COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE QUEEN'S BENCH DIVISION
(MR JUSTICE OWEN)
Ref No: CO10212010
Strand, London, WC2A 2LL
B e f o r e :
Vice President of the Court of Appeal, Civil Division
LORD JUSTICE MOSES
LORD JUSTICE SULLIVAN
| The Queen on the application of MN (Tanzania)
|- and -
|Secretary of State for the Home Department
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Miss Joanne Clement (instructed by Treasury Solicitors) for the Respondent
Hearing date: 21 February 2011
Crown Copyright ©
Lord Justice Maurice Kay :
"When a human rights or an asylum claim has been refused … and any appeal relating to that claim is no longer pending, the decision maker will consider any further submissions and, if rejected, will then determine whether they amount to a fresh claim."
"… the reviewing court must ask itself essentially the questions which would have to be answered by an adjudicator."
"In my judgment, the opinions in ZT do not provide binding authority for the proposition that the 'no realistic prospect of success' test in paragraph 353 is one that admits of only one answer, and nor does it provide authority for the proposition that anything other than the Wednesbury approach is apt for the court supervision of decisions taken under paragraph 353."
He repeated that view emphatically in a later passage (paragraph 10).
"It is now clear from ZT (Kosovo) … that the court must make up its own mind on the question whether there is a realistic prospect of success that an immigration judge, applying the rule of anxious scrutiny, might think that the applicant will be exposed to a breach of Article 3 or 8 if he is returned … So the question is not whether the Secretary of State was entitled to conclude that an appeal would be hopeless but whether, in the view of the court, there would be a realistic prospect of success before an [immigration judge]."
The judgment contains no mention of WM. I infer that it was thought to have been overruled by ZT.
"… subsequent judgments following ZT (Kosovo) seem to have shifted the emphasis …
It seems therefore that on the threshold question the court is entitled to exercise its own judgment. However, it remains a process of judicial review, not a de novo hearing, and the issue must be judged on the material available to the Secretary of State."
The facts of this case
"[She] would probably be unable to access the specialist care for her depressive illness in Tanzania. As a result her mental condition would deteriorate and she would become increasingly unable to work and support herself … I think it very likely that her worsening depression would also reduce her motivation to obtain antiretroviral medication at all. Without such medication her physical health would be likely to deteriorate catastrophically."
"Professor Katona's conclusions rely upon an uncritical acceptance of your client's credibility, made in ignorance of past findings on this matter by the AIT … he has proceeded to a series of speculative propositions upon your client's behaviour upon return to Tanzania resulting from this, as well as making unfounded assertions that your client would not be able to access treatment in Tanzania …
It cannot … be considered that appropriate treatment is unavailable and inaccessible to your client upon return to Tanzania …
Your client's claimed risk of suicide derives from your client's belief that she will not receive treatment for her HIV in Tanzania … this is not an objectively well-founded fear in the light of the objective evidence that the Tanzanian state is actively involved with NGOs in promoting HIV care in Tanzania …
… Tanzania possesses a psychiatric sector capable of providing your client with the mental health care your client requires to reduce her risk of suicide."
The issues arising on this appeal
"Taking Professor Katona's report at its highest, the case falls far short of the Article 3 threshold. Furthermore the claimed risk of suicide derives from the claimant's belief that she will not received treatment for HIV in Tanzania. That is not an objectively well-founded fear in the light of the objective evidence as summarised [in] the AIT Determination. The objective evidence also demonstrates that Tanzania has mental health facilities capable of addressing her mental health problems, see paragraph 43 of the AIT Determination. Such evidence undermines the unsupported assertion by Professor Katona that she would probably be unable to access the specialist care she needs for her depressive illness in Tanzania."
It is plain that Owen J was himself satisfied that an appeal to an Immigration Judge by reference to the appellant's HIV status and suicide risk would have been bound to fail.
Was the Secretary of State entitled to find "no realistic prospect of success"?
"… it is necessary to show strong grounds for believing that the person, if returned, faces a real risk of being subjected to torture or to inhuman or degrading treatment or punishment."
"30. Fifthly, in deciding whether there is a real risk of a breach of Article 3 in a suicide case, a question of importance is whether the applicant's fear of ill-treatment in the receiving state upon which the risk of suicide is said to be based is objectively well-founded. If the fear is not well-founded, that will tend to weigh against their being a real risk that the removal will be in breach of Article 3.
31. Sixthly, a further question of considerable relevance is whether the removing and/or receiving state has effective mechanisms to reduce the risk of suicide. If there are effective mechanisms, that too will weigh heavily against an applicant's claim that removal will violate his or her Article 3 rights."
Lord Justice Moses:
Lord Justice Sullivan: