England and Wales High Court (Administrative Court) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT

		Royal Courts of Justice Strand London WC2
		21st January 2004

Wednesday, 21st January 2004

MR JUSTICE SULLIVAN:


1. In this application for judicial review, the Claimant seeks a quashing order in respect of a decision of the Immigration Appeal Tribunal dated 1st April 2003, refusing him permission to appeal against an adjudicator's determination dated 6th February 2003, refusing his appeals on asylum and human rights grounds.
2. The Claimant is a citizen of the Democratic Republic of the Congo, the DRC. His claim for asylum was based upon a fear of persecution for his political opinions. He was the Branch President of an opposition party called FONUS. His elder brother, Richard, was Deputy Chairman of the National Party. Richard was granted asylum in Norway in 1998. In the Secretary of State's refusal letter, dated 24th October 2002, the position in the DRC is considered by reference to the country assessments that were available at that time. The letter contended that there had been a relaxation of the restrictions placed on political activity by the former President. The letter referred, for example, to the April 2002 country assessment and said that:

"on 17 May 2001 President Joseph Kabila issued a decree liberalising political activities ... ".

3. The Claimant said that he had been detained on four occasions: 1998, 1999 and in April and August 2002. The Adjudicator accepted that the Claimant had been detained on the first and third occasion, but did not accept his account in respect of the second and fourth detentions.
4. The Claimant gave oral evidence and was cross-examined. The Adjudicator referred to the background documents with which he was provided in paragraphs 4 and 5 of his determination.
5. In addition to a CIPU report on the DRC, dated October 2002, he had been provided with a report by Mr E Kennes, dated 3rd January 2003. The report was an expert report prepared by Mr Kennes in another case. Although the identity of that other Appellant is blanked out, it would appear from the context that she was a Tutsi female. Nevertheless, in addition to dealing with her particular circumstances, Mr Kennes put forward general contextual evidence about the circumstances that prevailed, in his opinion, in the DRC. The Adjudicator also had a copy of the a newspaper report in French with an English translation.
6. The Appellant's account of his four periods of detention was challenged by the Home Office representative. The Adjudicator records her as having submitted that it was unlikely that the Claimant would have been released due to the state of his health after two weeks in respect of the second detention. The Adjudicator also records that the Home Office representative, Miss Mepstead:

"further cast doubt on the account of the fourth detention and questioned the likelihood of his brother and the appellant being released from a cell of some 20 people by a person who was unknown to them."

7. Miss Mepstead invited the Adjudicator to place little weight on the newspaper report because:

"It referred to the appellant having been missed for weeks. In fact, the newspaper article was dated 22nd August and the Appellant alleged that his escape took place on the 18th August."

8. That submission was factually in error because the newspaper report is not dated 22nd but 26th August.
9. On behalf of the Claimant Mr Al-Rashid, who also appeared before me today, refuted the submissions that had been made by Miss Mepstead. He submitted that the newspaper article was:

" ... perfectly plausible. The fact was that the Appellant had been detained on 4th August. No-one knew where he was. His family did not know that he had been either detained or had escaped. It was not reasonable that his uncle would have compromised the family and notified them of the Appellant's escape."

"Turning to the detentions, he pointed out that the account of the release was perfectly plausible. This was where the relevance of the brother came in. The brother's name would have been well known. This was a politically active family. The family friend was in the intelligence service and would have known of the family's political involvement."

"So far as the second detention was concerned, he suggested that it had [been] more prudent for the authorities to have released him, rather than exposing themselves to accusations of ill-treatment had he died in detention."

10. The Adjudicator also records in paragraph 26 of his determination:

"I was asked to consider the objective evidence confirming the conditions in DRC. I was also referred to a recent DRC Report by Mr Erik Kennes dated 3rd January 2002, which indicated that there had been no real change in policy under President Joseph Kabila, and he pointed to reports of failed asylum seekers being arrested and imprisoned on their return."

11. In her submissions Miss Mepstead had made it plain that she was relying upon the reasons for refusal.
12. So the Adjudicator had to reach his conclusions against the background of submissions having been made, on the one hand, that the evidence indicated an improving position in the DRC. That was controverted in Mr Kennes' report, he contended there had been no real change in policy under President Joseph Kabila. In addition, submissions were made as to the plausibility or implausibility of the Claimant's accounts of the second and fourth detentions. Furthermore, there had been argument about the weight to be placed upon the newspaper report.
13. The Adjudicator, in his consideration of the evidence and findings of credibility, dealt with all of these issues. This was not a case where the Adjudicator concluded that the Claimant's evidence as a whole lacked credibility. The Adjudicator made it clear that, while he accepted much of the Claimant's evidence, there were aspects of it that he had not found to be plausible. He accepted that the Claimant was a functionary in his local branch of FONUS. He also accepted that his brother, Richard, had an important role in the party and had left the country in January 1998, seeking asylum in Norway. He accepted the Claimant's account of the first detention, however, he noted that the Claimant had been released after 48 hours, which suggested that he was of no real interest at the time to the authorities. The authorities were interested in tracing his brother, Richard.
14. So far as the second detention was concerned, the Adjudicator did not accept the Claimant's account of that detention. In effect, he accepted the Respondent's contention that it was implausible that the Claimant would have been released on the grounds of his ill health.
15. The Adjudicator accepted the third detention in April 2002 but noted that the Claimant had been released after just one night. Again, the Adjudicator thought that this indicated that the Claimant was of little interest to the authorities.
16. So far as the fourth detention is concerned, the Adjudicator said:

"He claims to have been kept for two weeks and then released following the intervention of a person purporting to be a family friend whom he had never met or even heard mention of. The Respondent has cast severe doubt on this account. Whilst Mr Al-Rashid submitted that the Mr Mozamboka would have recognised the family name as a result of the prominence of brother Richard, I have to agree with the Respondent. This account of an apparent complete stranger taking the risk of arranging the release of two prisoners from a cell of twenty persons is not believable."

17. So far as the newspaper report is concerned, the Adjudicator perpetuated the error that had been made by the Home Office representative and stated that the newspaper was dated 22nd rather than 26th August 2002. The Adjudicator said:

"It refers to him having been missing for some weeks. Miss Mepstead asked me to place little weight on this. It is dated just four days, not weeks, after his escape from prison. In response to this, Mr Al-Rashid points out that seven weeks would have elapsed since his arrest on 4th August. Moreover no-one knew where he was during this period. It is important evidence that should be relied upon. Having studied this article carefully I do find there are inconsistencies that dictate against its veracity. The article states that Appellant had not been seen for weeks and was missing. Yet it also says that the police and security services had been searching for him during this time. If was he was in custody at the time, the police would have had no need to search for him. Moreover the arrest of seven people at the meeting on 4th August in what was apparently a public place would surely not have gone unnoticed. I do not find this consistent with the article and thus put low weight on its credibility."

18. So far as circumstances generally in the DRC were concerned, the Adjudicator said this:

"At the time the Appellant's brother escaped the country, he feared persecution at the hands of President Laurent Kabila. Since 2001, however, under President Joseph Kabila, there has apparently been a relaxation of the grip that the former President had on opposition parties. This is the view of the CIPU and US State Department Reports, although Erik Kennes's most recent Report cast doubt on this, suggesting that there has been no real change in policy under the new President. It also indicates that returned asylum seekers may face interrogation on their return to DRC. I have to weigh this up on the basis of the Appellant's previous political involvement, and also what effect the relationship with his brother, Richard, will have should he be returned."

19. The Adjudicator went on to say that in connection he had considered the case of Katrinak v Secretary of State, but he did not accept that the circumstances of that case were relevant to the Appellant's position.
20. The Adjudicator continued by asking himself two questions:

" ... firstly, whether the Appellant will have a well-founded fear of persecution should he now be returned to his country, and secondly, whether the knowledge of the brother's prominent position in FONUS, and as a refugee acting for the party outside DRC, will have any effect on the attitude of the authorities in the DRC."

21. He answered those questions in paragraphs 41 and 42:

"Dealing with the first question, I have noted the relaxation and marginal liberalisation of political opposition activities under President Joseph Kabila. Notwithstanding the findings of Erik Kennes, I prefer to rely upon the CIPU and US State Department objective and independent evidence that matters have improved within the country. It does concern me that returned failed asylum seekers are facing interrogation and possible detention, but I do not believe that the Appellant's status is sufficiently of interest to the authorities to merit him special attention. I have noted that on each of his alleged periods of detention, he had either been released after a very short period, or claims to have been released as a result of ill-health or the intervention of a third party. This does not suggest that he is of major interest to the authorities, and whilst, if returned, he may face questioning, I do not accept that this is sufficient for him to have a real risk of persecution."

22. The Adjudicator then went on to consider the second question. He accepted that the Claimant's brother, Richard, was known to the authorities, but said this:

"But in the past, the brother's political profile did not, with one exception, adversely affect the Appellant whilst in DRC. This one occasion was shortly after the brother's flight, when the authorities did bring the Appellant in for questioning. But the very fact that they released him so quickly testifies to the fact that the existence of the brother should not adversely affect him."

23. Having dealt with various other matters, the Adjudicator concluded that the Claimant had no reason to fear persecution if he was returned to the DRC.
24. The grounds of appeal placed before the Immigration Appeal Tribunal criticised the Adjudicator in the following respects: First of all, it was said that he had given no reasons for not preferring the report of Mr Kennes. The grounds set out the occasions on which the Tribunal itself had accepted Mr Kennes as an expert on the situation in the DRC. The grounds also challenged the way in which the Adjudicator had dealt with the second and the fourth detentions, saying that it was not implausible that the Claimant should have been released on the basis that he was seriously ill and required medical treatment, and so far as the fourth detention was concerned, that there was nothing inherently implausible about the Claimant's release having been arranged by a family friend.
25. So far as the newspaper report is concerned, ground 7 pointed out the error in the date of the newspaper, that it was dated 26th August and not 22nd, and contended that this was significant, since it was dated eight days after the Appellant escaped from detention.
26. A further contention was that the Adjudicator had misread the report because he stated that:

"The report 'says that the police and security services had been searching for him during this time.' Nowhere in the report does it say that. It actually says the 'police forces and security agents twice visited his place at Matonge, searching for him.' The adjudicator surmises that if the appellant were in detention the police would not be searching for him. Clearly, in the eight days between his escape and the newspaper report the police were (could have been) searching for him. The search does not refer to the whole period of detention. This lends credibility to the appellant's assertion of detention and escape, contrary to the adjudicator's findings, which are based on a flawed reading of the report."

27. There was a further contention that the Adjudicator had misdirected himself on Katrinak and placed unjustified weight on apparent changes in the regime under President Joseph Kabila in contradiction to Mr Kennes' report.
28. The Tribunal responded to those grounds of appeal by saying:

"In the view of the Tribunal the Adjudicator was entitled to prefer to rely upon the CIPU and US State Department reports, rather than the report of Mr Kennes. The fact that Mr Kennes' evidence has been regarded with favour in past Tribunal determinations does not mean that his views are automatically to be preferred to others, and the Adjudicator was entitled to take account of the preponderance of the evidence before him as he found it to be, indicating an improvement in the situation in the Democratic Republic of Congo. The Adjudicator was entitled to find that the claimant had only experienced problems on one occasion in the past as a consequence of his brother's high political profile. He was also entitled to find lacking in credibility the claim that the claimant's release and fourth alleged detention came about as a consequence of a person who was apparently a complete stranger taking the risk of arranging the release of two prisoners from a cell of twenty persons. Although the grounds of appeal identify certain matters, for example at paragraph 7 of the grounds, indicating aspects of the Adjudicator's credibility findings that are flawed, the Tribunal considers that overall the credibility findings can be sustained and were arrived at as a consequence of a proper consideration of the objective evidence."

29. In granting permission to apply for judicial review Pitchford J observed:

"The penultimate sentence of the IAT's reasons for decision in my view discloses an arguable case for review. The IAT appears to have accepted that the Adjudicator's credibility findings, including but not limited to paragraph 7 of the grounds, were or may have been flawed. The reasons do not identify those credibility findings which were sustainable and in IAT's view justified the refusal of leave."

30. Before me, Mr Al-Rashid said that there were four areas of challenge to the Tribunal's decision: Firstly, the manner in which it had treated Dr Kennes' report, secondly, its assessment of credibility, thirdly the newspaper report, and fourthly, the effect of the Katrinak decision, given the Claimant's brother's high political profile.
31. Dealing with those issues in turn, there can be no doubt from the passages in the Adjudicator's determination which I have read out, that the Adjudicator did take Mr Kennes' report into account. He mentioned it on a number of occasions, against the background that it was being argued on behalf of the Secretary of State by Miss Mepstead that the position in the DRC had shown some signs of improvement. It had been argued on behalf of the Claimant by Mr Al-Rashid by reference to Mr Kennes' report that there had been no real change in policy. The Adjudicator was well aware that that was the issue; he refers to it during the course of his summary of the submissions, and in paragraphs 39 and 41 of his determination.
32. Notwithstanding the fact that Mr Kennes' expertise has been accepted on number of occasions by the Tribunal in other cases, the Tribunal in this case was perfectly entitled to take the view that the Adjudicator was entitled to prefer the reports of the CIPU and the US State Department. It is significant that the cases referred to in the grounds of appeal to the Tribunal were cases in which Mr Kennes had given evidence, or was available to give evidence, in support of his report, and the reports in question had been prepared for those particular appellants. That was not so in the present case. Not merely was Mr Kennes not called, his report did not relate specifically to this particular Appellant. The purpose of producing the report was to provide background or contextual evidence as to circumstances in the DRC. The Adjudicator appreciated that that was the purpose for which report was presented, but decided to prefer other reports dealing with background circumstances in the DRC. He was perfectly entitled to do that.
33. In essence, the complaint boils down to this: that the Adjudicator did not give reasons as to why he did not prefer Mr Kennes' report. It is important to bear in mind that whilst the Adjudicator is required to give reasons for his determination, he is not required to give reasons for reasons. There may be circumstances in which a more detailed analysis of the contents of a report would be justified, for example, if rival experts had been called to give evidence to speak to their reports, or if the issue in contention was a very detailed one. That was not the case here. The purpose of producing the report was simply to deal with circumstances generally in the DRC and whether there had been any liberalisation under President Joseph Kabila, or whether, in essence, policies remained the same. The reports were in conflict on that issue. The Adjudicator was perfectly entitled to say that he preferred the CIPU and US State Department reports. He did not have to give any more extensive reasoning in the circumstances.
34. Turning to the Adjudicator's assessment of credibility, it has to be borne in mind that the Adjudicator heard oral evidence. He did not reject all of the Claimant's evidence. He made it plain which parts he accepted and which parts he did not. So far as the two detentions are concerned, whilst Mr Al-Rashid submitted before me that there was nothing inherently implausible in the Claimant's accounts of the reasons why he had been released from those two detentions, it is not enough for him to be able to say that the Adjudicator might have been able to reach a different conclusion. He has to persuade me that the Adjudicator could not reasonably have reached the conclusions that he did; in short, that the Adjudicator's conclusions on credibility were perverse. He cannot surmount that hurdle.
35. The question as to whether the Claimant's accounts of the second and the fourth detentions were plausible was squarely raised with the Claimant in cross-examination, and was addressed by both parties in submissions. In essence, the Adjudicator preferred the Respondent's submissions. Having heard the Claimant give oral evidence, he was entitled to adopt that course.
36. So far as the newspaper report is concerned, while it is true that the Adjudicator perpetuated the factual error that appears to have been made by the Home Office's representative, the substance of the point made by Miss Mepstead remained the same. The article had referred to the Appellant having been missing for weeks. Her point was that the article was dated 22nd August and the Appellant alleged his escape took place on 18th. That point is not significantly altered by substituting the date of 26th August for 22nd August, a gap of eight days, rather than four days.
37. The further point raised is the Adjudicator's observation that the article had said that the police and the security services had been searching for him during this time. It was contended in the grounds before the Immigration Appeal Tribunal that this was a mistranslation of the article. All that it had said was that police and security agents had twice visited the Claimant's address, searching for him, and therefore they were searching for him after he had escaped from custody. It is not in the least clear from the article when the police were said to have been searching for the Claimant, but that is not the sole reason why the Adjudicator decided that he would only place low weight on the credibility of the newspaper report. He was concerned that there had been an arrest of seven people at the meeting on 4th August when the Claimant was arrested, in what was apparently a public place, and considered that such an event would not have gone unnoticed. Therefore he was concerned that it was not mentioned in the newspaper report.
38. One has to bear in mind that the Adjudicator heard the evidence about the newspaper report, he heard the Claimant questioned about it, he heard submissions made about it. It was for him to decide what weight to place upon the newspaper report. Upon analysis, the principal criticism made in the grounds before the Tribunal, that the report was dated 26th August rather than 22nd August, was of no practical consequence. Insofar as the article said that the Claimant had been missing for some weeks, it matters not whether there was an interval of eight days or four days between the Claimant's escape and the date of the newspaper report, assuming, of course, that the article had been written on the same day that it was published.
39. I turn, lastly, to the Katrinak decision. The Adjudicator said that he did not accept that the circumstances were relevant to the Claimant's case. In so concluding, he was plainly correct. Katrinak was concerned with a husband and wife who were Roma. Both had suffered physical and verbal abuse. It was argued on behalf of the Secretary of State, and I very much paraphrase, that what had happened to the wife was not relevant for the purpose of assessing the husband's claim to asylum.
40. Schiemann LJ, with whom Tuckey LJ agreed, made the common sense point that it is possible to persecute one member of a family by what you do to other members of the immediate family. Thus, if a wife was going to be persecuted, that might also, indirectly, be persecution of her husband and vice versa. That is a very far cry from the facts in the present case. There is no suggestion that the Claimant's brother, Richard, will return to the DRC from Norway. That leaves the question whether the Claimant's association with his brother, Richard, would place him at risk. That is precisely the question that the Adjudicator addressed in paragraph 42 of his determination. In short, the Katrinak decision is not relevant for the purposes of this case.
41. I should mention in relation to the reasons given by Pitchford J for granting that permission, that having considered the matter in greater detail than he was able to do on the papers, and with the assistance of the Secretary of State's detailed grounds and skeleton argument, it is plain that the error in the date of the newspaper report made no difference to the substance of the arguments. The IAT's decision has to be read as a whole. It is not writing an examination paper on immigration law. Its relatively brief reasons should not be subjected to minute scrutiny. It was entitled to conclude that, overall, the credibility findings of the Adjudicator could be sustained, and to refuse permission to appeal. For these reasons, this application for judicial review must be dismissed.
42. MISS ANDERSON: My Lord, the Claimant is Legally Aided, as I understand it, so I would ask for the usual costs order.
43. MR AL-RASHID: My Lord, I have no objection. I do not think I can oppose that, but I would ask for a detailed assessment order for publicly funded costs.
44. MR JUSTICE SULLIVAN: Yes, you can certainly have that. Thank you both very much.