COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE ASYLUM AND IMM IGRATION APPEAL TRIBUNAL
DESIGNATED IMMIGRATION JUDGE DR R KEKIC and
IMMIGRATION JUDGE MRS R MORRIS
Strand, London, WC2A 2LL
B e f o r e :
LORD JUSTICE RIX
LORD JUSTICE HOOPER
| GUSTAVO SUAREZ OCAMPO
|- and -
|THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
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Lord Justice Auld :
The AIT's determination
"(1) The first adjudicator's determination should always be the starting-point. It is the authoritative assessment of the appellant's status at the time it was made. …"
"(4). "Facts personal to the appellant that were not brought to the attention of the first adjudicator, although they were relevant to the issues before him, should be treated by the second adjudicator with the greatest circumspection. An appellant who seeks, in a later appeal, to add to the available facts in an effort to obtain a more favourable outcome is properly regarded with suspicion from the point of credibility. … It must also be borne in mind that the first adjudicator's determination was made at a time closer to the events alleged and in terms of both fact-finding and general credibility assessment would tend to have the advantage. For this reason, the adduction of such facts should not usually lead to any reconsideration of the conclusions reached by the first adjudicator."
"35. We find that this principle [Res Judicata] does not apply to the appellant's case. It cannot be argued that, because his daughter's appeal was successful (even though it relied on her father's alleged problems), the findings in that appeal must be accepted by us in our consideration of the appellant's appeal. …
36. We find that the Adjudicator's determination is one piece of the evidence before us which must be assessed along with the rest of the evidence, oral and documentary evidence. We find that had the appellant's appeal already been heard and determined, and had this been a further appeal, perhaps on human rights, our starting point would have been that determination as per Devaseelan 2002 UKIAT00702. However the determination of the Adjudicator placed before us, and relied upon by the appellant, relates to his daughter and not to him. We accept that her claim has relied heavily upon the appellant's and we also note that he was called as a witness at her hearing and that both he and his daughter were found to be credible by the Adjudicator. We do not accept, however, that that decision binds us in any way. Our duty is to make our own assessment of the evidence before us, to assess the evidence of both the appellant and his daughter and to consider their evidence in the context of the objective situation in Colombia. It is also a fact of course that the Adjudicator who allowed Maria's appeal did not have before him all the evidence that we did."
"37. … We are prepared to accept … that new and compelling evidence is required before an Adjudicator's findings can be 'set aside'. We find that there is new evidence before us and by this we mean evidence that was not before the previous Adjudicator. … We have had the opportunity to consider the appellant's interview record, second witness statement, documents adduced in support of his claim relating to the alleged injuries sustained, and oral evidence. None of this was before the previous Adjudicator and we therefore find that it is new evidence and that we are entitled to consider it in reaching our decision. … We also find that it would have been most inappropriate for the Secretary of State to have adduced the appellant's interview record as evidence in his daughter's appeal as suggested by Mr O'Callaghan. Asylum applications are made in confidence and the interviews conducted with applicants are confidential to that particular application. It would have been a breach of confidentiality for the Secretary of State to have used evidence adduced by one asylum seeker in a case of another unless he had permission do so. Should the representatives have wanted the appellant's interview record to form part of the evidence in Maria's appeal it would have been for them to submit it, not for the Secretary of State".
"54. We find that the inconsistencies … are compelling and as such as find that there is both new and compelling evidence before us. We find that we are able to make our own assessment of all the evidence before us, most of which was not before the other Adjudicator, without being bound in any way by his findings.
55. We note that the two main incidents which the Adjudicator relied upon to allow Maria's appeal were the very incidents no longer relied upon by the appellant for his appeal. We also note that although the evidence to that Adjudicator was that following the appellant's resignation from the police force "a number of further incidents occurred …", we have been given details of only one in April 1997. We note that the appellant and his daughter gave oral evidence on different dates and that no reasons are given as to why Mr Ocampo was found to be credible. …
56. Having considered all the oral and documentary evidence as a whole and having placed it in the context of the country information, we find neither the appellant nor his daughter to be credible witnesses. Whilst we accept that the appellant was a policeman and that as such he may well have had some problems, we find that he has embellished these for the purposes of his asylum application. We find there are serious difficulties with his evidence, as will be apparent from the problems detailed above, and we also find that there are difficulties with the evidence given by his daughter. The documents he adduced, which are photocopies only, have not assisted his claim and indeed have contradicted parts of it. Having considered them as part of the whole, we do not find them to be reliable. …"
"the unsuccessful party who has been sued to judgment is not permitted to challenge that judgment on the ground that it was obtained by fraud unless he is able to prove that fraud by fresh evidence which was not available to him and could not have been discovered with reasonable diligence before the judgment was delivered."
"… Unless some very good reason was advanced to the contrary for example, compelling new evidence to show that X's evidence (which originally had been disbelieved) was mistakenly appraised by the original Adjudicator, a future Adjudicator is, in the Tribunal's view, not merely entitled to read the Determination in X's case but also to treat it as determinative as to X's account."
i) if such principles applied to public law claims, there was flexibility in their application in that they could be departed from where the interests of justice required, and that justice required it in this case.
ii) section 96 of the Nationality, Immigration and Asylum Act 2002, which does not govern the appeal, specifically providing for and prescribing the extent to which there could be re-litigation in asylum and human rights appeals, by analogy arguably supported an inference that Parliament did not intend principles of res judicata or issue estoppel to apply to appeals in this context; and
iii) the AIT's approach was consistent with the Devaseelam guidelines, which have been approved by this Court in Djebbar v SSHD  EWCA 804,  INLR 466, at paras 30, 31 and 40, as sensible, practical guidance, not incorporating any principle of res judicata or issue estoppel, and providing suitable flexibility of approach to ensure consistency of approach while doing justice in each individual case.
"28. … The second application is a fresh application, requiring proper consideration on such merits as it may enjoy, approaching the issues contemporaneously. Although it is indeed a 'fresh' application, a second or subsequent application is not and is not deemed to be a first application, and it is not properly to be treated as if it were. Re-litigation of issues which have already been resolved is contrary to the public interest, and nothing in the process suggests that the first application should or must automatically be treated as irrelevant to second applications arising in cases like those with which we are presently concerned. If the first application may be relevant, then the extent of its possible relevance and the proper approach to it should be addressed as a matter of principle. That is what the [Devaseelan] guidance purported to provide.".
Lord Justice Rix:
Lord Justice Hooper: