England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE ASYLUM AND IMMIGRATION TRIBUNAL
[AIT No: AA/05320/2006]

		Royal Courts of Justice Strand, London, WC2A 2LL
		12th July 2007

Lord Justice Toulson:

1. The appellant is a citizen of the Democratic Republic of the Congo ("DRC"). He was born on 26 June 1979. He arrived in the UK on 11 April 2006 and claimed asylum. His story in brief was that he made his living from sign writing and similar forms of artwork. He had no interest in politics. He has a brother, T, who was an active member of the opposition party, The Union for Democracy and Social Progress ("UDPS"). At his brother's request he produced some T-shirts, hats and banners for the UDPS. The T-shirts had "Vote UDPS" on them. He did this over a period between October and November 2005. On 25 January 2006 he was asleep in his home in Kinshasa when four policemen burst in. They were looking for his brother, who was not there. In searching the premises they came across some samples of the T-shirts, hats and banners, on which the appellant had done the artwork. They accused him of belonging to the UDPS and began to beat him up. It was a serious assault. They beat him around the head and knocked out three of his teeth with a blow from a rifle butt. They were interrupted by a power failure. The appellant took the opportunity to escape through a window and ran off. He stayed with a friend while he organised his escape. He employed an agent and left the DRC on 10 April 2006.
2. The Secretary of State did not believe this story and refused his application for asylum. The refusal letter was dated 18 April 2006. On 19 June 2006 the matter came before Immigration Judge Oliver on appeal from the refusal of the appellant's claim. He heard oral evidence from the appellant. He also had a written statement from the appellant dated 13 June 2006, responding to the various points in the refusal letter. Immigration Judge Oliver believed the appellant's account and in a 12-page judgment promulgated on 3 August 2006 he allowed his appeal.
3. There is no dispute that if the appellant's account was to be believed the judge was right to allow his asylum claim. The current country guidance cases of the AIT in relation to the DRC recognise that a person "Having or been perceived to have a military or political profile in opposition to the government ..." will be at risk and that there is a real risk for UDPS activists (AB and DM (risk categories reviewed – Tutsis added) DRC CG [2005] UKIAT 00118). The Secretary of State appealed against Immigration Judge Oliver's decision. In a judgment dated 6 October 2006 Senior Immigration Judge Mather concluded as follows:

"There was a material error of law in that the Immigration Judge did not consider properly the reasons which the respondent put forward for refusing the appellant's claim to asylum, albeit that he was not assisted by shortcomings in the respondent's representation on the day."

4. He therefore ordered reconsideration of Judge Oliver's decision. The issue on this appeal is whether Judge Mather was right to reach that conclusion. The appeal is brought with leave of Richards LJ. Judge Mather referred in his reasons to two points raised in paragraph 19 of the refusal letter. The relevant passages were as follows:

"You stated that as a designer, you were given written text which you used to design T-shirts, hats and banners for the UDPS. However, when you were asked 'What was this written text?' you replied '…I did a lot of jobs, I really can't remember it right now' (AIR q22 to 23). It is considered that if you had received these written texts from the UDPS which you printed on T-shirts, banners and hats, you would remember what it was about. Your lack of knowledge demonstrated that you did not carry out activities on behalf of the UDPS …"

And:

"You stated that you worked as a designer for the UDPS, however you did not know what colours are on the party's logo or symbol, and you did not know the party's slogan. It is considered that political parties use logos, symbols and slogans on materials they used during campaigns. Therefore, it was realistic for you to know what the UDPS logo and slogans were if you had designed hats, T-shirts and banners for the party. (AIR q60 to 66)."

5. To understand these extracts in context it is right to set out the questions and answers in the asylum interview record of which they were part. The relevant questions and answers were as follows:

"22. Specifically what did you do for the UDPS?

A. I designed T-shirts, hats and banners.

23. What was written on the banners?

A. The name of the party, they were giving me a written text

that I had to put the design on the T-shirts.

24. What was this written text?

A. I did a lot of jobs. I really can't remember it right now.

25. Was anything written on the hats?

A. "Voter UDPS" (in French). Sometimes I wrote "UDPS is a good party for you", sometimes written in French sometimes in Lingala.

26. What is the full name of the UDPS?

A. I don't know.

27. But you wrote the name of the party on a banner. How do you not know the full name of the UDPS party?

A. I was not interested in it. I was just printing, designing what

was given to me. I had a lot of work to do.

28. So to clarify, you wrote the name of the party on the banner

but you do not know the full name of the UDPS. You also wrote

some text on T-shirts but you cannot remember what this text

was. Is this correct?

A. Yes…

60. Does the UDPS have a logo?

A. Yes but I can't remember it right now.

61. Does the UDPS have a particular slogan?

A. No. I don't know. I'm not a politician.

62. But you designed publicity materials for the UDPS. Does the

UDPS use any particular colours in its logo or symbol?

A. The work I did was in red, the colour I was asked to use.

63. But what colours are on the UDPS logo or symbol?

A. I don't know.

64. You told me that you were a designer for the UDPS, but you

do not appear to know a great deal about the name, the symbol or

the slogan. Why is this?

A. I was only designing the letter for, "Voter UDPS" or

"UDPS". I was not doing the design of the logo or the symbol.

That was not my field of work.

65. But as a designer would you want to know about the name,

slogan and logo to help you design for the UDPS?

A. As I have already said I was just doing what they wanted me

to do. It was just to write the name or what they gave me.

66. You wrote "Voter UDPS" on a banner. What election was

this banner for?

A. I don't know."

6. It is right to set out those full questions and answers because in isolation the answers quoted by Judge Mather might suggest that the appellant was declaring a complete ignorance of the printing that he had done. A full reading of the record indicates that that would be a misleading conclusion. In giving his reasons for concluding that Judge Oliver had failed properly to consider the reasons put forward by the respondent for refusing the appellant's claim to asylum Judge Mather said as follows:

"13. It is the case that the Immigration Judge set out the details of the refusal letter and of the appellant's statement with his responses to it. He also referred to the Presenting Officer's submissions. What he did not do was to consider the two significant credibility issues raised in the refusal letter. Those issues go to the heart of the activities which the appellant says he was carrying out on behalf of the UDPS.

"14. I accept that the Presenting Officer did not cross-examine on those issues, nor did she raise them during the course of submissions. Presenting Officers often start their submissions by saying that they rely on the refusal letter. It is recorded in paragraph 42, that the Presenting Officer in this case did just that. This is an appeal where the Immigration Judge should, during the course of the appellant's evidence have either asked questions himself about those two extremely significant points, or asked the Presenting Officer to confirm that she did not rely upon them. He does not appear to have done either.

"15. It was not good advocacy on the part of the Presenting Officer to omit the two issues in cross-examination but Presenting Officers are not all seasoned advocates. It should not be assumed that, because they do not ask questions on a particular point, it is no longer part of the respondent's case. The issues were not marginal or periphery issues, they go straight to the core of the claim. It has often been said that in asylum claims it is the task of the Tribunal and both parties to try to ascertain the true position. To that extent the proceedings are not purely adversarial. It is not appropriate for the appellant to be recognised as a refugee because, through good fortune, the respondent's advocate missed out an obvious and significant part of the respondent's case. It would be different if it had been a peripheral issue buried in the papers."

7. As Judge Mather properly recognised, Judge Oliver's reasons contained a summary of the refusal letter and of the appellant's responses to it. However, I part company with Judge Mather in the prominence which he attaches to the two points in paragraph 19 of the refusal letter which I have set out. The refusal letter set out a variety of reasons for disbelieving the appellant's account of events. Paragraph 19 of the letter contained seven bullet points. The thrust of them was summarised in the next two paragraphs of the letter as follows:

"20. Due to your lack of knowledge about the UDPS, you were not able to show the interviewing officer that you worked for the party as a designer. If, as you had stated, you had been involved with the UDPS as claimed, then it would be realistic for you to be able to know a lot about the party. Even if you were not a member of the UDPS you would have known about the party because you carried out activities on behalf of its members, and your brother was allegedly a member.

"21. Your lack of knowledge damages your credibility and indicates that you were not involved with the UDPS, and that you have invented your story with the aim of enhancing your asylum application. It is not accepted that you were attacked and beaten up by the police as claimed, and therefore, you did not leave the DRC in fear of persecution due to your involvement with the UDPS."

8. Mr Beer, who has presented this case on behalf of the respondent with skill and persuasiveness, submits that it would be wrong to concentrate only on the two bullet points from paragraph 19 on which Judge Mather concentrated, because they were merely particular points made in support of the broader attack on the appellant's credibility summarised in paragraphs 20 and 21. I agree with Mr Beer's comment about that, but, in considering whether Judge Mather was right to find that there was an error of law in the reasons given by Judge Oliver, it is right to concentrate on those particular paragraphs because it was the lack of direct focusing on those paragraphs by Judge Oliver which caused Judge Mather to conclude that there was an error of law.
9. The refusal letter went on to set out other grounds for disbelieving the appellant, in particular the length of time that he spent with a friend in Kinshasa between allegedly escaping from the police and leaving the DRC and the fact that he did not experience any problem with the authorities during that period, nor was he ever arrested or detained by the authorities. The appellant's response to the attack made on his credibility, based on his inability to give any further information about the UDPS, its logo, its slogan and text and the text that he had printed on the T-shirts, hats and banners, than he gave in the questions during his interview to which I have referred, was that he had no interest in the UDPS as such. He was merely a commercial artist who had carried out a large number of jobs for different people. In his statement dated 13 June 2006 he said:

"If anyone else had asked me to do artwork or printing job I would have done it. I did it for the money in the same way as I did my other work. I did not do it at all because I supported their views.

"It is correct that I was given the text which I had to print on the articles. The interviewer did not ask me to write down the text that I had written and it was difficult to remember all the words at the time of the interview. I attach a copy of what I printed. There were several different slogans. Some were on banners and some on T-shirts and hats. If I had been given time enough to write out the slogans I would have done so.

"I did not know the full name of the UDPS because that was not a part of the text I was asked to print.

"Similarly, I did not take enough interest in the party to find out whether it used any symbols or logos or slogans apart from what I was asked to print. Obviously if I had been asked to print logos and symbols I would have only been interested in them in so far as making an exact reproduction was concerned."

Judge Oliver's reasons contained a résumé of this evidence. The appellant was cross-examined by the presenting officer about the extent of his artwork activities. Judge Oliver recorded:

"He was then cross-examined by Miss Reid. He explained again he signed all his work (except the political posters and other work) to promote his artistic work and he writes it in such a way that no-one can adopt his signature. In DRC, he produced fifty hand-painted and produced inscriptions for T-shirts per day including banners and hats. He could not give the exact number but they were many."

10. The presenting officer went on to challenge as implausible his account of the assault on him by the police and his escape without any shots being fired at him. It was suggested that the account was incredible because in his injured state he would not have been able to escape by jumping out of a window in the dark, scaling a wall and running a considerable distance to his friend's house. Another point made by the presenting officer was that it was incredible that the appellant should have happened to have with him a significant amount of US dollars with which he was able to pay an agent to arrange for his travel.
11. I would not share the criticism made by Judge Mather of the presenting officer for not putting direct questions to the appellant about his inability to give fuller details of the UDPS's logo or slogan, or his replies to the questions in interview about the text of the UDPS T-shirts, hats and banners. As is apparent from the answers which he gave, he was able to provide a certain amount of information, but indicated that because of the lapse of time and other work that he did, he was not able to give fuller or more precise details. The presenting officer explored the extent to which he claimed to have done professional artwork, and for my part I would not criticise her for thinking that she could not constructively take the point further.
12. She did pursue other matters which she may reasonably have considered were better points. In his reasons Judge Oliver summarised the various points made in cross-examination and in the presenting officer's closing submissions. He also summarised the evidence of the appellant and the submissions made on his behalf. Taking into account all of those matters, he had to decide whether he believed the appellant. He expressed his conclusion as follows:

"33. I find on the evidence that the appellant is a commercial artist and sign writer and had no interest at all in politics. I also accept that the search of his house took place on 25 January 2005 by the authorities because they were bent on searching to arrest it seems the appellant's brother who was a firm member and active one of the UDPS.

"34. I accept that the appellant is a trained artist who can make posters and other advertising materials. He has demonstrated this to my satisfaction in his evidence and shown me his artwork in relation to the protest outside the DRC embassy on 1 June 2006. It is quite plausible that he had examples of his artwork for the UDPS still in his house. The soldiers found these and as the appellant says by their actions were convinced that he was a member of the UDPS and connected with his brother. Despite the protests made by the appellant that he was not a member and his brother's whereabouts were unknown to him he was very severely assaulted."

13. These were findings of fact based on the appellant's evidence which Judge Oliver found to be plausible. The degree of reasoning required to support a finding of fact must depend on the circumstances. If a judge disbelieves a witness in evidence, he must obviously state why he disbelieves it. If he believes a witness's evidence, there may be not much more that the judge can say than to refer in summary to the main points advanced to the contrary, together with the witness's response to them, in order to show that the judge has considered them, and to express his conclusion that he finds the witness to be credible.
14. Often an attack on a witness's credibility will be based on what are said to be discrepancies, in the sense of giving different and inconsistent accounts at different times. That was not the position in this case. In this case the attack on his credibility was put rather differently, in that it was said that his assertions did not fit with other parts of his claim. The judge had to consider those points and the appellant's response to them. If an appellant's response on its face seems a reasonable answer to an attack made against him, it is difficult to see what more is required of a judge than to state his conclusion. If such a conclusion would on its face be a surprising one, then it may be that further explanation is required to show why the judge has come to that conclusion.
15. In the present case, taking the broad attack on his credibility in paragraph 19 of the refusal letter as summarised in paragraphs 20 and 21, it seems to me that the judge met that attack in his explicit findings in paragraphs 33 and 34. If he accepted that the appellant had little or no interest in politics, then there was nothing on its face surprising in the appellant knowing no more about the UDPS than he necessarily learned from producing the artwork which he was asked to produce.
16. If he was a professional commercial artist doing work for whichever customers would commission him, there was nothing on the face of it particularly surprising in him not having a full recall of all the work that he had done, and it is difficult to my mind to see what more the judge could or should have said in answer to the criticisms made of the appellant's credibility than that he believed that the appellant was credible. Mr Beer has submitted, following the observations of Judge Mather, that it was incumbent on Judge Oliver to pursue in particular the two bullet points in paragraph 19 identified by Judge Mather, but more generally also the other points set out in paragraph 19, or alternatively to ask the presenting officer whether those points were abandoned. He submitted that this duty arose because the presenting officer had said that she adopted the reasons in the refusal letter. Accordingly, it was incumbent on the judge to put her to election whether she intended to pursue each and all of them or whether there were some that she was no longer pursuing. If she was intending to pursue all of them, then it was his duty specifically to identify each of them and address them in his judgment.
17. No authority was cited to support such a broad proposition and I would not accept it. When a judge is presented with a refusal letter on which the representative for the respondent relies, it cannot be in my judgment incumbent on him to pursue each and every point in it regardless of whether it has been actively pursued by the presenting officer. In this case the presenting officer appears to have done a competent job in pursuing the points that she regarded as the ones which needed to be tested in cross-examination.
18. Rejecting, as I would, the broad submission that it was the duty of the judge to pursue and address individually the particular points which the presenting officer had not pursued, I ask whether on the particular facts of this case the points identified by Judge Mather were of such obvious significance that the judge's failure to address them amounts to a failure to give adequate reasons to support his decision accepting the credibility of the appellant. I would not accept that submission on the facts of this case. Whether the point made by the Secretary of State by reference to the particular extracts which he took from the appellant's original interview was a particularly strong point was a matter of judgment.
19. It cannot in my judgment be said to have been such a strong point that any immigration judge, properly directing himself, must have addressed it specifically in his judgment. What he did do was to consider the broad thrust made by the Secretary of State both in relation to that matter and in relation to others. It has to be remembered in this case that the attack on the appellant's credibility was grounded on at least 11 different points. The judge gave consideration to them, summarised the rival submissions and expressed his overall conclusion on credibility. I can see no error of law in his conclusion.
20. Finally, I would not concur with Judge Mather's observations about asylum proceedings before an immigration judge not being adversarial. His remark is contrary to what was said by this court in GH (Afganistan) v SSHD [2005] EWCA Civ 1603 paragraph 15, where Brooke LJ delivering judgment of the court said that:

"An obligation on a tribunal to pursue a point of law not raised by the party whom the point favours is a very unusual feature of an adversarial system, which is what the immigration appeal system is."

21. However, this is not a case in which it is necessary to consider any further the issue to what extent a judge may be under any such positive duty. The point in my judgment does not arise in this case and I would allow this appeal.

Lady Justice Arden:

22. I agree. In brief, it seems to me that, when the answers given in interview are read as a whole, the Home Office presenting officer cannot properly be criticised for her decision not to cross-examine the appellant on the second and fifth bullet points in the letter refusing leave to remain. The judge could properly have asked the Home Office presenting officer whether she intended to rely on the matters on which she had not cross-examined, but in my judgment it would be stepping into the arena and contrary to the position of the judge in an independent tribunal if he were to give the Home Office presenting officer at the stage of closing submissions the option of having the appellant recalled to be cross-examined or if he were to pursue those points in her place in the course of cross-examination on the ground that she was not, as he suggested, "a seasoned advocate". She was, after all, the presenting officer authorised by the Secretary of State as the person to present the case on his behalf.
23. It is important to note that Mr Beer in his helpful and careful submissions did not support the judge's conclusion that the immigration judge should in any circumstance have asked the questions himself of the appellant. That would run the risk of engaging in a course of action which was not consistent with the judge's function as an independent tribunal or, alternatively, of giving the appearance of not being independent.

Lord Justice Pill:

24. I agree with both judgments.

Order: Appeal allowed.