QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
B e f o r e :
|THE QUEEN ON THE APPLICATIONS OF (1) KO KO NAING (2) MISAL EYAZ||(CLAIMANTS)|
|IMMIGRATION APPEAL TRIBUNAL||(DEFENDANT)|
Smith Bernal Wordwave Limited
190 Fleet Street London EC4A 2AG
Tel No: 020 7404 1400 Fax No: 020 7831 8838
(Official Shorthand Writers to the Court)
MS S HARRISON (insructed by Tyndallwoods, Birmingham B2 5TS) appeared on behalf of CLAIMANT 2
MS J RICHARDS (instructed by Treasury Solicitor) appeared on behalf of the DEFENDANT
Crown Copyright ©
"40. The appellant's position is that he was almost arrested on 5 August and that he left Burma on the same date. However, he also said in his oral evidence that one week before he left the country the authorities had tried to get him and he had fled. It was specifically put to him, by his representative, that he had said that it may have meant that if the authorities had tried to arrest him one week before 5 August, then perhaps he was referring to a date in July when he had fled. The appellant was adamant that he had fled and left Burma on the same date, namely 5 August.
"41. At question 59 of his interview he was asked when did the police try to arrest him and he said one week before he left Burma. That date was 5 August.
"42. There therefore remains, despite the appellant being given every change in examination-in-chief to clarify the position, considerable doubt in my mind as to exactly when this incident took place.
"43. In my view this particular date is of importance in relation to the issue of credibility. This is not a case where the appellant says he does not remember the exact date when an event happened but rather he has given a contradictory account of when the event happened, namely on 5 August 2000 and a week prior to that.
"44. In addition, there is no mention of this incident, which prompted him to leave Burma, in his SEF. I note that at B19 the appellant is asked if there is anything else which he thinks is relevant to his application that he has not recorded elsewhere on this form; then he is asked to give details below. The answer recorded in the SEF is "no".
"45. In addition, it seems to me that the appellant contradicted himself in cross-examination when he said, initially, that the authorities knew he worked at the office which produced the leaflets and when asked why he had not been arrested by the authorities he then said that the authorities never knew he was involved prior to August 2000. It was said for the appellant, in submissions, the appellant had not intended to convey any impression that he himself had been noted by the police, but that is not my record of the evidence and no attempt was made to clarify the matter in re-examination.
"46. I note in the appellant's statement that at paragraph 9, it is recorded that the police had found 'political documents'. There is no elaboration in the statement of what these political documents were and no oral evidence was offered in support of that, except in evidence for the appellant indicating that he adopted his statement as part of the evidence.
"47. In addition I note that in the statement, the appellant says that he paid the agent $4,000. In his oral evidence it was clear that his parents had paid the money and it had not passed through his hands.
"48. In all these circumstances, I am not able to accept the appellant's account of what happened to him around 5 August as reliable or credible. I am therefore not in a position to give the benefit of doubt to the appellant.
"49. I was not referred to any objective evidence, by either party, which might support the appellant's account. Nevertheless, I had regard to all the objective evidence put before me and I note that amongst other abuses, political activists continue to disappear for periods ranging from several hours to several weeks or more. Members of the security forces torture, beat and otherwise abuse prisoners and detainees.
"50. Looking at all the objective evidence, I consider it would be fair to say that the Burmese Government have a poor record in relation to human rights.
"51. It may well be that the appellant suffered appallingly at the hands of the authorities in 1988. The test is whether or not he will face persecution, at this time, if he is returned to Burma. Because I find this evidence contradictory, for the reasons stated, I am not able to conclude that he does have a well-founded fear of persecution.
"52. I have considered the appellant's statement of additional grounds incorporating claims under the ECHR and, because I do not accept the appellant's account of what happened to him in August 2000, I do not consider that the United Kingdom would be in breach of any of its obligations under the ECHR if he was returned to Burma.
"53. For the reasons stated, the appeal is dismissed."
"I believe that the Adjudicator's determination was wrong because -
(1) the Adjudicator has failed to address himself properly to the evidence before him;
(2) the Adjudicator in the light of the evidence before him erred because of the adverse inference of credibility in his determination;
(3) please see attached grounds 'response to the Adjudicator's determination'."
"1. In responding to paragraph 43 of the Adjudicator's determination the Adjudicator is quite right in his view expressed on the second line of this paragraph when he said that 'this is not a case where the appellant says that he does not remember the exact date when an event happened . . . ' As question 59 and 60 of my Statement of Evidence Form (SEF) clearly states that "one week before I left Burma" question 60 the date? Answer the 5 August 2000, I did leave Burma on the 5th August 2000, but I did not leave Bangkok where I fled to until the 12th August 2000, which was the same day as I arrived in the United Kingdom. As stated in response to question 60 also question 63 and 64 of my SEF interview. However, my previous representative got it wrong when as referenced by the Adjudicator, that 'He must have left Burma some time in July 2000'. I have consistently maintained the 5th August 2000, as it was the time the authorities I mean the police tried to arrest me and I fled Burma into Bangkok, Thailand by bus where it took the agent 7 days to arrange my travel to the United Kingdom please see question 1.17 of the statement of evidence form 5. There appears to be some confusion on the part of the Adjudicator aided by my previous representative's suggestion that I must have left Burma in late July 2000, which is erroneous in fact. The Adjudicator has therefore addressed himself to those erroneous facts and his inference of adverse credibility of my claim is unfounded and unsustainable as it flies in the face of all the evidence.
"2. The Adjudicator failed in his duty to examine the documents that were placed before him which would have aided him in clearing the confusion as he has stated in paragraph 43. Furthermore, there are no contradictory account of when the event happened as claimed by the Adjudicator in paragraph 43 of his determination, see SEF interview Q69. Although I did not mention this incident which could have been better completed with the assistance of my previous representatives, the first opportunity that I had to present my case it was mentioned and I was specific with my dates and record of the incident. Unfortunately 'one week before I left Bangkok was entered as one week before I left Burma, which flies in the face of the evidence see question 69'. As I had stated I was in Bangkok for one week. My Standard Acknowledgment Letter states that, I arrived at Heathrow Airport Terminal 3 on the 12th August 2000 from Bangkok Thailand as well as paragraph 1.17 of the SEF.
"3. With regard to paragraph 4-5 of the Adjudicator's determination I had merely sought to clarify the fact that my activities were secret and although supporting the opposition group I had not registered myself as a member of the group following my resignation some time in 1995, when I was forced to sign a declaration that I would not support the group. As stated in cross-examination the authorities had known that I had visited the premises of the group, what they did not know is that I was actively supporting them. I did not work for them. I worked in the family business as a lorry driver, however, because of the planned demonstration of the 8th August 2000 the activities of the group intensified and on the 5th August 2000, it came to the attention of the authorities that I was among those that was distributing leaflets hence the attempted arrest and my escape to Bangkok.
"4. Paragraph 46, there is no reference to 'political documents' as stated by the Adjudicator in paragraph 9 of my statement. If the Adjudicator had wanted to clarify what the political documents were he could have simply asked me questions to clarify the matters to his satisfaction by his own admission. The referred 'political documents' were protest leaflets some of which I was distributing prior to my attempted arrest on the 5th August 2000.
"5. Paragraph 47, it is the tradition in my country that unmarried children work for their parents and their salary/wages are therefore paid to the parents which is why the monies came from my parents, half of the money paid to agent was mine the rest was made up by my parents contrary to the Adjudicator's assertions. The money did pass through my hands, as it was me that paid the agents: see paragraph 9 of my statement."
"This is an application for leave to appeal from a decision of an Adjudicator (Mr JG Macdonald), dismissing an asylum and human rights appeal by a citizen of Burma. Dealing with each of the grounds of the application which raises any reasoned complaint against the Adjudicator's decision.
1. There was no confusion over dates: the Adjudicator was faced with a straight contradiction between the appellant's saying at interview that he had been arrested a week before he left Burma, and in oral evidence that it was on the day he left. He was entitled to hold it against the appellant's credibility.
2. See 1.
3. This seems to mean paragraph 45, not 4-5: the Adjudicator prefaces it 'in addition', and does not seem to regard it as a decisive point. As to the rest, see 1.
4. There is a reference to 'political documents' at paragraph 8 of the statement: the appellant does not improve his case by wilfully neglecting that. Again this is not a decisive point.
5. Nor is this.
Leave to appeal refused."
"19. She acknowledged that she had experienced no further problems with the police after March 1996 until just before her departure from Turkey. She continued with her studies at university at that time and avoided interaction with the police. She began translations for TKP-ML in 1999. Mostly she translated articles but she did herself prepare articles about Turkish corruption in connection with Japanese funds. She did not know if these articles were published. She also worked as a translator for her local municipality that is for the Turkish authorities. She had not tried to explain to the Turkish police why she had material on her computer which was critical of the Turkish government even though she had simply translated this material because she was frightened that the police would take an adverse view. Nevertheless, she acknowledged that it was not illegal to have such articles in her home since the articles did not incite violence.
"20. I accept the appellant's evidence of her university studies -- she studied Japanese and aspects of Japanese culture from 1993 until she left Turkey in 2001, and about her detention and ill-treatment in 1996 after participation in a demonstration about academic matters. I accept that the Turkish police greatly abused their powers in respect of her, that she was threatened, abused, and assaulted, including being raped and that this experience resulted in great distress to her -- she later cut her wrist and needed psychotherapy. According to her first statement, at paragraph 16, after six months of medication and counselling treatment, the appellant's depression reduced very considerably.
"21. I accept also that the appellant attracted no adverse police interest thereafter for several years.
"22. I have to say that I do not accept that the appellant attracted the adverse interest of the police nearly five years later, in January 2001, and is wanted by police now who would ill-treat her, even kill her she claimed, if she returned to Turkey now. She was apparently well-known as a translator and interpreter, indeed she translated for the local authorities. She appeared to concede that she held no illegal material on her computer but had simply been performing a professional function in providing translations. She was not a member of TKP-ML and there is no evidence that any of the articles she translated were published either in an arena which would cause an adverse reaction from the Turkish government, or at all. In any event, there is no indication that she faced any charges as a result of any incident in January 2001. (She was not charged in March 1996 so I find no evidence that she would feature on any police records as someone with outstanding charges so as to attract attention if returned).
"23. The appellant was at pains to say that she was not a member of TKP-ML, nor even involved in their secretarial work (question 42 in interview and in her oral evidence before me) and so, even if she did attract the attention of the authorities for this link with the organisation, it seems to me that she would be identified as a professional translator not a political activist who operated against the government.
"24. I have the greatest sympathy for the appellant's experience in 1996 but I do not find it causal of her eventual departure from Turkey. She recovered, insofar as it was possible to recover, renewed her studies, graduated from her first degree and embarked on a further degree.
"25. Her case is that the police interest in her in January 2001 caused her to fear similar treatment to that of March 1996. I do not find it credible that the appellant, a highly articulate and intelligent woman, would not have tried to explain her circumstances to the authorities given that she had simply translated material which had apparently already been published and which was not then circulated more widely.
"26. The appellant failed to claim asylum on arrival in the United Kingdom.
"27. I have considered whether the appellant should not be returned to Turkey because of the poor experience that she suffered in 1996. I acknowledge that she is being treated by her general practitioner for depression and also receives counselling. I acknowledge the trauma of her 1996 experience which may never entirely leave her. However, the evidence is that she recovered as far as possible at the time, and she received appropriate treatment in Turkey at the time and that she was able to resume her life and her studies. I do not find that experience of 1996 of itself militates against her return to Turkey now.
"28. I have also taken into account whether she may attract the adverse interest of the authorities on return. I note particularly that she is a vulnerable individual given her previous treatment at the hands of the police. However, she faces no charges now. The objective evidence indicates that returnees may be subject to questioning on arrival especially if without proper travel documents and generally to check if there are any outstanding charges or any link with a separatist organisation. I do not find that the appellant will attract attention for any of these reasons.
"29. I find that this is a finely balanced case given the appellant's previous experience, some five years ago and her present state of mind. However, I am not satisfied that there is a reasonable likelihood that she would be persecuted for a Convention reason in Turkey, nor for the same reasons that there is a real risk of any treatment contrary to Article 3 of the ECHR or indeed contrary to any other relevant Article. I have taken into account all the evidence, the submissions made of both representatives and the wealth of material which indicates violations of human rights in Turkey, particularly in detention and refers to the brutality of the police and security forces. Whilst there are restrictions on freedom of expression in Turkey, it is clear from the Human Rights Watch Report of 2001 that the Turkish media and politicians 'furiously debate many issues and openly criticise the government' -- its Article states that those who contradict the official line on the role of 'ethnicity, religion or the military in politics' risk prosecution. The appellant says she translated articles about the Kurds but had no political involvement otherwise in this cause and she was not herself a member of any illegal organisation.
"30. For all these reasons, I do not find that the appellant has discharged the burden of proof upon her. The appeal is dismissed."
"Please find attached further grounds of appeal in this matter. We would request that this matter be given consideration despite the grounds being lodged out of time, given the special circumstances of this case. The above client was only able to have grounds lodged at all by a previous representative with some considerable difficulty. It was in consequence of this and other difficulties experienced with the previous representative that the client has now instructed ourselves in place of . . . [and then the former solicitors are named]."
"This is an application for leave to appeal from a decision of an Adjudicator (Mrs CJ Lloyd) dismissing an asylum and human rights appeal by a female citizen of Turkey. The Adjudicator accepted that she had been raped by the Turkish police after being held at a demonstration in 1996, but not that she had had any further trouble from them or faced any real risk on return now. The proposed grounds of appeal rely on the appellant's continuing disturbed condition as a result of her 1996 experiences. The Adjudicator however considered this at paragraph 27. In the light of her finding that the appellant had managed to go on, undisturbed by the authorities, with her life and studies in Turkey till she came here in 2001, there is no arguable case that to return her there now would amount to 'inhuman or degrading treatment' contrary to Article 3, either because of her mental state in itself or because the Turkish authorities would take any undue interest in her at the point of return."
Leave to appeal was refused accordingly.
"We ask that you extend the time limit set out in paragraph 18(2) of the Procedure Rules because of the special circumstances in this case, including the strength of the grounds now forwarded, the fact that the appellant had considerable difficulties with her previous representative (who lodged the initial ground of appeal, allegedly with reluctance), and the fact that the appellant is an acknowledged torture victim."
The letter went on, at a later stage, to ask this:
"Alternatively, if you do not feel that you have jurisdiction to do this, please give serious consideration to re-promulgating the Adjudicator's decision."
The letter saw fit to conclude with this statement:
"We hope that recourse to the High Court will not be necessary in this case."
"The Tribunal has confirmed its decision to refuse leave to appeal for the following reason(s): There is no claim of administrative or procedural error by the Tribunal in dealing with the original application and grounds of appeal. There is no provision in the Procedure Rules for a second application or [sic] different grounds."
Thereafter the Immigration Appeal Tribunal declined to respond to a repeated request for re-promulgation.
"For the purpose of the present Convention, the term 'refugee' should apply to any person who . . .
(2) As a result of events occurring before 1 January 1951 and owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable, or owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence as a result of such events, is unable or, owing to such fear, is unwilling to return to it.
"1. No Contracting State shall expel or return('refouler') a refugee in any manner whatsoever to the frontiers of territories where his life or freedom would be threatened on account of his race, religion, nationality, membership of a particular social group or political opinion . . ."
"3. The Lord Chancellor may make rules-
(a) for regulating the exercise of the rights of appeal conferred by Part IV;
(b) for prescribing the practice and procedure to be followed on or in connection with appeals under Part IV, including the mode and burden of proof and admissibility of evidence on such an appeal; and
(c) for other matters preliminary or incidental or arising out of such appeals, including proof of the decisions of the adjudicator or the Immigration Appeal Tribunal.
Paragraph 4, in part, reads as follows:
"4. - (1) The rules may include provision-
(a) enabling appeals to be determined without a hearing;
(b) enabling an adjudicator or the Tribunal to allow or dismiss an appeal without considering its merits-
(i) if there has been a failure by one of the parties to comply with a provision of the rules or with a direction given under the rules: or
(ii) if one of the parties has failed to attend at a hearing . . .
It is not necessary to read the rest of paragraph 4. Paragraph 22 of the Schedule confirms the right (subject to section 71 of the 1999 Act, which relates to certification) of appeal to the Immigration Appeal Tribunal of a party dissatisfied with the determination of an Adjudicator. It is to be noted that that paragraph, however, is expressly qualified by the words: "subject to any requirement of rules made under paragraph 3".
"18. - (1) An appeal from the determination of an adjudicator may be made only with the leave of the Tribunal.
(2) An application for leave to appeal shall be made not later than 10 days, or in the case of an application made from outside the United Kingdom, 28 days, after the appellant has received written notice of the determination against which he wishes to appeal.
(3) A time limit set out in paragraph (2) may be extended by the Tribunal where it is satisfied that because of special circumstances, it is just for the time limit to be extended.
(4) An application for leave to appeal shall be made by serving upon the Tribunal the appropriate prescribed form, which shall -
(a) be signed by the appellant or his representative (if he has one);
(b) be accompanied by the adjudicator's determination;
(c) identify the alleged errors of fact or law in the adjudicator's determination which would have made a material difference to the outcome, together with all the grounds relied on for the appeal; and.
(d) state whether a hearing of the appeal is desired.
(5) When an application for leave to appeal has been made, the Tribunal shall notify the other parties.
(6) The Tribunal shall not be required to consider any grounds other than those included in that application.
(7) Leave to appeal shall be granted only where -
(a) the Tribunal is satisfied that the appeal would have a real prospect of success; or
(b) there is some other compelling reason why the appeal should be heard.
(8) An application for leave to appeal shall be decided by a legally qualified member without a hearing.
(9) When an application for leave to appeal has been decided, written notice of the Tribunal's decision on the application shall be sent to the parties and, if granted, the grounds upon which the appellant may appeal.
(10) Where the application for leave to appeal is refused, the notice referred to in paragraph (9) shall include, in summary form, the reasons for the refusal.
(11) Subject to section 77, where evidence which was not submitted to the adjudicator is relied upon in an application for leave to appeal, the Tribunal shall not be required to consider that evidence in deciding whether to grant leave to appeal, unless it is satisfied that there were good reasons why it was not submitted to the adjudicator."
"30. - (1) The appellate authority may, subject to the provisions of these rules, regulate the procedure to be followed in relation to the conduct of any appeal.
(2) The overriding objective shall be to secure the just, timely and effective disposal of appeals and, in order to further that objective, the appellate authority may give directions which control the conduct of any appeal . . . "
It is not necessary to read the rest of Rule 30. Although that in terms refer to appeals, it seems to me that the like objective is implicit in applications for leave to appeal: which is reinforced by the deliberate expression in the rules of time limits and other requirements with regard to applications for leave to appeal.
27.1. The appellate process is part of the refugee and human rights determination procedure.
27.2. It is to be inferred that the United Kingdom does not intend to act in breach of its international obligations and, specifically, its obligations under the Refugee Convention and the Human Rights Convention. Acts of Parliament and subordinate legislation should be purposively construed so far as possible so as to accord with the obligations arising under the Conventions; a position reinforced with regard to the Human Rights Convention by the reading down provisions of section 3 of the Human Rights Act 1998.
27.3. The Immigration Appeal Tribunal is an independent review body with regard to the relevant decision under appeal and access to such body is a fundamental right equivalent to access to a court.
27.4. The relevant authority's examination of a risk of a breach of a right such as that set out in Article 33 of the Refugee Convention or Article 3 of the Human Rights Convention is required to be rigorous and to be one of anxious scrutiny.
"35. Neither leading counsel who appeared before us was concerned to support this dictum of Hobhouse LJ if it was intended to suggest that, even if an appellant does not present a particular argument, a special adjudicator is not obliged to apply his own understanding of the Convention and its jurisprudence to his findings on the facts presented to him. The central issue in these appeals is whether this country would be in breach of its obligations under the Convention if it did not recognise the appellant as a refugee and were to subject him to refoulement contrary to article 33 of the Convention, and we have shown in this judgment that a question whether a particular part of the appellant's home country affords a safe haven or an internal flight alternative is one which may well have to be considered by a Special Adjudicator, whether the appellant raises it or not, when deciding pursuant to Rule 334(ii) whether the appellant is a refugee.
"36. Of course, it may well be the case that once the special adjudicator has rejected the appellant's case that he has a well-founded fear of persecution for a Convention reason if returned to the part of his country to which he is to be sent back, there is nothing else in his evidence which could reasonably support an argument that it would not be reasonable to return him there. This was the reason why this court refused a renewed application recently in ex parte Sureshkumar (CAT, 19 December 1996) even though it knew that leave to appeal had been granted in the preset case and that the appeal had not yet been heard.
"37. It follows from what we have said that it is the duty of the appellate authorities to apply their knowledge of Convention jurisprudence to the facts as established by them when they determine whether it would be a breach of the Convention to refuse an asylum seeker leave to enter as a refugee and that they are not limited in their consideration of the facts by the arguments actually advanced by the asylum seeker or his representative. If Hobhouse LJ's dictum is interpreted as adopting a more restrictive approach to the duty of a Special Adjudicator, then it should not be followed. It has no greater authority than any other observation made in this court when it refuses a renewed application for leave (see R v Kensington and Chelsea LBC ex parte Kihara 29 HLR 147, per Simon Brown LJ at p 162) and this court, which has heard full argument on the present appeal, is not bound by it.
"38. It is now, however, necessary for us to identify the circumstances in which it might be appropriate for the Tribunal to grant leave to appeal on the basis of an argument not advanced before the Special Adjudicator, or for a High Court judge to grant leave to apply for judicial review of a refusal of leave by the Tribunal in relation to a point not taken in the notice of appeal to the Tribunal.
"39. Because the rules place an onus on the asylum seeker to state his grounds of appeal, we consider that it would be wrong to say that mere arguability should be the criterion to be applied for the grant of leave in such circumstances. A higher hurdle is required. The appellate authorities should of course focus primarily on the arguments adduced before them, whether these are to be found in the oral argument before the Special Adjudicator or, so far as the Tribunal is concerned, in the written grounds of appeal on which leave to appeal is sought. They are not required to engage in a search for new points. If there is readily discernible an obvious point of Convention law which favours the applicant although he has not taken it, then the Special Adjudicator should apply it in his favour, but he should feel under no obligation to prolong the hearing by asking the parties for submissions on points which they have not taken but which could be properly categorised as merely "arguable" as opposed to "obvious". Similarly, if when the Tribunal reads the Special Adjudicator's decision there is an obvious point of Convention law favourable to the asylum seeker which does not appear in the decision, it should grant leave to appeal. If it does not do so, there will be a danger that this country will be in breach of its obligations under the Convention. When we refer to an obvious point we mean a point which has a strong prospect of success if it is argued. Nothing less will do. It follows that leave to apply for judicial review of a refusal by the Tribunal to grant leave to appeal should be granted if the judge is of the opinion that it is properly arguable that a point not raised in the grounds of appeal to the Tribunal had a strong prospect of success if leave to appeal were to be granted."
"37. Rule 18(6) is to my mind intended to relieve the IAT of the obligation to consider grounds not raised in the notice of appeal and to restrict the scope of the obligation identified in Robinson v Secretary of State for the Home Department."
"39. Where the power has not been exercised, whether because of a decision not to consider grounds not raised, or because of an omission to consider whether to exercise such a power, that decision or omission does not and cannot of itself constitute an error of law. To hold otherwise would be inconsistent with the restriction set out in rule 18(6).
"40. However, that is a judicially reviewable decision. But in order to show that the decision not to exercise the power, or the omission to consider the exercise of the power, was irrational in the circumstances, or based upon a failure to have regard to relevant considerations, the material relied on would have to be more than that there had been an arguable, or even a strongly arguable, ground of appeal which had not been considered. If that were to suffice, rule 18(6) would simply be turned into an obligation to consider a ground of argument not raised in the notice of appeal. That is clearly not what rule 18(6) envisages."
Determination of Naing
Determination of Eyaz
Conclusion on both cases