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 AN IMMIGRATION APPEAL TRIBUNAL

		Royal Courts of Justice Strand London WC2 Tuesday, 19th February 2002

Tuesday, 19th February 2002

1. LORD JUSTICE PILL: This is an application for permission to appeal against a decision of the Immigration Tribunal delivered on 18th September 2001 following a hearing on 5th June 2001. Permission to appeal to this court was refused by the Immigration Tribunal on 19th December.
2. The applicant has links with Kazakhstan, though he describes himself as being of Russian ethnic origin. For reasons which are not necessary to consider for present purposes, there is doubt about his nationality, that matter being considered by the Immigration Appeal Tribunal. They dismissed an appeal from an adjudicator. The adjudicator had held, on what the adjudicator regarded as a preliminary issue, in a decision of February 13th 2001, that she was not satisfied that the applicant was in Kazakhstan when he alleges in his asylum application that he was there. The Immigration Appeal Tribunal appear to have dealt with the matter comprehensively rather than simply as a preliminary issue, but that is not a material difference for present purposes.
3. The Immigration Tribunal have set out the material considerations. They do not accept the reasoning of the adjudicator but themselves came to the conclusion that there was no merit in the applicant's claim, either under the Refugee Convention or the Human Rights Convention.
4. The applicant claimed asylum in the United Kingdom. The facts on which he relies are set out at paragraph 9 of the decision of the Tribunal:

"The Appellant claims to fear ill treatment in Kazakhstan as a result of events there in 1998 when he was, he says, invited to use his skill as a taxidermist to preserve certain human heads, which he refused to do. He claims that he was detained by his prospective customers from 10 December to 20 December 1998 and, after escaping, left Kazakhstan on 1 January 1999. It is common ground that he arrived in the United Kingdom on 12 January 1999."

5. Before the submissions on behalf of the applicant are considered, it is necessary to refer to one further dimension in the factual background.
6. The applicant first claimed asylum in Belgium and was refused it. He says that he returned to Kazakhstan in July or August 1998 following that refusal. However, the Belgian prosecuting authorities claim that while in Belgium the applicant committed serious criminal offences. The nature of them is set out in paragraph 9 of the IAT's decision. It is claimed that some of the offences were committed in December 1998, that is at a time when the applicant claims he was in Kazakhstan practising his trade as a taxidermist. The Belgian authorities have successfully claimed the extradition of the applicant, successful, that is, to the point where the United Kingdom authorities have given directions for the applicant's removal to Belgium under the extradition procedures. However, the Home Office will not extradite a person in the applicant's position, or at any rate this applicant, while he has an asylum appeal outstanding. Thus, the position is that there are operative directions for removal to Belgium. What the applicant seeks by these proceedings is a finding that he is entitled to asylum in this country on the ground that he may be persecuted on a Convention ground in Kazakhstan. It is not suggested that success in these proceedings would in any way cast doubt upon the extradition procedures which have been followed. So much is by the way, but it has been necessary to set out the factual background.
7. What this court has to consider is whether there is an arguable case that the IAT have erred in law in the findings which they have made. On behalf of the applicant, Mr Seligman submits that there are errors of law in the judgment of the Immigration Appeal Tribunal. It has to be said that they have considered the evidence in detail. They are entitled to make findings of fact, and they have done so. The particular complaint is made that the IAT have not approached correctly the evidential material which was produced before them on behalf of the applicant. That consisted of a number of documents, their description being set out in paragraphs 15 and 16 of the Tribunal's judgment, which claim to indicate that the applicant was present in Kazakhstan in late 1998. It is not necessary to refer to the documents in detail in this judgment. It is submitted that the Tribunal have set themselves up as handwriting experts, a course which a judicial body should not take: see R v Simbodyal, 10th October 1991, The Times, per Lord Justice Watkins. It is submitted that, in effect, a burden has been placed upon the applicant in relation to the documents which ought not to have been placed upon him. It is submitted that in their detailed consideration of signatures on certain of the documents they have erred in law and, in effect, have set themselves up as handwriting experts.
8. The further complaint is made that the IAT erred in law in declining to adjourn the case. They should have had greater regard to the difficulties which the applicant faced, it is submitted, in obtaining relevant information from Kazakhstan; because throughout almost all his time in the United Kingdom he has been in custody, including by virtue of the Belgian application, and has not been able to obtain documentation from friends and relatives in Kazakhstan. The IAT declined to adjourn the matter, referring to the long period of time during which the applicant had been present in this country. That matter is dealt with in paragraph 14 of their judgment and they were entitled to refuse to adjourn.
9. The further point is made, and for the first time today before this court, that since the determination of the IAT further documents have arrived. They are in Russian and are now said to be in court. Mr Seligman realistically accepts that it is not for this court to scrutinise documents at this stage of the proceedings.
10. I have considered the submissions of Mr Seligman and his criticisms of the reasoning of the Tribunal. In my judgment, their reasoning is appropriate to the circumstances. What they have found in their conclusion is that there was no evidence of any quality, no prima facie evidence, of the applicant's presence in Kazakhstan at the material time. They point out, as they were entitled to point out in my view, at paragraph 17:

"The fact that a person who signs unlike [the applicant] was apparently in Kazakhstan at the appropriate time does not tend to show that the [Applicant] was there."

11. They have not set themselves up as handwriting experts. They have drawn attention to obvious differences in the signatures relied on, and they drew (and were entitled to draw) the conclusion that in the circumstances the documents produced did not support the applicant's case that he was in Kazakhstan at the material time. We are told by counsel this morning that the applicant's name is a common one in Kazakhstan. It was, in my judgment, open to the Tribunal to hold, as they did at paragraph 18, that:

"It follows that there is no reason to think that these documents refer to the Appellant at all."

12. That is reasoning which they were entitled to follow. They were also entitled to go on to conclude, as they did in paragraph 19, that the commercial documents did not show that the applicant was in Kazakhstan.
13. The Tribunal also referred to the Belgian proceedings and were entitled to make the point, as they did in paragraph 9:

"The Respondent asserts Belgium would not have initiated or pressed the extradition proceedings if the authorities there were not satisfied that at the very least the Appellant was in Belgium when the offences took place."

14. The Tribunal took the further point that while the documents from Kazakhstan, which were relied on, included a patronymic (a middle) name, Vladimirovich, none of the United Kingdom documents do so. In reply to that, having taken instructions, counsel made the point that the name is a very common one in Kazakhstan. That, as I have said, casts doubt upon the value of the documents as evidence of what it is sought to prove. Even allowing for that, however, it is surprising, and the IAT were entitled to say so, that the patronym was not also used in his United Kingdom documents if indeed the applicant has that patronym, Vladimirovich, and he is the same person as appears on the documents produced from Kazakhstan.
15. The Tribunal's conclusion was as follows:

"20.... It has been important to the Appellant for many months to show that he left Belgium and went to Kazakhstan on refusal of his asylum claim in the summer of 1998. He does not have his passport. He has not contacted the Belgian authorities. His family and friends have not responded to his request for statements of his having been there. He has produced only documents in a name which there is no reason to think is his, signed a way that does not resemble his signature.

21.The Appellant has known at all material times that in these proceedings, if not in others, he had the burden of showing that his story was to be believed. In particular, it was quite apparent that he needed to show, albeit only to the standard appropriate in an asylum appeal, that he was in Kazakhstan at the relevant time. In our clear judgement he has failed to do so. It follows that despite the Adjudicator's errors of law, and despite our lack of sympathy with her reasoning, we reach the same conclusion. There can be no merit in the Appellant's claim under either Convention. His appeal is dismissed."

16. The judgment of the Tribunal was careful and comprehensive. They have dealt with the evidence in a way which in law they were entitled to deal with it and which, I have to say, I find wholly convincing. They were fully entitled to hold that this was a case which on the evidence did not get off the ground. Subtle questions of movement of burden of proof do not arise: they were entitled to hold as they did that there was no evidence which established that the applicant had been in Kazakhstan at the material time.
17. In my judgment there is no error of law in the finding of the Tribunal, and it is not arguable that this court would reverse their finding or take any action in the applicant's favour.
18. For those reasons I would refuse this application.
19. LADY JUSTICE HALE: I agree.
Order: Application dismissed.