England and Wales High Court (Administrative Court) Decisions

IN THE HIGH COURT OF JUSTICE NO: C0/5073/98
QUEEN'S BENCH DIVISION
CROWN OFFICE LIST

		Royal Courts of Justice Strand London WC2
		Monday, 17th April 2000

Monday, 17th April 2000

1. MR JUSTICE NEWMAN: This is an application for judicial review in connection with the refusal of the Immigration Appeal Tribunal, dated 4th August 1998, whereby the tribunal refused leave to appeal from a decision of a Special Adjudicator, which was promulgated on 14th July 1998. The hearing of the appeal to the special adjudicator concluded on 23rd January 1998.
2. The applicant is a citizen of India - a Hindu who comes from the Punjab. He arrived in the United Kingdom on 29th February 1996 and he immediately sought asylum. The challenge to the findings of the Special Adjudicator on credibility comprise is a challenge on credibility with a difference. The difference is the first ground taken by Miss Bond, who has very ably put the various points that there are to be made. The first ground is that, contrary to the rule of thumb practice laid down by the tribunal, this special adjudicator, having completed the hearing on 23rd January 1998, did not promulgate her decision within three months.
3. The detail as to that is advanced by the terms of the tribunal's holding in this regard. The determination was first sent for typing, according to the file, on 6th May 1998, not an unreasonable delay. Thus argument before this court has proceeded on the basis that the Special Adjudicator did not make up her mind until some 12 days had expired after the rule of thumb period of three months had passed.
4. The second ground of challenge is that the Special Adjudicator was unfair and that such unfairness constituted a breach of natural justice. The third ground of challenge is that there was no adequate weighing of the objective material; no adequate consideration given to it, and no proper evaluation of the applicant's case against the background of the objective material. Fourthly, that there had been no proper assessment of the medical report which was before the Special Adjudicator.
5. As to delay, Miss Bond drew my attention to the Court of Appeal decision in Sambasivam v Secretary of State for the Home Department 2000 Immigration Appeal Reports 85, where the Court of Appeal had occasion to consider the operation of the rule of thumb for the promulgation of the determination and reasons of a Special Adjudicator. It is unnecessary for me to set out the background to the position through the various cases, suffice it to begin consideration of the point by reference to a passage on page 19 of Potter LJ's, judgment:

"It appears also that, in cases where the date of promulgation is more than three months after the hearing, the Tribunal seeks to establish from the case file whether the determination was in fact prepared or delivered for typing within such period, the time being exceeded for administrative reasons only. If, however, that cannot be established, the matter is resolved in the appellant's favour and remitted for a de novo hearing in the absence of particular circumstances, for example where there is contemporaneous indication of the adjudicator's views on credibility."

6. Reference is then made to a case of Bustante. By reference to the case of Mario Potter LJ observed that it was no more nor less than a useful statement of guidance to practitioners upon the usual attitude and likely decision of the tribunal.

"...in a case where an issue essential to the disposition of the claim for asylum depends upon a careful weighing of the credibility of the applicant and yet it appears that the delay between the hearing date and the preparation of the determination exceeds three months..."

7. The court made it plain that the rule of thumb must be applied to the particular circumstances in each case, and suggested from the cases the considerations which might be relevant and circumstances which would be pertinent in deciding whether the rule of thumb would apply so that there would be a rehearing. In the middle of that passage Potter LJ observed:

"Equally, as the Tribunal considered in this case it may be clear that, making all proper assumptions in favour of the appellant, his case would nonetheless fail to satisfy the necessary requirements for asylum to be granted. Bearing in mind the almost infinite variety of circumstances which may be operative in any given case or claim for asylum, it is unlikely that resort to close comparisons between different applications and their outcomes will be useful...."

8. Having regard to that case and to the submissions which have been made, I approach the challenge mounted by Miss Bond with a stringent approach to the determination and reasons. The stringent approach requiring that the findings on credibility should be approached with a particularly critical eye. I am not convinced that scepticism expresses the approach that this court should have. The critical eye should be astute to see whether the findings are consistent within themselves and astute to determine whether the finding are of a character for which the passage of time would create a risk that the recollection of the Special Adjudicator had significantly suffered, so as to leave one in a state of unease about the cogency of the findings. Of course, in any event, following Sambasivam, one must also have regard to any other matters that are there which effect credibility, which do not even give rise to a question of recollection, for example, evolve from consideration of matters which were not even in dispute, common ground matters, or where documents are involved. That being, in my judgment, the correct approach, I ought now, in order to record the steps in the argument, set out the conclusions which are at play.
9. The format of the Determination and Reasons is a little unusual (I would not say idiosyncratic). There is an extensive recitation of the applicant's case, and to a certain extent an extensive recitation of the course of the evidence. A complete reading of the Determination and Reasons requires one to approach those parts, which are normally nothing other than recitation, and to have regard to many additions in brackets, which amount, if not to a conclusion, at least to a comment, which would indicate the adjudicator's response to the evidence. As I have said, there was an extensive setting out of the evidence which, in itself would indicate to me (particularly from the entries in brackets) that the detail of the written record or note which the Special Adjudicator took and which reflected contemporaneous conclusions. I will give an example: at one stage the evidence involving whether or not friends had been killed in a forced encounter by the police, or how it was that the police were killed, the adjudicator put in brackets:

"...(he was very garrulous at this point and the question was put again). He replied in February."

10. That is the answer on the evidence. Then again:

"(There was a short break at this point)"

11. Then the adjudicator at another point notes:

"(The adjudicator said there seemed to be some confusion and the question should be put again.)"

12. Thus one is bound to observe that the material from which the adjudicator was working is likely to have been alive to her. The Adjudicator managed to create from her own note something of the atmosphere which prevented in the course of the hearing.
13. Having dealt with submissions on behalf of the appellant at some length, and having reminded herself of the standard of proof, the conclusion to which she came, having commented upon various aspects of the evidence he had given, was as follows:

"Given my view of the appellant's credibility, I am not prepared to accept the appellant's claim that he has a well-founded fear of persecution if he should return to India. Even if the appellant has been involved in politics in India as he says, it is as a member of a legitimate political party. Apart from two incidents when he was arrested and quickly released without charge he has failed to convince me that he has been harassed by the authorities. For the reasons given above, I do not accept the veracity of the affidavits. I find that his journey to England was not made in order to flee from persecutors, but ... for economic purposes or to avoid prosecution...

I have come to the conclusion that on the totality of [the evidence] for the reasons given above, the appellant has failed to discharge the burden on him. I am not satisfied that the appellant has a well-founded fear of persecution for a Convention reason."

14. One needs in order to see how that conclusion is reached, to go to paragraph 33 where there appears a mismatch of assessments. First, and I set it out since it is relevant to the unfairness ground, the Adjudicator said:

"I had the opportunity of observing and hearing the appellant give evidence and I do not find him to be credible. There were aspects of his evidence which seriously detracted from his credibility and that of his claim. At times he was hesitant and evasive and at other times avoided the questions put to him by being garrulous."

15. Then the next sentence commences with a finding in his favour:

"I accept that the appellant had been detained twice by the police and that he may not have been able to tell the exact period of detention."

16. That was a reference to a point that had been taken against him as to his recollection of the period of his detention. Then the Adjudicator referred the applicant's admission in cross-examination that he had not encountered any problems until 1996, although he had been a member of the All India Sikh Student Federation for 18 months without harassment to him. Again:

"...on [his] own admission, he was released without charge [that is from his two detentions] and no arrest warrant was produced."

17. Then rather than making a finding on his credibility the adjudicator went on to say:

"I do not find it credible that the authorities would have released him on both these occasions if they had really suspected him of terrorist activities."

18. Then the Adjudicator moves back to an assessment of the applicant's credibility:

"Furthermore, if the appellant had been as badly treated ... as he claimed, it would seem strange that he did not immediately plan to leave India upon his first release rather than wait until his second..."

19. The Adjudicator then sets out her finding in relation to the medical certificate, to which I will return since it comprises a discrete ground. The Adjudicator then made a comment about the documents, which she felt had been altered. She recorded that she found the applicant's explanation of this to be confusing and unconvincing.
20. Next the reasoning went on to make reference to the alleged conflict of evidence over the killing of two members of the Federation, who had been arrested by the police. The Adjudicator concluded that the applicant's version appeared to have taken on a somewhat different meaning as it had been given.
21. Another aspect, which plainly had some significance, is that the adjudicator concluded his account of his flight was not credible. The fact that he was able to board the plane without any problems suggested that he was at the time in possession of a valid passport and visa for the United Kingdom and was of no interest to the authorities.
22. So, as I have indicated, one has, without intending to be critical, what is a mismatch of material: some of it subjective some of it objective; some of it comprising decisions by way of inference from material which one has to, as it were, unscramble from this Determination and Reasons; then particular passages to which Miss Bond has played close attention in her argument and then the objective material, which is very shortly dealt with and I will set it out:

"I am aware that in recent years India has suffered considerable disorder and the Punjab has been the scene of an increasingly violent campaign by Sikh extremists and their supporters. I note that Secretary of State was of the opinion that security forces in the Punjab had to take measures to control serious terrorist crime in order to maintain law and order. I also note the Secretary of State's view that there has been a return to normality in recent years. Furthermore, the AISSF is not a proscribed organisation and membership is not in itself a ground for a granting of asylum. The appellant was twice released without charge, and if he were to returned to India and further charges brought against him, he could expect to receive a fair trial. Of the fact that India needs to improve certain aspects of its human rights record, there is no doubt. The appellant may well have been arrested as he says and suffered some ill-treatment whilst in detention. However, I have to be satisfied on the appropriate standard that this particular appellant, if returned to India, would be persecuted." and then a finding which I have set out that the Adjudicator was not prepared to accept that he had a well-founded fear of persecution.

23. Well I have set out enough to explain the material that there was, which the special adjudicator considered and upon which she expressed her conclusions. In my judgment, the difficulty that Miss Bond's submission faces on the particular circumstances of this case is that, as to the core facts, it is not a case in which the application was rejected because he was not believed in any respect at all. He was believed in his account on certain core facts: the fact that he had been detained; the fact he had been maltreated; and the fact that he had been a member of the Federation. What was in issue and was for the Special Adjudicator to consider on all the material she had and to form a view about was his present state of mind as to what would happen in the future and, in that, obviously her assessment of his credibility was important. What she had to do, as Miss Bond rightly submitted, was to weigh that along with the objective material and she had to determine, given that she accepted his core facts, whether the objective material pointed or supported a conclusion that he was at risk should he be returned.
24. Although in order to demonstrate it one has had to cover a lot of ground by way of recitation, I am not satisfied that this is a case in which the delay has so tainted the ability of the Special Adjudicator to come to a reliable assessment which justifies allowing this application on the principal ground. It is a rule of thumb. The fact that it was only 12 days over is material, although the fact that it was only 12 days does not relieve the court from approaching the Determination and Reasons with the scrutiny, which I have already indicated.
25. It is, in summary, a case in which the adjudicator took account of a number of pieces of the material before her in respect of which she concluded there was implausibility or disparity. She was entitled to do that. Again, in my judgment, the facts here were not particularly complex such that the passage of time would be likely to have a significant effect on recollection, and some of the facts were common ground between the parties and from these she drew inferences.
26. I pass therefore to unfairness. The most succinct way of dealing with unfairness is to take the grounds of appeal as they were advanced to the tribunal in the grounds of appeal, paragraph 7, it says:

"...Counsel raised issues regarding fairness with the SA [which] she did not entertain ..." such as allowing the applicant to give full and detailed responses to questions put to him. It goes on to say:

"The special adjudicator made it a requirement that he gave short responses confined to the understanding of the questions put."

27. Then it suggested that attempts to the get short answers led to the applicant being confused. The grounds state:

"The conduct of the hearing created a degree of fear and anxiety in the applicant which the SA was unprepared to address."

28. The matter has more light shed on it by certain paragraphs in the statement of the trainee solicitor who was there. One gets the flavour of it:

"Furthermore, during the course of Counsel's examination in chief, Counsel commented that she could see that the Appellant was getting anxious. The special adjudicator's response to this was again aggressive and unfair. The SA told Counsel 'to get on with it' and she alone would give the Appellant instructions. Counsel attempted to explain that the Appellant was anxious and referred to comments in the medical report. Moreover, as the Appellant was trying to answer Counsel's questions, the special adjudicator intervened and told the appellant to 'Keep your answers short.' During examination in chief I had understood the interpreter to have made a mistake ... I brought this to Counsel's attention [and the special adjudicator told counsel not interrupt.] When Counsel attempted to explain the situation [she replied] 'Will you please be quite. ' During cross examination the special adjudicator directed the Appellant to give short answers, Counsel objected and explained that the Appellant should be given an opportunity to express himself. The special adjudicator replied [that she did not like counsel's tone or attitude]... I can also confirm that the Appellant expressed his concern about the Adjudicator's approach."

29. I ought to deal with a preliminary point, having some force, which Miss Bond makes, based upon the Tribunal's conclusion on this:

"The adjudicator is very experienced and the Tribunal does not accept that the applicant did not have a fair hearing."

30. The Tribunal then went on to add:

"In any event the adverse findings on credibility are based on the entire evidence and not solely on what the applicant told the adjudicator."

31. As to the second part, I have already indicated my conclusions, but as to the first part Miss Bond rightly points out that the degree of experience which an adjudicator has is by no means a protection against the individual having an unfair hearing. An unfair hearing can arise at the hands of an experienced as well an inexperienced judge or adjudicator.
32. In my judgment, the substance of what comes out of the material I have, which indicates that it probably was a hearing punctuated with quite a number of interventions, is not that this was an unfair hearing but a hearing at which at times the Special Adjudicator felt it was necessary to issue directives in order to keep control of the hearing and to manage it properly. It is on first principle perfectly appropriate for anybody who has management of a hearing, in particular one might say a hearing which is more inquisitorial than adversarial, to keep control by steering it. Nothing that I have seen crossed an acceptable line from that proper case management to unfairness. Some of the difficulty may well have arisen with the way in which counsel was handling the matter, one cannot prescribe standards to be adhered to in that regard. Thus, I am satisfied that there is nothing in that ground of challenge.
33. As to the weighing of the objective material, I have set out sufficient to indicate the handling and mapping out of the material and the findings. Miss Bond was particularly critical of what she categorised as a rather selective piece of analysis by the Special Adjudicator, taking one opinion of the Secretary of State on one hand and then counterbalancing it with another piece of the Secretary of State's opinion on the other. She submitted that this was inadequate.
34. In my judgment, that is not entirely fair to the Special Adjudicator. The Special Adjudicator had set out the material at considerable length, and it is plain that it was not simply that which brought her to her conclusion. The Adjudicator was entitled to pay regard to the fact that the Federation to which he was a member was not a proscribed body; she was entitled to pay regard to the fact that he had been released without charge; and she was entitled to pay regard to the risks attendant upon his return having regard to the overall view she formed as to the human rights record generally and the likely human rights record that there would be in relation to this applicant, as a member of the unproscribed Federation. Despite the urges of Miss Bond, in this regard, I am satisfied that this ground of challenge fails.
35. Finally, there is the medical certificate. The medical report was from a Dr Alec Frank who set out, as is conventional, what he had been told, then he sets out the injuries, scars or marks that he had found on the body and stated this in his conclusions:

"His body shows a number of scars compatible with trauma. He has a back injury limiting back movement with reduced straight leg raising compatible with trauma."

36. The doctor then referred to depressive illness, flashbacks, intrusive thoughts, nightmares and moderate anxiety state.
37. So far as the scarring to the body, it was various and not isolated. In relation to one mark, 9 inches above his buttocks, there were faint irregular marks which, Dr Frank said, may be of significance. But in relation to the other marks, which were on various parts of his body, sometimes on the leg and calf of the leg, there was no other comment attached or following on the particular injury.
38. The Special Adjudicator stated:

"With regard to scarring and injuries, his body shows a number of scars which are 'compatible' with trauma and he has a back injury which limits certain movements. He also suffers from a depressive illness and has a moderate anxiety state. However, such conditions may not arise solely from torture; there may be other explanations or conditions with which these findings would be compatible."

39. That is the finding that Miss Bond has to persuade me is flawed. She submits that this is speculation and that there was no sufficient indication here that the adjudicator was approaching the matter with the right test in mind. Miss Bond submits that there was not sufficient material available to dislodge the prima facie significance that he was somebody who had injuries or scars which were compatible with trauma.
40. In my judgment, the Special Adjudicator was entitled to draw her own inferences from the content of that report. The adjudicator plainly did not misunderstand the content of it. The adjudicator was entitled to consider from the content that the conditions, as observed, being compatible with trauma, were compatible with trauma caused by circumstances other than torture or harassment. That cannot be outside the range of her consideration. The Special Adjudicator was also entitled to look at material, such as the report, in the round and that she did. On that score alone, I am not satisfied that Miss Bond is right in her submission that there was only one conclusion to draw from this, namely that this report corroborated the account of the applicant.
41. In my judgment, the Special Adjudicator was entitled to take the view that the evidence was neutral which was, in effect, the conclusion to which she came. Thus, for all those reasons, in my judgment, this application for judicial review must be refused.
42. MISS BOND: My Lord, the applicant is legally aided and I am asking for it not to be enforced without leave of the court.
43. MR UNDERWOOD: I am not even asking for it.
44. MR JUSTICE NEWMAN: You are not asking for it. Thank you. Anything that I have missed Miss Bond?
45. MISS BOND: I was going to make an application for leave to appeal. My Lord, in my submission the whole article 6 aspect and the procedural fairness of the conduct of a hearing is a suitable issue for the Court of Appeal to consider, especially given the particular circumstances in this case where there was prima facie medical evidence which your Lordship indicated the adjudicator did not reject, she merely held it to be neutral. This applicant was suffering from a severe case of depression and anxiety brought by his experience, which again the adjudicator does not reject, she accepts.
46. My Lord, in my submission, in those circumstances, the Court of Appeal can and should consider whether in these particular circumstances there has been a breach of the requirement of natural justice in the conduct of the hearing on the part of the adjudicator, given that she must take the applicant as she finds him. While you or I, my Lord, might look at the procedures and think that they were perhaps close to the edge, we have to be concerned with justice not only being seen to be done but being actually being done. The important person, in these circumstances, in my submission, is the applicant and what the applicant felt.
47. It is entirely right, my learned friend drew it to the court's attention, that there had not been any evidence from the applicant. Of course it will be a matter, if the matter goes further to the Court of Appeal, in my submission it should, for the applicant to provide such evidence to the court as to what he felt the consequences were at the time. I have no doubt in my mind whatsoever that the consequences of the adjudicator's decision would be sufficiently fresh in his mind, given their consequences to him, for him to be able to provide a useful recollection and useful evidence to the court on that point.
48. There is, in my submission, a second point on which your Lordship should grant leave to appeal against your Lordship's judgment and that is the approach to the medical report. There are very, very many cases in which asylum seekers do seek to rely on medical evidence as corroboration of their claims. Your Lordship ruled that in these circumstances it could be held to be corroboration. In my submission, there is no other purpose for adducing such evidence before the special adjudicator. In my submission, it is not a case where we are concerned with the pure rules of evidence that corroboration could otherwise apply, as in other criminal cases, independent corroboration from a medical expert is virtually the only kind of evidence about their own particular experiences which an asylum seeker can adduce. In those circumstances, it assumes a greater deal of weight on the part of the person adducing it and it ought to assume a greater deal of weight on the part of the court or tribunal considering the evidence.
49. In those circumstances, my Lord, I also submit that the adjudicator's approach in saying that it was entirely possible that there was also some explanation is also a manifest example of the adjudicator applying the incorrect standard of proof to the evidence in this case. The adjudicator does not have to be satisfied that the injuries were caused as the applicant claimed, she merely has to be satisfied that there was a reasonable degree of likelihood. That, in my submission, was discharged by the evidence before her and would have been discharged had she directed her mind properly to the standard of proof. My Lord, those are my submissions.
50. MR JUSTICE NEWMAN: Thank you. What would you like to say, Mr Underwood?
51. MR UNDERWOOD: My Lord, in respect of the article 6 point if and insofar as my learned friend says this is fresh evidence and that we ought to entertain the Court of Appeal with that (inaudible). In my submission in the absence of fresh evidence (inaudible) what the applicant felt that goes nowhere. So far as the remainder of the submission goes the fact that my learned friend is driven back to arguing the case again shows there is a discrete point of law to be advanced in the Court of Appeal.
52. MR JUSTICE NEWMAN: Thank you very much. (To Miss Bond) You must take your chance with the Court of Appeal if you want to pursue it further, Miss Bond. Thank you.