Adjudicator that the IAT has been reviewing. That is because, in most cases, the question of substance that the IAT will be concerned with will be the same as that which was before the Special Adjudicator and will be illuminated by and be based on findings that the Special Adjudicator made. It is important, however, not to allow that practice, which in an appropriate case is a beneficial and proper practice, to cause us to forget the -essential principles of judicial review which apply in this area as to any other.

22. The present case underlines that. This is not a case where the proceedings, such as they were before the IAT, consisted solely of what might be called a rehearing of the matters that have been before the Special Adjudicator. The complaint now made of the Special Adjudicator is that he did not consider the issue of undue harshness in such findings as he made about internal flight. The place to make that complaint was by using the appellate mechanism provided by statute, that is to say, by appealing to the IAT. By normal principles of judicial review, when that appellate group is provided by statute it is inappropriate to seek to use judicial review as an alternative remedy in respect of what was done by the Special Adjudicator. In this case no complaint was made in the appeal to the IAT about the Special Adjudicator's finding on internal flight. That being so, it seems to me impossible to say that the IAT itself behaved irrationally (which is, we must remember, the test that has to be applied in this jurisdiction) when it itself did not take or raise the point."

23. With great deference, I wholly agree with this reasoning. In my view it applies here. It is true that there are cases, as is acknowledged in the learning, where a point, even though not put to the IAT, is so clear and manifest that it was the IAT's duty to see it and take it for itself. But this is far from being such a case. In the light of these considerations I would not grant permission for this point now to be raised. Nevertheless, it seems to me only right that I should, albeit shortly, explain my views on its merits.
24. The amendment to the decision letter of 22nd August 1997 made on 27th November 1998 included the deletion of a passage in the first letter in which the Secretary of State had set out discrepancies as he saw them in relation to the appellant's alleged detention on 5th January 1996. The appellant's case is that the Special Adjudicator should have proceeded on the footing that the appellant's account concerning that detention was true and that documents supporting it were therefore authentic.
25. Mr O'Connor relies on the decision of the Immigration Appeal Tribunal in Carcabuk, in which the chairman (Mr Justice Collins) was the President of the Tribunal. I understand the case not yet to have been reported. The determination was notified on 18th May 2000. It is not necessary to go into the details at all. There are just these short passages:
26. "11. It is in our judgment important to identify the precise nature of any so-called concession [i.e. a concession made by the Secretary of State in a decision letter]. If it is of fact (for example that a particular document is genuine or that an event described by the appellant or a witness did occur) the adjudicator should not go behind it. Accordingly, if facts are agreed, the adjudicator should accept whatever is agreed. ... But there is all the difference in the world between a concession and a failure to challenge. The former will bind the adjudicator, the latter will not."
27. Returning to the circumstances of the present case, it is true that in the letter of 27th November 1998 the Secretary of State said that he was prepared to give the appellant the benefit of the doubt in relation to the matters which were deleted from the original decision letter. It is also the case that at the outset of the letter of November 1998 it is stated:

"... the Secretary of State has conducted a thorough review of all the evidence pertinent to your client's case."

28. However, for my part I cannot read the later letter as conceding as a fact that the appellant's account of what happened on 5th January 1996 is true. That is not how the letter is framed. It cannot be inferred from the mere deletion of the passages earlier relied on concerning 5th January 1996, and in my judgment no such inference can be got out of the introductory words in the letter of 27th November 1998 or the reference to the benefit of the doubt.
29. In that latter regard Mr O'Connor referred to paragraphs 203 and 204 of the United Nations High Commission for Refugees Handbook. I need not read the passages. It is enough to say that they address a state of affairs in which the decision-maker accepts an applicant's general credibility and then is enjoined in some circumstances to give an applicant the benefit of the doubt as regards the application as a whole, seeing that it is often the case that not all the details can be proved. That seems to me, with respect to Mr O'Connor's submissions, to cast no light on the Secretary of State's choice of language in the letter of 27th November 1998. If the Secretary of State did not concede as a fact that the appellant was detained on 5th January 1996, then of course there was no concession which bound the adjudicator.
30. For present purposes I assume, with respect, that the decision of the IAT in Carcabuk is correct; so that, had there been such a concession, on that footing the adjudicator would have been bound. But I do not so hold, and it will be for another day to decide distinctly whether that case decided in the tribunal does represent a true approach to situations where the Secretary of State makes a factual concession. What I say in this judgment is not intended distinctly to uphold the decision in Carcabuk.
31. As is well known, in 1987 Lord Bridge said in the case of Musisi that these cases need to be approached with anxious scrutiny, given what may be involved. And so they must. But as a reading of his Lordship's speech in that case readily demonstrates, the court's role remains one of review for error of law. There is no error of law here. In so concluding I have fully in mind not only the specific points with which I have dealt but the further points addressed by way of postscript by Mr O'Connor as regards the merits or demerits of certain criticisms of his client's credit. This is a case in which the Special Adjudicator was entitled to conclude as he did and a fair reading of his determination discloses no reviewable legal flaw.
32. I would dismiss the appeal.
33. LORD JUSTICE CLARKE: I agree.
34. LORD JUSTICE WALLER:I also agree.
Order: appeal dismissed; public funded costs assessment for the appellant. (Order does not form part of approved Judgment)