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Cite as: [1999] EWHC Admin 823

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QUEEN v. IMMIGRATION APPELLATE AUTHORITY Ex parte MUKHTAR SHALA MOHAMMED [1999] EWHC Admin 823 (14th October, 1999)

Case No. CO/918/00
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
CROWN OFFICE LIST

B e f o r e
THE HON MR JUSTICE NEWMAN

BETWEEN
THE QUEEN
- v -
THE IMMIGRATION APPELLATE AUTHORITY
Respondents
Ex parte
MUKHTAR SHALA MOHAMMED
Applicant

Miss Rima Baruah & Mr O'Connor (28/07/00), instructed by Dozie & Co, Solicitors for the Applicant
Miss Jennifer Richards, Instructed by the Treasury Solicitor for the Second Respondent
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(Transcript of the Handed Down Judgment of
Smith Bernal Reporting Limited, 190 Fleet Street
London EC4A 2AG
Tel No: 020 7421 4040, Fax No: 020 7831 8838
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Judgment
As Approved by the Court
Crown Copyright ©

Mr Justice Newman
This application for judicial review challenges the decision of a Special Adjudicatordated 14 October 1999. He dismissed the applicant's appeal against the refusal of asylum.
1. Miss Baruah. counsel for the applicant, submitted that the Special Adjudicator erred in law in concluding that two documents produced by the applicant at the hearing were forgeries. He concluded:
"I agree it would have been interesting if both documents had been put to UNHCR for verification; but there is no question of any expert examination being required to show they are forgeries. I have no doubt the letter is a forgery; while I see no reasonable likelihood the card is not, if it did have any connection with the UNHCR, it had none with the claimed life history of this appellant."
3. Miss Baruah relied upon two decisions of the Immigration Appeal Tribunal: Francisco Smalto Makozo v The Secretary of State for the Home Department (unreported, transcript dated 12 February 1999, and Akmed Hafiz Hussein Chowdhury v The Entry Clearance Officer at Dhaka (unreported transcript dated 30 December 1994). She submitted that the case of Makozo established that it was not sufficient to rely upon bald assertions made on behalf of the Home Office, that documents are forged. As a matter of general principle, direct and or expert evidence is required. She submitted that the case of Choudhury supported her contention in connection with the need for expert evidence to be provided by the Home Office. She emphasised that the burden lies upon the Home Office and the above cases established the manner in which that burden was to be discharged.
Makozo
4. In Makozo, death certificates had been produced to verify the death of the appellant's mother and child, his wife and another daughter. The Adjudicator had rejected the certificates as being forged, even though the certificate relating to the death of the appellant's first wife had been accepted by the United Kingdom Registrar of Births Deaths and Marriages when the appellant was married. The appellant had not claimed that he had obtained the death certificates himself. They had been obtained in his absence. He did claim that he believed them to be genuine. The Tribunal noted the facts of the case and that rejection of the documents carried serious consequences, one at least being that the appellant was open to a charge of bigamy. In a particular passage, relied upon by Miss Baruah, it stated as follows:
"One asks upon what basis the Adjudicator came to such a drastic conclusion. None that we can see, except of matters of which the Adjudicator can have little knowledge. It has long been a practice, and we think that it is now settled as law, that if the Home Office quite specifically challenge a document as being forged, the burden lies on them to prove it to be so. They must produce some evidence to show why. They have not done so in this case. The most that they have done is to challenge the appellant's evidence and put the documents in issue. This falls far short of there being sufficient evidence upon which to find that they are complete forgeries."
Chowdhury
5. In Chowdhury the presenting officer had submitted that two documents, a letter from the appellant's father, and a letter from the principal of his college, were typed on the same typewriter. The Adjudicator concluded that the documents were "apparently forged". The Tribunal stated, in the passage upon which Miss Baruah relies,
"Are these documents forged or not? To say that they are apparently forged might mean simply they are genuine documents which look as though they have been forged. This is again with respect not a clear finding of fact. The submission by the presenting officer below that these documents were forged was one entirely unsupported by expert evidence. The examination of questioned documents is pre-eminently a task for forensic scientists and in the Tribunal's view the forgery point should not have been taken without forensic support. In all the circumstances the determination below cannot stand and we set it aside."
6. Miss Richards for the Respondent pointed out, in my judgment correctly, that these cases could not provide a good ground of challenge unless Miss Baruah could submit that a particular rule of evidence applied in asylum cases in connection with the validity of documents which did not apply in all other cases. In my judgment, again correctly, she submitted:
(i) that the passages from the cases relied upon did not support such a general principle; and
(ii) if they did, there was no foundation in law for special rules to apply.
7. In Makozo the Tribunal, so far as it referred to clear, settled law, followed the principle that the burden on an issue of forgery lies lying upon the Home Office. In stating "they must produce some evidence to show why", the Tribunal was not laying down that only if evidence was produced by the Home Office would a Special Adjudicator be entitled to conclude that a document is forged. The requirement is that there must be some evidence, whatever its source, and a source is the document itself. Chowdhury does not advance the submission for the applicant, for that was a case in which the Tribunal concluded there was no evidence at all. Further, it was a case where the nature of the allegation required forensic evidence.
8. In the case under appeal the Special Adjudicator set out his reasons for concluding the documents were forgeries as follows:
"Having worked for UNHCR myself in the past, I should be the last to suggest that it is an infallible organisation; but I do not think any expatriate member of staff, particularly the English speaker who the appellant says handed out the letter, would have seen any useful purpose in filling in and handing out a pro forma with the particular spelling mistake shown on this one. As for the card, it does not agree in any way with the appellant's own story, except for his name and birth details; there is no imaginable reason why a document issued in l999, recording someone's arrival that year, should give his arrival and its date of issue as 1994; or his occupation as a mechanic, when he had always been a fisherman. I agree it would have been interesting if both documents had been put to UNHCR for verification; but there is no question of any expert examination being required to show they are forgeries. I have no doubt the letter is a forgery; while I see no reasonable likelihood the card is not, if it did have any connection with UNHCR, it had none with the claimed life history of this appellant."
I need say nothing further about the identity card. As to the pro forma document or letter, the Special Adjudicator paid particular attention to the following mis-spellings: "appriciated providing him/her with any assistence that he/she may be in need thereof". The document is dated 21 September 1991 and refers to an identity card No. 2188, whereas the identity card is dated September 1994 and is numbered 2l64. Neither document therefore supported the authenticity of the other. Nor were they ........ [?]
9. Furthermore, it was not simply his consideration of these documents which led to the rejection of the applicant's appeal. His conclusions as to the documents, as Miss Richards submitted, have to be considered in the context of all the other evidence which was available to him from the applicant. The applicant demonstrated a limited knowledge of what was, on his own case, his own language. He demonstrated a lack of knowledge about matters relating to Somalia. The inconsistencies between the documents and the applicant's own evidence, to which the Special Adjudicator referred, were very significant. There was ample material to justify the conclusion which he reached [ ] the documents, putting aside the view he expressed about the appearance of the applicant and reference to his own experience of the UNHCR.
9. Although I was informed that fresh material going to the authenticity of the documents had come to light since the hearing, which it was accepted would be relevant to the exercise of my discretion should I conclude that there was a sound ground of challenge, the material was not divulged to me until after argument on the above issues had been concluded. In my judgment the Special Adjudicator was entitled to come to the conclusions to which he came as to the reliability and genuineness of the documents and for the reasons he gave. If he was not entitled to have regard to his own knowledge as to the appearance of Somalians and UNHCR experience, then his conclusions on the documents, being correctly considered in relation to the other evidence in the case, and in particular the frailties which appeared on the face of the documents, was amply supported by the other material before him.
Reliance on his own experience
10. It was submitted that the Special Adjudicator had erred in relying upon his own experience when drawing conclusions as to the appellant's nationality. He referred to the appellant, not looking like any of the "very many Somalis I have dealt with over the years". He also made reference to "having worked for the UNHCR in the past". It should be noted that the question of nationality was central to the determination and the Special Adjudicator recognised this. He directed himself in accordance with law and the case of Ivanoff. He stated "If I find he is not a Somali, there is no basis for his claimed fear of persecution in Somalia, and the appeal must be dismissed". The Special Adjudicator set out the history, as it had been given to him, by the appellant:
"He said he was a member of the small Bajuni tribe (from the Kismayo, rather than the Kiamboni section) and grew up speaking that language, though he also described it as Somali: he didn't go to school in Somalia, and though he had been with other Somalis, including his sister, in the camp, until he was l7, he could now only speak a little of the language, though he did understand it.
In considering the evidence given by the appellant as to the details of his claimed country of origin the Special Adjudicator observed:
"As I know from several years regularly hearing Somali cases ...."
Then later, when dealing with the appearance of the appellant the Special Adjudicator said:
"One piece of evidence was literally staring me in the face, so I asked the appellant whether all Bajuni looked like him, which he said they did. Asked how he could be recognised as a Somali, he said by his speech; and a fellow-Bajuni would recognise him as such. I put it to the appellant that he looked nothing like the vast majority of Somalis, but he said he did."
Then, under the heading, Conclusions, the Special Adjudicator stated:
"This appellant looks nothing like any of the very many Somalis I have dealt with over the years. Kismao is a border town, and I have considered the possibility that the Bajuni are a marginal tribe who look very much more like their Kenyan neighbours (as does this appellant: I have dealt with very many of their cases too). However, this possibility is negated by what he said himself about having to take refuge from the general ill will against Somalis when the camp was closed down; and about looking like the vast majority of Somalis himself. If Bajuni is a dialect of Somali proper, as to which there is no evidence, that is a language from a wholly different group (Hamitic from Swahili (Bantu)). If it is more like a dialect of Swahili, that would explain how this appellant got into fishing at Lamu, and why he can speak nothing but Swahili for practical purposes at this time; but I do not accept that he would have forgotten anything amounting to, as he suggested, a separate language, which he would have spoken daily until he left the camp at l7 and perhaps afterwards, when he was in touch with his sister. Having worked for UNHCR myself in the past I should be the last to suggest that it is an infallible organisation, but I do not think any expatriate member of staff, particularly English speaker who the appellant says handed out the letter, would have seen any useful purpose in filling out and handing out a pro forma with the particular spelling mistakes shown on this one."
11. It did not seem entirely clear to me, on first consideration, what sources of information or experience were being drawn upon by the Special Adjudicator to justify his claim to have knowledge of the normal appearance of a person from Somalia. Having heard argument and considered the Determination and Reasons further, I am satisfied that he was referring to the cases which had come before him. It is accepted that experience and knowledge is derived by Special Adjudicators from an abundance of objective material regularly placed before them. There can be no objection to them drawing upon it in their determination of cases. I see no reason in principle why an acquired knowledge as to the common appearance of persons from a particular part of the world should be excluded from the category of admissible material. That said, I am bound to express a strong note of caution about the manner in which such personally acquired material is used. It must be recognised that evidence having the character of a very personal judgment and assessment made by the fact finder gives rise to particular difficulties for the parties. It is one thing to have in mind objective material, the content of which, if challenged, could be resorted to in order to facilitate representations to the contrary. It is another thing to resort to a source of knowledge which is, in essence, personally stored. In order for it to be scrutinised, limited headway could be made by ascertaining the number of cases in which the particular adjudicator had dealt with Somalian cases. But that would be no help in connection with the appearance of each of those individuals in those appeals. Reliance therefore on such personally acquired information gives rise to a significant risk of unfairness to an appellant who will be in no position to test the reliability of the matters being held against him. It should invariably, in my judgment, be avoided.
12. As to the observation of the Special Adjudicator to the effect that he had worked for UNHCR, his conclusion appears to have been that he could not see why any English speaker would have had any useful purpose in filling out a pro forma with the particular spelling mistakes shown on this one. As Miss Richards submitted, his observation that he had worked for UNHCR added nothing. She invited me to regard it as "a throwaway line". I agree that it should be so regarded, but I also agree with Miss Baruah that there is no place for such "throwaway lines" in the Determination and Reasons of a Special Adjudicator.
13. I have anxiously considered whether these criticisms, which can legitimately be made of the Special Adjudicator's Reasons, vitiate the determination. In my judgment they do not, for the following reasons:
(1) The Special Adjudicator put it to the appellant that he looked nothing like the vast majority of Somalis.
(2) His conclusion was not determinative, nor was the weight he attached to it reached without consideration of other points, being points which were, if formed, capable of being in favour of the appellant. The Special Adjudicator was at pains in his conclusions to consider ways in which the position could be reconciled. He tested his own conclusion by reference to the other evidence in the case and carried out a sufficient balancing exercise.
(3) The Special Adjudicator made it plain that he had dealt with Somali cases over several years, "regularly". He also stated that he had dealt with very many cases of Kenyan citizens. In my judgment it cannot be assumed that the knowledge of the Special Adjudicator in this regard has been superficially acquired. Nor, having regard to the care with which he considered the issues, would I conclude that this Special Adjudicator would refer to these matters unless he had a properly based degree of confidence in his own judgment.
(4) There was, in any event, sufficient material apart from the matters under criticism which entitled the Special Adjudicator to come to the conclusion he reached.
For all these reasons this application for judicial review is dismissed.
Friday, 28th July 2000

MR JUSTICE NEWMAN: For the reasons which appeared in a draft judgment which has been distributed, and which in its final form is now handed down, this application for judicial review is dismissed.

Miss Richards?

MISS RICHARDS: My Lord, we do not seek any order as to costs.

MR JUSTICE NEWMAN: Thank you. Mr O'Connor, is it?

MR O'CONNOR: My Lord, yes. Ms Baruah extends her apologies to the court. I do ask for detailed assessment, my Lord.

Just as a matter of record at this stage, I do ask for permission to appeal.

MR JUSTICE NEWMAN: Thank you very much. There shall be an order for detailed legal aid assessment. Permission to appeal is refused.

MISS RICHARDS: My Lord, can I make clear so that the applicant's representatives are in no doubt, it is likely that the applicant will be removed to Tanzania over the next few days. Thus, if there is to be any renewed application for permission to appeal to the Court of Appeal, I suggest that that is made as a matter of extreme urgency and that the Treasury Solicitor is notified immediately that is made.

MR JUSTICE NEWMAN: Thank you very much. Thank you both.

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