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 Michael Sachs)

		Royal Courts of Justice Strand London WC2 Wednesday, 23rd May 2001

1. LORD JUSTICE WALLER: I will ask Lord Justice Laws to give the first judgment.
2. LORD JUSTICE LAWS: This is an appeal (brought with permission granted by myself on 13th January 2001) against the decision of Mr Justice Sachs made on 7th July 2000, when he dismissed the appellant's application for judicial review of the refusal by the Immigration Appeal Tribunal to grant leave to appeal against the determination of the Special Adjudicator. The Special Adjudicator had dismissed the appellant's asylum appeal.
3. The appellant is a citizen of Kenya, of Kikuyu ethnicity. He claimed asylum on arrival in the United Kingdom on 16th February 1996. The Special Adjudicator was to outline the nature of his claim as follows:

"He had travelled openly in his own identity on a valid passport. He said that he obtained his passport easily because he was assisted by someone `who works for immigration'.

He said that his lawyer advised him to leave Kenya as it was rumoured that he would soon be charged with sedition and treason. He said that he was helped to leave Kenya by Mr Muturi Kigano who he described as the chairman of the Safina party.

He said that he was arrested in April 1995 and tortured. He describes his experiences in some detail. If true they were horrific. Further they are of a kind listed in a table `Torture methods in Kenya described to Amnesty International in 1996' published in a document `Kenya, Detention, torture and health professionals' dated 8 January 1997 ...

He said that he was a member of Safina and that he had recruited people into the organisation."

4. In a statement made by him on 18th February 1998 the appellant described torture to which he said he had been subjected after being arrested in April 1995. He said that he was strapped to a chair and electrocuted. He was daily beaten with whips, so that his back and buttocks bled. His private parts were squeezed and he had difficulty urinating. On one occasion sticks were pushed up his anus. He was detained for weeks. He was ill and weak. Then in August 1995, upon a further and separate occasion, he was rolled down a steep hill in an incident in which, according to his account, some people may have died.
5. His case was supported before the Special Adjudicator by an expert report dated 23rd June 1998 written by Dr David Anderson, a senior lecturer in the history of Africa at the School of Oriental and African Studies in London University.
6. The Special Adjudicator took a poor view of the appellant's credibility in general terms. This is what he said:

"He was cross-examined about discrepancies between his account to the Immigration Officer and his account in his statement.

He told the Immigration Officer ... that he fled to Nairobi after `top people' had been beaten and he was arrested again at his residence in Nairobi before being taken to Westland Police Station where he was tortured by being put on a place where Safari ants were gathered.

However in his statement ... he said that he was arrested near to a Church before being taken to Westland Police Station and then rolled down a hill whilst being attacked by Safari ants.

He could not explain why he did not mention in his statement that he was arrested in Nairobi. I find this a significant omission. I would not expect a truthful person giving a careful and considered account of his arrest to have overlooked this point.

Further he told the Immigration Officer that he last reported and worked on Tuesday 13 February 1996 ... and saw the senior CID officer who helped him on Wednesday. However in his written statement ... he says that he met a senior CID official on 3rd February. When this was pointed out the Appellant said that he remembered that he had met the CID officer on the 13th February [1996] and that the reference to 3 February was a mistake.

I note that he did not tell the Immigration Officer that he met the CID officer on the 13th but on the Wednesday. Further whilst I would not be surprised if the Appellant could not remember the date I am surprised that he remembers it confidently and differently. This further undermines his credibility.

I have considered the statement of Dr David Anderson dated 23 June 1998. I accept that Dr Anderson is an appropriately qualified expert and I accept that he writes honestly in accordance with his special views.

I accept that Safina activists did issue membership cards, or something that could be so described. Further I find it plausible and consistent with my understanding of affairs in Kenya, supported by the documents before me, that agents of the government of Kenya did watch carefully Safina headquarters. I also find it believable that the government would use resources to watch a low level supporter such as the Appellant claims to be. He may have been noticed at a rally.

Further I do not agree with the Respondent that the Appellant could not have left Kenya in the manner that he described. I accept Dr Anderson's observation that the Government of Kenya does not want to keep its opponents in the country and so it is not particularly surprising that he was not stopped leaving the country. However I find this inconsistent with his claim to have feared being arrested for capital offences. If he really was about to be arrested for serious offences then I do not believe he would have escaped so easily.

It follows that although I do not accept all of the Appellant's evidence I do not reject it for the reasons advanced by the Respondent.

Taken as a whole I found that the Appellant was not a truthful witness. I do not say that there is no truth in his story and I accept that he may have been abused by the police but not for the reasons or in the circumstances that he claims."

7. Mr Scannell's first principal submission, advanced in his skeleton argument prepared for the application for permission, was that the Special Adjudicator's determination was, as it is expressly put, against the weight of the evidence. But that, as is elementary, is not a ground for judicial review at all. So far as the allegation in truth is that there was no material upon which a rational adjudicator could form the qualified view of the appellant's credit which this Special Adjudicator arrived at, in my judgment that is simply not made out.
8. Mr Scannell places heavy reliance on Dr Anderson. Since other aspects of the case have been the focus of the emphasis in the oral argument this morning, I will simply cite the first and last paragraphs of Dr Anderson's report:

"The account given by anthony Muchai of the formation and activities of the organisation Safina can be corroborated in every detail, and indeed this much is implicitly acknowledged in the Home Office's letter of 10 November 1997. ...

The present political situation in Kenya has if anything worsened since 1996. Safina is no longer the central concern of the Kenyan authorities, as it was then, because ethnic violence in the Rift Valley and at the Coast has become a more severe political problem. Nonetheless, even though its status has now changed since it was allowed to register in November 1997, Safina is still subject to state interference and its activists continue to face harassment and intimidation. It is regrettably the case that the Kenyan authorities seek to disrupt and interfere with the legal activities of all opposition groups. Were Mr Muchai to return to Kenya, maintaining his political convictions and to resume his activities, he would be likely again to come under police scrutiny."

9. I should also note these further short passages from the Special Adjudicator's determination:

"However, as well as the discrepancies considered above, I am impressed by the comment in the report from the British High Commission in Nairobi at page 5 in the Respondent's bundle. Having stated that High Commission staff are in regular contact with the leadership of Safina it concludes:

`The Safina leaders have never claimed to anyone in the High Commission that their ordinary supporters are being persecuted, harmed or detained to an extent that would justify an asylum claim. It is difficult to imagine that a group of Kenya's most talented lawyers, famous for their work on political and human rights cases, would keep silent on this if it was a genuine problem.'

I find that there is a lot of force in that submission.

The Appellant claims in his statement that his travel to the United Kingdom was paid for by Safina. He claims to have been an enthusiastic but low level supporter and the leadership of Safina have not complained to the High Commission that low level supporters need asylum. I do not believe that Safina paid the Appellant's fare to London."

10. The Special Adjudicator says in the last two paragraphs of the determination:

"Dr Anderson opines that the situation in Kenya is now worse than it was in 1996. He says that Safina activists continue to face harassment and persecution. However he accepts that Safina are no longer the government's major concern. The US State Department Report of January 1997, dated 30 January 1998, refers to serious abuses by the police. It says `They arbitrarily arrested and detained citizens (although not for political reasons after the enactment of the reforms) ...' The words in parenthesis are extremely important in this case. There have been major changes in Kenya and Safina is free to operate as never before. Its leaders are in positions of power.

I accept Mr Phillips' submission that the situation in Kenya is not settled and could deteriorate. I cannot say that that is likely to happen and on the evidence before me I find that even if the Appellant had been persecuted for a Convention reason he is not at risk now."

11. Mr Scannell says, among other things, that the British High Commission statement which impressed the Special Adjudicator flies in the face of Dr Anderson's report. But in my judgment there is no basis for the suggestion that the Special Adjudicator was in effect bound to accept the appellant's case. The Special Adjudicator was entitled to be sceptical of the appellant's evidence, given the discrepancies to which he drew attention. He was entitled, moreover, to attach greater persuasive weight to the British High Commission's statement than to the report of Dr Anderson; and of course he also had the US State Department report to which he referred. Nor in my view is there any basis for the suggestion that the Special Adjudicator here has in some way failed to consider the whole of the evidence. So Mr Scannell's outright attack on the Special Adjudicator's conclusions (mounted to the extent of asserting, as I read it, that in truth he ought to have accepted the appellant's case on the merits) is in my judgment without merit.
12. However, he has a further submission, and this has been the focus of the arguments before us. It is essentially to the effect that the Special Adjudicator failed to make clear findings of fact as to the extent to which he accepted that the appellant had been ill-treated or tortured and the extent to which he found that he had not. This, says Mr Scannell, vitiates the conclusion at which the Special Adjudicator arrived. I repeat for convenience two sentences from the determination (a passage which in fact appears twice at pages 6 and 7):

"Taken as a whole I found that the Appellant was not a truthful witness. I do not say that there is no truth in his story and I accept that he may have been abused by the police but not for the reasons or in the circumstances that he claims."

13. It is elementary that on issues which are crucial to the case before him an adjudicator should indicate, at the very least broadly, what evidence he accepts and what evidence he rejects. Allegations of previous grave ill-treatment, on the appellant's case here amounting to out-and-out torture, are particularly important because they may be highly relevant to the question of future risk to the appellant if he is returned to the country from which he has come: see the decision of this court in Demirkaya [1999] INLR 441.
14. It seems to me that the Special Adjudicator's approach here really raises more questions than it answers. What does he mean when he says, "I do not say that there is no truth in his story" and "he may have been abused by the police"? Is he ruling out the possibility that the appellant was actually tortured as he described and may merely have suffered some less grave form of abuse? Or is he accepting that perhaps there had been some of these terrible events which the appellant described, but they had not been inflicted on him for a political or a Convention reason? It is, I fear, quite unclear.
15. This case, in my judgment, is unlike that of Dauda (No 2) [1995] Imm AR 600, in which Buxton J (as he then was) held that an adjudicator's finding on credibility could only be successfully attacked on true irrationality grounds. That was a case where the argument was that the adjudicator was not entitled to reach the findings on credibility that he had. The case with which we are concerned is closer to that with which Schiemann J (as he then was) had to deal in Amin [1992] Imm AR 367. In a sentence, the learned judge there held that the adjudicator had erred in law in failing to make clear findings on the credibility of the two witnesses she had heard in the case. Here too the Special Adjudicator has in my judgment failed to make clear findings on the credibility of the appellant in relation to the major incidents which he put forward as being at the core of his asylum case.
16. Mr Wilken, for the Secretary of State, has submitted that in reality this was a "Yes" or "No" case: either those terrible incidents of torture had happened or they had not, and the Special Adjudicator is to be taken as having held that they had not. That, as it seems to me, is not consistent with the way in which the Special Adjudicator himself expressed the matter in the short passage that I have set out more than once.
17. That, however, would not necessarily be the end of the case. The question for the Special Adjudicator, as always in these cases, is of course whether the appellant had a well-founded fear of persecution for a Convention reason were he to be returned to his country of origin. If the Special Adjudicator concluded (and was entitled to conclude) that, irrespective of the degree of ill-treatment which the appellant had earlier received, there was in reality no sufficient risk of ill-treatment in the event that he is returned, then the determination would fall to be upheld.
18. In this regard the last two paragraphs of the determination are, as it seems to me, critical. There is a great deal for the view that, on a fair reading of the determination culminating in those two paragraphs, the Special Adjudicator has simply concluded that there would be no risk of persecution for a Convention reason to this man if he were returned to Kenya, and he expresses proper grounds for such a conclusion. However, it seems to me, first, that it is not possible to be confident that the Special Adjudicator would have ruled out any possibility of risk of persecution had he made clear findings as to what actually had happened to the appellant in the past. It is notable that he says in the very last sentence of the determination:

"... I find that even if the Appellant had been persecuted for a Convention reason he is not at risk now."

19. In that short formulation the Special Adjudicator does not indicate the nature, degree or extent of persecution which he is presuming for the purposes of such a conclusion. If one may put it in the form of a question, are we to take it that even if the Special Adjudicator had concluded that the appellant had been tortured to some extent as he described, nevertheless there would be no Convention risk for the future? In my judgment one cannot answer the question with a confident affirmative.
20. Moreover, it is not plain from the last two paragraphs of the determination precisely what the Special Adjudicator made of Dr Anderson's reasoned report, and not least the last paragraph in it. In addition, the Special Adjudicator himself asserts in terms that the situation in Kenya is not settled and could deteriorate. Mr Scannell, in the context of that observation by the Special Adjudicator, points out the words immediately following: "I cannot say that that is likely to happen". He would charge the Special Adjudicator with a failure to apply what has come to be known as the Sivakumaran standard of proof. The question was not whether a deterioration of the situation in Kenya was likely or not, but whether there was more than a fanciful risk that it might deteriorate so as to give rise to the risk of persecution which the appellant said he feared. Certainly the words chosen by the Special Adjudicator there, "I cannot say that this is likely to happen", are, as it seems to me, unhelpful.
21. I regard this as a borderline case. That being so, one has to go back to first principles and remind oneself of the approach commended by Lord Bridge in 1987 in the Musisi case: that these issues where fundamental rights are at stake have to be viewed by the courts with the most anxious scrutiny. I do not forget that we are exercising no more nor less than the judicial review jurisdiction. I consider however that it is incumbent in a situation such as that faced by the Special Adjudicator here to give clear reasons for the conclusion at which he arrives. Taking together the failure, as I see it, of the Special Adjudicator to make clear findings of fact as to what actually had happened to this man and the less than entirely plain conclusions he comes to as to the future, it seems to me that the Special Adjudicator falls short of the standard required here. In those circumstances I consider that the Immigration Appeal Tribunal should have given leave.
22. Mr Scannell had a series of criticisms of the decision of Mr Justice Sachs, but in the circumstances, with great respect, I do not think it necessary to go into those. For my part I would allow the appeal and grant judicial review with an order to quash the refusal of leave by the Immigration Appeal Tribunal. If my Lords agree, the matter will no doubt then be returned to the tribunal, who would grant leave to deal with the appeal.
23. LORD JUSTICE CLARKE: To my mind, there is a good deal to be said for the view that the Special Adjudicator concluded that there was no risk of the appellant being detained in Kenya and, that being the case, there was no risk of his being persecuted for a Convention reason if he were returned to Kenya. Moreover, there was evidence upon which the Special Adjudicator could reach that conclusion.
24. However, on balance, and not without hesitation, I agree that this appeal should be allowed for the reasons given by Lord Justice Laws.
25. LORD JUSTICE WALLER: I agree with both judgments.
Order: appeal allowed with costs and matter returned to the tribunal; detailed public funded costs assessment for the appellant; leave to appeal to the House of Lords refused. (Order does not form part of approved Judgment)