England and Wales Court of Appeal (Civil Division) Decisions

IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE UPPER TRIBUNAL (IMMIGRATION AND ASYLUM CHAMBER)
Deputy Upper Tribunal Judge Bowen
Appeal Number: AA/00427/2011

		Royal Courts of Justice Strand, London, WC2A 2LL
		25/07/2012

Lord Justice Rimer :

1. This is a renewed application for permission to appeal, the proposed appeal being against the decision promulgated on 12 January 2012 by which Deputy Upper Tribunal Judge Bowen, in the Upper Tribunal (Immigration and Asylum Chamber), held that the decision of Immigration Judge Ford in the First-tier Tribunal was not infected by any error of law and that her findings should stand. IJ Ford, by her decision promulgated on 19 May 2011, had dismissed the applicant's appeal on asylum grounds, human rights grounds and humanitarian protection grounds.
2. Only two grounds of appeal are advanced. Sullivan LJ refused permission on the papers on 3 May 2012. As the proposed appeal is a second appeal, permission will be refused unless the appeal satisfies one of the criteria in CPR Part 52.13. Guidance as to the application of second appeal criteria in appeals of the present nature from the Upper Tribunal was given by this court in PR (Sri Lanka) v. Secretary of State for the Home Department [2011] EWCA Civ 988. It is said in the present case that the two grounds of appeal qualify under both heads of Part 52.13. I was also referred by Mr Draycott to two more recent decisions of the Court of Appeal in relation to second appeals, JD (Congo) and others v. Secretary of State for the Home Department [2012] EWCA Civ 327 and SS (Sri Lanka) v. Secretary of State for the Home Department [2012] EWCA Civ 945.
3. It is said, in relation to the rejection of the applicant's case for humanitarian protection, that the appeal will raise an important point of principle or practice, namely as to the correct interpretation and application of article 4(4) of Council Directive 2004/83/EC, the Qualification Directive. That is in the Chapter of the Directive headed 'Assessment of Applications for International Protection' and provides:

'The fact that an applicant has already been subject to persecution or serious harm or to direct threats of such persecution or such harm, is a serious indication of the applicant's well-founded fear of persecution or real risk of suffering serious harm, unless there are good reasons to consider that such persecution or serious harm will not be repeated'.

4. In my view there is no arguable point that can be founded on a suggested failure by IJ Ford to have regard to, or apply, the burden of proof provisions of article 4(4). That is because, in light of all the evidence, she declined to find that the serious injuries that the applicant suffered when in the company of the Taliban were the result of persecution or were relevant harm.
5. The applicant places reliance, however, on what she said at paragraph 60:

'I accept that the Appellant was injured during the time that he spent with the Taliban and whether this was the result of fighting with coalition forces or the result of being hit by members of the Taliban or Hizb-i-Islami remains unclear. I have taken the Appellant's mental difficulties into account but there are still significant differences that cannot be ignored between his account of his first encounter with the Taliban as given to Mr Henderson and his account as contained in his witness statement.'

It is said that, whilst that finding is not to the effect that the applicant's admitted injuries had been inflicted by the Taliban or Hizb-i-Islami, or therefore that they amounted to relevant persecution or harm, IJ Ford was not excluding the possibility that they might have been.

6. That involves a misreading of the judgment. IJ Ford explained in paragraph 17 the account of his injuries that the applicant had given to Mr Henderson, a consultant plastic surgeon. She explained in paragraph 18 the fundamentally different account that the applicant had given in his witness statement. She explained her findings of fact and conclusion in paragraph 46ff. She found, in paragraph 59, that the applicant was involved in a violent episode leading to his serious injuries. Because of the inconsistencies of the applicant's account, she there made clear that she did not accept that he had been forcibly recruited by the Taliban. She then said what she did in paragraph 60. In my judgment, it is apparent from her judgment as a whole that she was not, in paragraph 60, leaving open the possibility that the applicant might have been the victim of persecution or serious harm at the hands of the Taliban. All that she was saying was that she accepted that the applicant did suffer injuries during his time with the Taliban but that, having rejected his account of how they came about, she was unable to find how they did come about. That was an understandable disposal of that part of the factual inquiry before her. She rejected the applicant's explanation and no other explanation was before her.
7. That assessment of her findings is substantially the same as was adopted by Judge Bowen in paragraph 32 of his judgment in the Upper Tribunal and by Sullivan LJ when refusing permission on the papers. In my judgment, IJ Ford's findings precluded any engagement of article 4.4. There is here, therefore, no basis upon which the first ground of appeal would have a real prospect of success, nor would it satisfy either of the second appeal criteria.
8. During the oral argument, Mr Draycott focused attention on the point that IJ Ford had, he submitted, ignored the guidance provided by Brooke LJ in Karanakaran v. Secretary of State for the Home Department [2000] 3 All ER 449, at 469:

'… In the present public law context, where this country's compliance with an international convention is in issue, the decision-maker is, in my judgment, not constrained by the rules of evidence that have been adopted in civil litigation, and is bound to take into account all material considerations when making its assessment about the future.

This approach does not entail the decision-maker (whether the Secretary of State or an adjudicator or the Immigration Appeal Tribunal itself) purporting to find "proved" facts, whether past or present, about which it is not satisfied on the balance of probabilities. What it does mean, on the other hand, is that it must not exclude any matters from its consideration when it is assessing the future unless it feels that it can safely discard them because it has no real doubt that they did not in fact occur (or, indeed, that they are not occurring at present. Similarly, if an applicant contends that relevant matters did not happen, the decision-maker should not exclude the possibility that they did not happen (although believing that they probably did) unless it has no real doubt that they did not in fact happen.'

9. Mr Draycott thereby seeks to make good the point that as, so he submits, IJ Ford did not in paragraph 60 exclude the possibility that the applicant had been subjected to relevant harm or persecution at the hands of the Taliban, she could not properly omit to take into account when assessing the risk to his safety on return to Afghanistan the possibility that he had. Again, that submission is based on the premise that IJ Ford had left open that possibility. As I have said, I do not so read her judgment. Mr Draycott made the same point to Judge Bowen in the Upper Tribunal but it made no impression on him. IJ Ford gave a full and clear explanation as to her reasons for finding that the applicant would not be at risk on his return.
10. The applicant has a second ground of appeal, based on the contention that IJ Ford was wrong to reject the assertion that, if the applicant had been persecuted by the Taliban as he claimed, it was for a Geneva Convention reason of 'religion'. I need say no more about that because Mr Draycott accepted that, if the first ground of appeal did not merit the giving of the permission, nor could the second, which was essentially parasitic upon it.
11. I refuse permission to appeal.