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
		6 November 2006

1. MR JUSTICE STANLEY BURNTON: This is an application by Mr Fortune Dube, a citizen of Zimbabwe, for judicial review of a decision of the Immigration Appeal Tribunal notified on 30th March 2005, allowing the Secretary of State's appeal from an adjudicator's finding that Mr Dube was entitled to asylum as a result of a justified fear of persecution and worse if he were returned to Zimbabwe. The decision of the adjudicator, Mr Mark Davies, was dated 8th September 2004.
2. The application has been argued cogently and efficiently on both sides and I congratulate counsel; and the papers have been well presented, apart from the idiosyncratic numbering of the claimant's bundle which did not interfere with the efficiency of the hearing in any way.
3. Mr Dube contended when he claimed asylum that he was a member of the MDC, the Movement of Democratic Change, in Zimbabwe, and that he and his wife had been severely ill-treated as a result. He escaped from Zimbabwe to South Africa and, in November 2003, he flew to Manchester with a false South African passport. At Manchester he said that he had come to visit. He was disbelieved, told he would be returned and he was duly returned. It is common ground that on that occasion he did not claim asylum. According to his evidence, when he returned to South Africa he contacted the gentleman who had arranged his flight in November, who obtained another false passport for Mr Dube on which Mr Dube and his son then flew, this time to London, Heathrow, where he did claim asylum.
4. The decision letter of the Home Office is dated 21st June 2004. It is a relatively long letter, not surprisingly, but it took issue with the credibility of the claimant to be a member of the MDC and its supporter. So far as his membership of the MDC is concerned, he claimed to be a low-level member. He did not claim to be one of the senior members or even anything other than a low-level activist and member. The adjudicator upheld his claim. He found that Mr Dube had been consistent in his account of what had happened to him and his wife, of what he feared on return and, as I said, accepted his credibility.
5. The Secretary of State appealed to the Immigration Appeal Tribunal. The Immigration Appeal Tribunal allowed the appeal on three grounds. It is necessary only for me to address two of them. The first relates to the flight to Manchester, to which I have already referred. The second concerns the question of internal relocation, what formerly has been called internal flight. The tribunal held that it was incumbent on the adjudicator to address, first, the incident of the flight to Manchester since it reflected on the credibility of the claimant; and secondly, the question of internal relocation. Neither of those matters was addressed in the adjudicator's determination. The tribunal concluded, therefore, that it had been inadequately reasoned and not been possible to see on what basis the adjudicator had considered those matters or whether he had done so at all; and whether he had determined them and if so on what basis. They allowed the appeal and remitted the claim for asylum to be heard by a new adjudicator.
6. On behalf of the claimant Mr Bazini takes issue with both bases of the decision of the Asylum and Immigration Tribunal. So far as the first is concerned, he says first, that the issue was not in fact taken before the adjudicator: it was not raised either in cross-examination or in submission. Therefore, he submits, it was not for the adjudicator to address it in his adjudication, and his adjudication could not be said to contain an error of law on that basis. Even if the matter was raised, submits Mr Bazini, looking at the adjudicator's determination as a whole one can see a general acceptance of credibility which would have been unaffected by this issue. The matter was not so obvious that it had to be addressed. Indeed it was not referred to in the refusal letter and, on one view of the facts, in either cross-examination or submission to the adjudicator, therefore there was no reason for the adjudicator to be compelled to deal with it. In any event, it was not so important that it was essential to deal with it, having regard to the general acceptance of the consistency and credibility of the claimant. The tribunal on that issue proceeded either on the basis of an incorrect apprehension of the facts and therefore made an error of law or made a finding for which there was no evidence and on that basis also its decision falls to be set aside.
7. For the Secretary of State, Mr Sachdeva submits that the matter was raised, expressly, but it was of such importance that the adjudicator had to address it; and that the tribunal correctly considered it was a matter of such importance that the adjudicator was required to explain his findings if his determination was to stand.
8. Mr Sachdeva goes further and submits that the matter is so obvious and an inherent part of the claim for asylum and its credibility, that in any event the adjudicator was bound to deal with it. So far as the contention that the tribunal's decision falls to be quashed because the tribunal based itself on a misapprehension of the proceedings before the tribunal, Mr Sachdeva relies on the fact that the legal representative of the Immigration Advisory Service, Mr Allison, who appeared for the claimant before the tribunal, did not object to this issue being raised, notwithstanding the fact that it was quite clearly taken in the ground of appeal to the tribunal. The tribunal was therefore entitled to proceed on the basis that the matter was live before it as it had been before the adjudicator.
9. So far as the issue of internal relocation is concerned, it is clear that it was expressly raised before the adjudicator. The adjudicator's decision does not refer to it in any way. Mr Bazini submits that it was unnecessary for the adjudicator to do so, having regard to the fact that the submission that was made before the adjudicator on internal relocation was based on the assumption that the claimant's claim was only that not being a ZANU-PF supporter and not having a ZANU-PF membership card he had been subject to persecution; whereas in fact his claim, which was accepted by the adjudicator, was that the claimant was a member and supporter of the MDC itself, rather than simply someone who objected to supporting ZANU-PF. In those circumstances, it was unnecessary for the adjudicator to address the issue which had become irrelevant as a result of the finding of facts which controverted the basis of the submission.
10. For the Secretary of State, Mr Sachdeva submits that it was, in any event, necessary for the question of internal relocation to be addressed; it was incumbent on the claimant to show that if returned he would be recognised or identified elsewhere than in the region of his home in Zimbabwe and would be persecuted or otherwise ill-treated; that he could not reasonably be expected to relocate; that being part of his claim it had to be addressed. It was raised expressly, albeit so far as it was raised expressly on a basis which did not accord with the findings of fact of the adjudicator. But it was clear from the authority that was referred to by the adjudicator, namely the case of N, that even in cases where there is membership of the MDC the question of internal relocation may arise and should be addressed. Mr Bazini submits that in a case such as the present, where the persecution feared is that of the government itself, internal relocation is irrelevant since the government exercises power on a national basis which would mean that the claimant would be liable to ill-treatment wherever he went within Zimbabwe. It follows, submits Mr Bazini, that it was an error of law for the tribunal to have allowed the appeal on either of the bases which has been the subject of controversy before me.
11. I turn to consider the first issue, namely, whether the tribunal erred in law in allowing the appeal of the Home Secretary by reason of the lack of any reasoning in the adjudication relating to the first flight to this country. On one view the first question is whether the issue was in fact raised before the adjudicator. In my judgment, however, in cases where the challenge is to a decision of the tribunal, cases will be rare where the court will investigate what took place before the adjudicator. What is in issue is the regularity of the tribunal's decision. The decision of the tribunal is liable to be set aside if it was based on a material factual error; but a factual error in this context must be an error going to material fact "which could be established by objective and uncontentious evidence". (See the judgment of Brooke LJ in R (Iran) and Others v Secretary of State for the Home Department [2005] EWCA Civ 982 at 9.) In general, the court will not set aside the decision of a tribunal public authority which is alleged to be based on error of fact unless that fact can be uncontroversially established. In the present case, there is evidence both ways as to what occurred before the adjudicator. The adjudication itself is silent and suggests that the issue was not raised expressly. The contemporaneous notes which are in evidence and made by Natalie Tonge, who represented the claimant before the adjudicator, make no mention of the point in what appears to be a comprehensive note of the cross-examination and a summary of the submissions of the presenting officer. Against that, the presenting officer, Mr Wardle, now says that to the best of his recollection he did raise it, and he has presented the document prepared by him in advance of the hearing to set out the submissions he would propose to make, one of which reads:

"Came to UK in Dec 2003 but failed to claim asylum - planning journey since his arrival in SA."

If Mr Wardle was following that note, the matter would have been raised. It is sufficient for me to say that there is controversy as to whether or not it was raised.

12. So far as the tribunal is concerned, the point was raised expressly in the notice of appeal and no objection was made as could, and if the matter had not been raised should, have been before the tribunal as to their considering the point. It seems to me in those circumstances they were entitled to proceed on the basis that the matter was properly before them. In my judgment, there was no perversity in their dealing with the points in those circumstances. Even if the matter had not been raised before the adjudicator, as I say, it is not for me to find whether or not it was raised. I would, however, go a bit further. It does appear from the determination that the presenting officer relied upon the contents of the refusal letter. As I have already indicated, the refusal letter did not raise expressly any point that the visit to England in November 2003 was inconsistent with a genuine fear of persecution. But it did contain this passage:

"18. Your version of events after you were returned to South Africa at the end of 2003 also raises serious doubts. You claim that an return to Johannesburg, you spoke to Nkosi who was angry that you failed to claim asylum on arrival in the United Kingdom and that he then arranged for the issue of further fraudulent documents. Once again, it is not accepted that Nkosi would go to the trouble of arranging more documents for you, particularly as you had obviously failed to follow his original instructions."

13. The refusal letter then went on to note that when Mr Dube did return to the United Kingdom in April 2004 he came with his son, who was suffering from a chronic ear condition which pre-dated the flight, and it was suggested that he, Mr Dube, had come to this country for medical treatment rather than to escape persecution.
14. The flight to England in November 2003, his return to South Africa, his obtaining of a second false passport and flight ticket and the circumstances of his return to England in April 2004 were clearly significant aspects of the history of the claimant in relation to his claim for asylum. The facts that he had been here, gone back, and again persuaded Mr Nkosi to give him another false passport and air ticket to be used in exactly the same way as the first, were manifestly matters which went to the credibility of the claim in a very substantial way. In my judgment, the adjudicator, having regard to the terms of the refusal letter, was bound to deal one way or another with the episode and did not do so. I am far from saying that it was not open to the adjudicator to find that the episode did not in any way affect the credibility of the claim for persecution. The explanations put forward by Mr Dube may be genuine explanations which satisfy and should satisfy a tribunal, whatever the standard of proof that is required. But the episode was highly material and cried out for explanation. In my judgment, therefore, the tribunal was not only entitled, but right, to allow the appeal on that ground.
15. I turn to consider the question of internal relocation. Again in any judgment this was a matter which should have been addressed by the adjudicator. Admittedly the factual basis, as set out in the adjudication, did not correspond with the findings of the adjudicator. However, the case that was cited did relate to someone who was a low-level supporter of the MDC, as was this claimant. The fact, therefore, that he was a low-level member and activist was not inconsistent, so far as the authority of the tribunal is concerned, with internal relocation. Availability of internal relocation is a question of fact in every case. It having been raised, it should have been dealt with. If it was only raised in submission, the proper course for the adjudicator, if he considered that any unfairness would otherwise be caused, was to give the claimant on opportunity to deal with the matter in evidence to obtain an adjournment. But the matter could not simply be ignored. In my judgment, it is not sufficient to say that the persecution feared was government persecution since one of the issues that is raised in the authorities is whether even where a person is a member of the MDC, he will be identified as such if he moves within Zimbabwe.
16. It seems to me that the adjudicator's decision cannot be upheld on the basis that he made a comprehensive finding of the credibility of the claimant, given that one cannot ascertain from his determination whether he took into account at all the episode of the first flight to the UK, the return, and obtaining of a second passport and ticket and the return with his son who was ill. The tribunal itself made a significant error in assuming that the claimant's case was only that he was a non-supporter of the government party ZANU-PF, rather than a member of the MDC (see paragraphs 2 and 8). There are passages in the appeal decision which will suggest that that was the way the case was presented before the tribunal. But I find it difficult to see how the tribunal could have come to that conclusion, having regard to the witness statements of the claimant himself and indeed the contents of the adjudicator's decision. But given that on the authority of N there is a possibility of internal relocation even where a claimant is a low-level activist in MDC and a member of that party and political movement, it seems to me that that error was not a material error, and the decision of the tribunal on this issue should have been the same, had it correctly understood the basis of the claim for asylum.
17. In those circumstances the application for judicial review will be dismissed. I hasten to add that nothing in this judgment casts any doubt on, or indeed support for, the credibility of the claimant, which will be assessed afresh by a new Immigration Judge.
18. MR SACHDEVA: My Lord, I am instructed to make an application for costs not to be enforced without leave of the court. I understand the claimant is legally aided, so just on the basis, obviously, that costs follow the event. I do not think I have much to add to that.
19. MR BAZINI: My Lord, apart from requesting detailed assessment of our costs, we would also seek leave to appeal from this court, not in relation to the internal relocation issue particularly, but in relation to the issue raised in terms of the approach to the evidence in terms that match the issue. Your Lordship indicated that it was enough for the presenting officer to produce a statement which obviously indicated that his recollection was that he did raise these issues and, having referred to R (Iran), the adjudicator certainly does raise a controversy as to whether this issue is (inaudible) or not.
20. My Lord, we say this raises some important legal issue because what is a controversy in a particular case will have to be a question of judgment to some degree, and what we say, my Lord, is that the way that the matter has been put potentially opens up the situation whereby in any given case where there is a dispute, one side or the other side can produce a statement after the fact and say, "Well, this was our recollection which is not the same as anybody else", and that will automatically bar the court from saying, "Well, this is not a controversial issue". What we say is that in R (Iran) when they talk about the matter, the contention and so on, they are not talking in terms of this type of evidence, which really has absolutely no foundation other than someone's recollection from 15 months beforehand. So we say, firstly, it is suitable for the Court of Appeal to look at the type of evidence that can lead to whether or not an issue can be seen as controversial or not, which, to my knowledge has not been done in any case as far as I am aware.
21. My Lord, the second point relates to the finding that the tribunal, even assuming that this matter was not raised before the adjudicator, was entitled to intervene in relation to this issue because it was an issue which stood out of some importance in terms of credibility. What we say to that, again that is a matter that should be considered by the Court of Appeal, if only because the Court of Appeal need to give a judgment on whether or not a tribunal is allowed to intervene at any point because it finds particular issue that it thinks is important or someone else might think was important, but has not hitherto been raised and therefore finds there to be an error of law. There are countless issues in any asylum claim and --
22. MR JUSTICE STANLEY BURNTON: I see that, but the difficulty of leave to appeal is that there were other bases for my decision. So even if you were to succeed on those points the result would be the same.
23. MR BAZINI: My Lord, if we were to succeed on those points we would not succeed on the internal relocation point, but we would succeed on the credibility point. And that is of some importance to the claimant because then he would be able to have his case heard or remitted by the tribunal on the positive credibility findings, rather than having to prove those all other again.
24. MR JUSTICE STANLEY BURNTON: Of course we did not consider the matter, but I am bound to say that, having regard to the quality of the adjudicator's determination, I would be reluctant to remit the matter to the same adjudicator or --
25. MR BAZINI: It does not need to go back before the same adjudicator, my Lord. In fact because of this passage of time it would no doubt go back to the new AIT, which would, as it often does, have cases remitted back to itself either with the one panel or two or three panel, and they would consider the question of risk on return on the basis of the previous credibility findings as found. So it is, we say, still important to this claimant, and it would make a material difference to the future conduct of his case.
26. MR JUSTICE STANLEY BURNTON: Thank you very much. I do not propose to give permission to appeal for two reasons: first, as I said, it seems to me that the episode in question was raised in the refusal letter, albeit not in the same way as it was in the grounds of appeal; and secondly, because in any event it is accepted that the adjudicator's determination would have to be set aside this only goes to the question whether there would be a de novo hearing before a new adjudicator.
27. MR SACHDEVA: My Lord, the costs, I do not know whether you made a decision on that.
28. MR JUSTICE STANLEY BURNTON: Thank you for reminding me. You are entitled to your costs on that basis. I am sure you will never see them unless the claimant remains here and prospers, and even in that event you will probably never know. But unless Mr Bazini wants to say something, it seems to me you are entitled to that order.
29. MR BAZINI: My Lord indeed.