Jersey Unreported Judgments

Judicial Review.

[2019]JRC206

Royal Court

(Samedi)

21 October 2019

Before     :

T. J. Le Cocq, Esq., Bailiff, and Jurats Olsen and Austin-Vautier.

 

 

Advocate R. D. J. Holden for the Applicant.

Advocate S. A. Meiklejohn for the Respondent.

judgment

the bailiff:

1.        On 7^th February, 2019, the Deputy Bailiff gave leave to A ("the Applicant") to make an application for judicial review of the decision of the Minister for Home Affairs ("the Minister") refusing the Applicant's claim for asylum.  On 2^nd July, 2019, we sat to hear that application. 

Approach to judicial review in asylum cases

2.        The approach to an application for Judicial Review of an asylum decision was considered in the case of X v The Minister for Home Affairs [2019] JRC 132 in which the court, drawing on the approach set out with regard to deportation in the case of J v His Excellency The Lieutenant Governor of Jersey [2018] JRC 072A, in quoting from that judgment, said this:-

"4. It is for these reasons that the traditional Wednesbury standard of unreasonableness - was the decision of the decision maker so unreasonable that no reasonable decision maker could reach it? - is inappropriate where the decision under review engaged a fundamental right or important interest.  Where that is the position, the decision does indeed engage the most anxious scrutiny of the courts - see Bugday Cay v Secretary of State for the Home Department [1987] AC 514 at 531 per Lord Bridge.  As Sir Thomas Bingham MR (as he then was) put it in R v Ministry of Defence ex parte Smith [1996] 1 All ER 257, the more substantial the interference with human rights, the more the court will require by way of justification before it is satisfied that the decision is reasonable.  In R v Lord Saville of Newdigate ex parte A [2000] 1 WLR 1855 at paragraph 37, the Court of Appeal said that:-

"It is not open to the decision maker to risk interfering with fundamental rights in the absence of compelling justification."

5. There are nonetheless constraints upon the Court's powers to intervene.  First of all, the Court is not a fact finding body in this exercise.  It takes a given set of facts and applies the relevant legal tests to them.  Of course, one such legal test may involve consideration of a submission that the decision taker has proceeded on the wrong facts, but it seems to us that it would be very rare and highly exceptional that any evidence other than affidavit evidence would be considered by the Court on such applications.  Secondly, it is not correct to say that there is no deference to the decision taker.  A higher degree of scrutiny on human rights grounds is still not a full merits review.  What is needed is that the Court examine what reasons have been given, whether they comply with the fundamental rights of the applicant and in particular whether the lawfulness of what has been done meets the structured proportionality test that the Courts now apply, recognising that the decision taker has a discretionary area of judgment."

3.        And then at paragraph 11 of its judgment the Court in X said:-

"11.    In our judgment this articulates the correct test and approach in considering an application for judicial review not only of a decision on deportation but also of the refusal of asylum claims when it is clear, as may more often than not be the case, the Applicant's human rights are engaged.  The test is not, accordingly, strictly one of Wednesbury unreasonableness but also whether the interference with the Applicant's human rights is lawful and justifiable and proportionate in the circumstances of the case.  It is, of course, still short of a full merits review but it is wider in ambit than the traditional Wednesbury approach to judicial review." 

The Law applicable in this case

4.        Part 11 of the Jersey Immigration Rules ("the Rules") governs applications for asylum. 

5.        Rule 334 of the Rules, so far as is relevant, states:-

"An asylum applicant will be granted refugee status in Jersey if the Minister is satisfied that;

           (i) The applicant is in Jersey or has arrived at a port of entry in Jersey;

           (ii) The applicant is a refugee, that is to say, a person who falls within Article 1A of the Geneva Convention and does not fall within the scope of Article 1D, 1E or or 1F of the Geneva Convention;

...

           (v) Refusing his application would result in the applicant being required to go (whether immediately or after the time limited by an existing leave to enter or remain) in breach of the Geneva Convention to a country in which his life or freedom would be threatened on account of his race, religion, nationality, political opinion or membership of a particular social group."

6.        In considering whether the return of the Applicant might result in a breach of the Geneva Convention the decision maker, in this case the Minister, must consider whether or not the Applicant has a "well-founded fear" of persecution. 

7.        Article 1(A)(ii) of the Geneva Convention provides, as part of the definition of the term "refugee", as follows:-

"... owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of 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." 

8.        Accordingly, for the Applicant in this case to demonstrate a refugee status, he must demonstrate a well-founded fear of persecution for any of the reasons set out in Article 1(A)(ii) above. 

9.        Although the Geneva Convention has not, save by reference in the Rules, been incorporated into Jersey domestic law as such, there would be a legitimate expectation that the Minister will act in accordance with it.  In the case of R -v- Uxbridge Magistrates Court Ex Parte Adimi [2001] QB667 the court said:-

"Second, the applicants contend that the United Kingdom's ratification of the Convention itself created a legitimate expectation that its provisions would be followed.  In this connection they cite the Court of Appeal's decision in R v Secretary of State for the Home Department Ex Parte [1998] INLR 570, 583, where Lord Woolf said:-

"I will accept that the entering into a treaty by the Secretary of State will give rise to a legitimate expectation on which the public in general are entitled to rely.  Subject to any indication to the contrary, it could be a representation that the Secretary of State would act in accordance with any obligations which he accepted under the treaty.  This legitimate expectation could give rise to a right of relief, as well as additional obligations of fairness, if the Secretary of State, without reason, acted inconsistently with the obligations which this country had undertaken." 

I would accept this argument." 

10.      Rule 328 of the Rules provides:-

"All asylum applications will be determined by the Minister in accordance with the Geneva Convention on recommendations made by the Minister.  Every asylum application made by a person at a port or airport in Jersey, other than one refused under paragraph 345 will be referred by the immigration officer for determination in accordance with these Rules."  

11.      And, Rule 336 of the Rules provides:-

"An application which does not meet the criteria set out at paragraph 334 will be refused.  Where an application for asylum is refused the reasons in fact and law shall be stated in the decision and information provided in writing on how to challenge the decision."

12.      The application itself must receive "anxious scrutiny".  In MN (Somalia) v Home Secretary [2014] UK SC 30 the court said of that phrase that:-

"It has by usage required special significance as underlying the very special human context in which such cases are brought, and the need for decisions to show by their reasoning that every factor which might tell in favour of the applicant has been properly taken into account." [our emphasis] 

13.      To illustrate the approach a "well-founded fear of persecution" in R v Sivakumaran [1988] AC 958, the court at page 994 of the judgment said this:-

"In my opinion the requirement that an applicant's fear of persecution should be well-founded means that there has to be demonstrated a reasonable degree of likelihood that he will be persecuted for a Convention reason if returned to his own country.  In Reg. v Governor of Pentonville Prison, Ex Parte Fernandez [1971] 1 WLR 987, this House had to construe section 4(1)(c) of the Fugitive Offenders Act 1967, which requires that a person shall not be returned under the Act if it appears

"that he might, if returned, be prejudiced at his trial or punished, detained or restricted in his personal liberty by reason of his race, religion, nationality or political opinions." 

Lord Diplock said, at p. 994:

"My Lords, bearing in mind the relative gravity of the consequences of the court's expectation being falsified either in one way or in the other, I do not think that the test of the applicability of paragraph (c) is that the court must be satisfied that it is more likely than not that the fugitive will be detained or restricted if he is returned.  A lesser degree of likelihood is, in my view, sufficient; and I would not quarrel with the way in which the test was stated by the magistrate or with the alternative way in which it was expressed by the Divisional Court.  'A reasonable chance,' 'substantial grounds for thinking,' 'a serious possibility' - I see no significant difference between these various ways of describing the degree of likelihood of the detention or restriction of the fugitive on his return which justifies the court in giving effect to the provisions of section 4(1)(c)." 

I consider that this passage appropriately expresses the degree of likelihood to be satisfied in order that a fear of persecution may be well-founded."

The background

14.      It is not necessary to set out in detail the background to the application before us.  It was summarised in the judgment of the Deputy Bailiff giving leave to apply for judicial review.  The judgment was handed down in anonymised form (see A -v- Minister for Home Affairs [2019] JRC 017) in which the Court by way of background said this:-

"6.  The Applicant is from Bangladesh.  He had previously left that country and had entered the United Kingdom on a student visa which expired in June 2012.  On his case, he fled Bangladesh and feared to return and remained in the British Isles and ultimately was arrested in Jersey in August 2017.  He first claimed asylum on 20^th October 2017. 

7.  His asylum application was based on his having been a member of the Bangladesh National Party ("BNP") which was and is in opposition to the Awami League ... who are currently in power in Bangladesh.

8.  The Applicant alleges that Awami has victimised those who oppose it including members of the BNP and that the security services in Bangladesh are complicit in such victimisation which extends to the murder of political opponents.

9.  The Applicant states that he had attended two demonstrations organised by the BNP in 2007 and 2008 at which there had been violence and following which he, together with others, had been falsely charged with offences.

10.  Following the Applicant's asylum application, he was further interviewed and a report was prepared for the Assistant Minister of Home Affairs dated 11^th January 2018 ("the Report").  The application for asylum was rejected.

11.  The Applicant obtained leave to judicially review that rejection but in the event that judicial review did not proceed because the Assistant Minister had revoked her rejection in the light of and following the decision in J above.

12.  The Applicant was thereafter provided with a copy of the Report, which he had not previously seen, and an addendum Report dated 30th May 2018 ("the Addendum"). He made submissions on those documents through his legal representatives by letter dated 13^th August 2018 ("the Letter").

13.  The Applicant's application for asylum together with the Report, the Addendum and the Letter were provided to the Minister on 17^th August.

14.  On 22^nd August, the Minister took the Decision.

15.  Two days later, on 24^th August 2018, the Minister indicated his initial reasons to the Customs and Immigration Service which suggested there were inconsistencies in the Applicant's evidence and certain parts of the Applicant's case had not been accepted.

16.  Subsequently it was indicated that the Minister would draw together various points from the Report and Addendum that he had considered and provide a rationale for the Decision and, five days thereafter, the Minister provided informal reasons on 29^th August 2018.

17.  Subsequently, on 31^st   August 2018 the Applicant was notified of the Decision and on 7^th September 2018 final formal reasons were provided for that refusal."

15.      The Applicant's basis for his claim for asylum is that if he is returned to Bangladesh his life and liberty will be in danger and he will otherwise face acts of persecution by agents of the state or by non-state agents acting with the aid or approval of the state.  This of course raises human rights considerations. 

16.      The essential grounds relating to this application for judicial review are, in effect:-  

(i)        There has been a retrospective rationalisation by the Minister for the decision; 

(ii)       The reasons given by the Minister are inadequate and/or unintelligible;  

(iii)      The decision was irrational in that it failed to determine and/or drew incorrect and illogical conclusions from the material provided to the Minister;  

(iv)      The Minister wrongly took into account irrelevant considerations - specifically the screening interview that the Applicant underwent;  

(v)       The Minister failed to take into account guidance and country of origin information regarding enforced disappearances and internal bias;  

(vi)      The Minister failed to take into account a relevant consideration, namely the requirements of Rule 334 of the Rules. 

The Applicant's further assertions

17.      The Applicant first claimed asylum in Jersey in October 2017.  In addition to the background information set out above, the application for asylum was based on a number of assertions set out by the Applicant in an affidavit provided by him together with supporting documentation.  The original asylum application comprised some 370 pages.  The factual claims set out in that documentation, and specifically the Applicant's affidavit of 20^th October, 2017, describe beatings and torture as commonplace for those in custody who were members of the BNP including instances where BNP members were told by the police to run away and then they were shot and killed for doing so.  The Applicant claims to have been attacked by 4 or 5 members of the Awami League and had been hospitalised as a result. 

18.      The Applicant further claimed he had been charged by the police and he was released as a result of a bribe paid by his father.  He fled Bangladesh on the threat of arrest.  In the United Kingdom he maintained his involvement with the BNP and met leaders there.  He confirms that he would not willingly go back to Bangladesh unless the BNP were in power. 

19.      We do not refer to all of the matters raised in his affidavit by the Applicant.  The picture that he paints is one of potential threat and violence perpetrated against members of the BNP by members of the ruling Awami League and organs of the state. 

20.      As part of his application for asylum, the Applicant provided reports from Amnesty International and Human Rights watch.  In its report of 2016/17 Amnesty International states:-

"Torture and other ill treatment in custody was widespread; however, complaints were rarely investigated.  The 2013 Torture and Custodial Death (Prevention) Act was poorly enforced due to lack of political will and awareness amongst law enforcement agencies.  Human rights groups accused several security force branches - including police and the rapid action battalion - of torture and other ill treatment.  Torture was cried out to extract "confessions", for extortion or to punish political opponents of the government."  

21.      Other reports include reports of enforced disappearances and secret detentions.  These, it is suggested, are supported by the Awami League. 

22.      In addition, the Applicant provided a translation apparently of a hospital record which reflects that he, then apparently aged 29, was admitted to hospital on 1^st July, 2007, and discharged the following day with sharp cutting injuries and fractures. 

23.      The Applicant also provided a translation of the proceedings of the Magistrates Court in Bangladesh which appears to show that the Applicant appeared as a defendant.  The Applicant maintains that he committed no criminal offence. 

The Minister's Decision

24.      We have seen a note prepared by the Jersey Customs and Immigration Service that reflects the decision making process and a summary of the reasons.  It provides, in summary, as follows:-

(i)        On 17^th August, 2018, the Minister was presented with the documentation comprising the asylum claim and various reports on it;  

(ii)       On 22^nd August, 2018, the Minister confirmed that he had read all of the submissions and responded by email concluding that the claim should be dismissed;  

(iii)      On 24^th August, 2018, the note records a meeting between the Minister and the Director and Assistant Director of the Jersey Customs and Immigration Service ("JCIS") to discuss the rationale behind the decision.  The Minister noted that there were inconsistencies in the evidence provided.  He noted also that bribes had been paid to the police for documentation from the Bangladesh authorities.  The Applicant had been working illegally in the UK for some 5 years and it was not accepted he was unaware that he should have claimed asylum at the earliest opportunity. 

(iv)      It was subsequently decided that the Minister would draw together points from the reports to provide the rationale behind his decision. 

(v)       On 29^th August, the Minister provided a summary of the points that supported his decision to refuse the application in 11 bullet points as follows:

·              May have been a member of the BNP, but not an officer or a member with a defined role or particular responsibility. 

·              Did not re-join while in the UK legally until 2012.  

·              Attended a political demonstration in 2007, where he allegedly received some injuries.  Was assisted by police to hospital.  Not the act of a persecutor. 

·              He enrolled into college and lived openly without fear of arrest. 

·              This experience was not enough to deter him from attending another demonstration a year later even though he claims there was an arrest warrant out on him. 

·              All paperwork provided is inconsistent and may or may not relate to the applicant and is unlikely to be genuine. 

·              His injury certificate stated he was hospitalised for one night after the 2007 demonstration.  He says he was hospitalised for 2/3 days after the 2008 demonstration. 

·              The alleged arrest warrant gives his age as 29, when he was about 17 at the time.  If warrant is genuine, it is unlikely to be referring to the Applicant. 

·              He obtained visa and passport from the Bangladesh authorities without any difficulty which might have been expected if there was an arrest warrant in force. 

·              Claims he did not understand the concept of asylum when he entered Dubai and the UK.  Unlikely if, as he claims, he was a political activist. 

·              It is inconceivable that if he felt he needed protection he did not seek this from the UK authorities while he was in that country for 9 years. 

25.      Thereafter, the Applicant's legal advisers having been notified of the decision on 31^st August, 2018 (with reasons to follow) the final form reasons were provided in a letter of 7^th September, 2018 ("the Decision Letter") to the Applicant's legal adviser.  It comprises three sides and is signed by the Assistant Director of Immigration and Nationality.  Approximately a side and a quarter deals with the reasons for the Minister's decision and makes reference by paragraph number to various paragraphs in the asylum claim, the report and the other documentation in doing so without setting out those references in full.  Leaving out the reference to the specific paragraphs, the reasons given by the Minister for his decision appear from the Decision Letter to be as follows:-

26.      Whilst the Minister considered the case in its entirety, he made particular note of the following areas;

(i)        The Minister accepts that at one point the Applicant may have been a member of the BNP does not accept he was an officer or a member with any defined role or particular responsibility;

(ii)       The Minister notes that whilst in the UK legally between 2009 and 2012 he did not re-join the BNP;

(iii)      The Minister accepts that during 2007 the Applicant may have attended a political demonstration where he allegedly received some injuries.  However, the Applicant was assisted by the police on this occasion and this is not considered to be an act of a persecutor;

(iv)      The Minister considers that after initially going into hiding following the 2007 demonstration, the Applicant lived a normal life for a year.  Further, that the experience of that event and initial alleged charge did not deter the Applicant from attending another demonstration in 2008.  This does not support a fear of persecution. 

(v)       The Minister made reference to a number of points relating to the inconsistencies in the supporting document.  Specifically he noted the injury certificate referring to a one night stay in 2007, the Applicant initially stating in his screening this occurred in 2008 and in his witness statement to it occurring in 2007 and staying in hospital for 2/3 days;

(vi)      The Minister questioned the genuineness of the arrest warrant showing the Applicant's age as 29, when he was in fact 17 when the arrest warrant was issued and 27 when the documents were submitted to JCIS.  Further, that if the arrest warrant is genuine that it is unlikely to be referring to the Applicant. 

(vii)     The Minister did not expect that the Applicant would have been able to acquire his passport from the Bangladeshi authorities if he had an outstanding arrest warrant in place for him;

(viii)    The Minister considered it unlikely that the Applicant did not understand the concept of asylum if he claims to have been a political activist;

(ix)      Further it is inconceivable that the Applicant felt he needed protection and he did not seek this from the UK authorities for the nine year period he was living there. 

27.      The Minister summarised the position as follows:-

"The Minister has carefully considered A's claim in the round and not purely on any one aspect, such as the credibility of the supporting documents. 

The Minister has determined that A's claim for asylum and humanitarian protection cannot reasonably be taken to be based on a well-founded fear of persecution and that there would be a sufficiency of protection in his own country should he require it.

Further that A's claim for asylum does not meet the requirements of paragraphs 334 of the Jersey Immigration Rules.  Accordingly the Minister of Home Affairs has decided not to grant refugee status to A.

This letter is to formally give notice that the application by A for asylum and humanitarian protection has been refused by the Minister for Home Affairs."

The Arguments

28.      The first ground for Judicial Review on which the Applicant seeks review is put on the basis that it is only the Minister who may lawfully take the decision.  The decision cannot be taken by officers of the JCIS.  Furthermore, so it is argued, his reasons, under Rule 336, must be given at the time he takes the decision.  It is not permissible for the Minister to take a decision and either put together his reasons for doing so on a later occasion or leave it for others to do so. 

29.      It is accepted by the Applicant that the Minister can be assisted at an administrative level but it is for the Minister himself to give the reasons in fact and law for his decision and not delegate that to others.  His reasons may not be supplemented by reasons provided by officers. 

30.      The Applicant puts before us the case of R v Wandsworth LBC ex parte Dodia (1998) 30 HLR 562 in which, having accepted that a lawyer could assist a decision maker in preparing a formal decision letter, the court said:-

"There is a greater stress, perhaps, on the need to give reasons than was formerly the case.  That does add to the difficulties of those who have to write decision letters.  Of course a decision letter should not be scrutinised as though it were a judgment of a judge being looked at by the Court of Appeal, though one could be forgiven for thinking that sometimes that is the approach of those who seek to criticise decision letters.  Nonetheless, there is a certain knowledge required as to what matters should be dealt with in decision letters.  Provided the distinction is clearly observed between the decision-makers role which is to decide where the truth lies, to decide on the relevant facts and to provide the reasons for those decisions and any assistance given in formulating a decision letter in a way which deals with clarity with the decision and the reasons for it, I can see no objection to a decision maker receiving advice in the drafting of a decision letter, provided, I stress, the division of labours is observed....."

31.      In the case of Nash v Chelsea College for Art and Design [2001] EWHC Admin 538 the court held:-

"34.    .....

(i)  Where there is a statutory duty to give reasons as part of the notification of the decision, so that (as Law J put it in Northamptonshire County Council ex p D) "the adequacy of the reasons is itself made a condition of the legality of the decision", only in exceptional circumstances if at all will the Court accept subsequent evidence of the reasons.

(ii)  In other cases, the Court will be cautious about accepting late reasons.  The relevant considerations include the following, which to a significant degree overlap:

           (a) Whether the new reasons are consistent with the original reasons.

           (b) Whether it is clear that the new reasons are indeed the original reasons of the whole committee.

           (c) Whether there is a real risk that the later reasons have been composed subsequently in order to support the tribunal's decision, or are a retrospective justification of the original decision.  This consideration is really an aspect of (b).

           (d) The delay before the later reasons were put forward.

           (e) The circumstances in which the later reasons were put forward.  In particular, reasons put forward after the commencement of proceedings must be treated especially carefully.  Conversely, reasons put forward during correspondence in which the parties are seeking to elucidate the decision should be approached more tolerantly.

35.      To these I add two further considerations.  The first is based on general principles of administrative law.  The degree of scrutiny and caution to be applied by the Court to subsequent reasons should depend on the subject matter of the administrative decision in question.  Where important human rights are concerned, as in asylum cases, anxious scrutiny is required; where the subject matter is less important, the Court may be less demanding, and readier to accept subsequent reasons."

32.      It is argued by the Applicant that it is difficult to know what reasons operated on the mind of the Minister at the time that he took the decision.  The Minister must have in his mind the reasons why he makes the decision at the time that he makes it.  The sequence of decision making and communication of reasons, so the Applicant contends, expose the Minister to the inference and reveal the very clear risk that the final formal reasons in the Decision Letter were an attempt by officers of the Customs and Immigration Service and the Minister to rationalise the decision after it was made to fortify it against a challenge.  It is argued that the input of JCIS blurred the boundary between its role as adviser to the Minister and the provider of information and the Minister's role in making the decision and formulating his reasons for doing so.  This amounts, so it is argued, to a procedural irregularity or indeed to an unlawful delegation of a Minister's powers to officers of the JCIS.  It is accordingly submitted that the reasons of the 7^th September, 2018, set out in the Decision Letter are not or cannot reliably be taken to be the actual reasons for the Minister's decision. 

33.      The second ground on which the Applicant seeks review is the allegation that the reasons given in the Decision Letter are inadequate and unintelligible.  As to the standard of reasons required, De Smith on Judicial Review at paragraphs 7-105 et seq says this:-

"7-105.  It remains difficult to state precisely the standard of reasoning the court will demand.  Much depends upon the particular circumstances and the statutory context in which the duty to give reasons arises.   Where the issues dealt with by the tribunal or administrative actor are 'extremely important', the duty to give reasons may be equated with the general duty in courts to give their reasons, rather than the 'less exacting standard applied to ordinary administrative decision-making'.  It is clear that the reasons given must be intelligible and must adequately meet the substance of the arguments advanced.  It will not suffice to merely recite a general formula or restate a statutorily-prescribed conclusion.  It is also preferable if the reasons demonstrate that a systematic analysis has been undertaken by the decision-maker.  However, the courts have not attempted to define a uniform standard or threshold which the reasons must satisfy, and on occasion, courts have expressed concern that decision-makers should be granted 'a certain latitude in how they express themselves'.  The reasons must generally state the decision-maker's material findings of fact (and, if the facts were disputed at the hearing, their evidential support), and meet the substance of the principal arguments that the decision-maker was required to consider.  If a decision is made on the basis of the evidence of witnesses or experts, reasons for preferring one witness or expert over another should generally be explained.  In short, the reasons must show that the decision-maker successfully came to grips with the main contentions advanced by the parties, and must tell the parties in broad terms why they lost it, or as the case may be, won.  Provided the reasons satisfy these core criteria, they need not be lengthy.  Judicial review may be inappropriate where the dispute relates to issues about the precise drafting of a decision.  Courts should also not scrutinise reasons with the analytical rigour employed on statutes or trust instruments, and ought to forgive obvious mistakes that were unlikely to have misled anyone.

7-106.  Some general guidance on the standard of reasons required may also be derived from a consideration of the purposes served by a duty to give reasons.  Thus, reasons should be sufficiently detailed as to make quite clear to the parties - and especially the losing party - why the decision-maker decided as it did, and to avoid the impression that the decision was based upon extraneous considerations, rather than the matters raised at the hearing.  Reasons must be sufficient to reveal whether the tribunal made any error of law.  Reasons must also enable the court to which an appeal lies to discharge its appellate function, and when this is limited to questions of law, it will only be necessary to explain the exercise of discretion and to set out the evidence for the findings of fact in enough detail to disclose that the decision-maker has not acted unreasonably.  The reasons should refer to the main issues in the dispute, but need not necessarily deal with every material consideration.  Brevity is an administrative virtue, and elliptical reasons may be perfectly comprehensible when considered against the background of the arguments at the hearing.  Some decisions (such as the refusal of planning permission by an inspector) should be accompanied by reasons that are sufficiently precise to permit the individual to make the modifications necessary to secure a favourable decision in the future, or (where a Secretary of States disagrees with an inspector) to enable an objector to know what, if any, impact the planning considerations taken into account in a grant of planning permission may have in relation to the determination of future applications.  Where a decision-maker is disagreeing with a recommendation, such as with a planning inspector's report, there will be a duty to explain why the inspector's view is rejected.

7-107.  The standard of reasons required in certain specific contexts has been considered.  For example, a mental health review tribunal should explain why one witness is preferred to another; the reasons should sufficiently inform the patient and the hospital of the findings of the tribunal; and the court should take into account the fact that the tribunal has a legally qualified chairman and that reasons do not have to be given immediately.  As for immigration adjudicators, it has been held that there is no duty on the adjudicator to deal with every argument raised by the advocate in the case, but the critical matters must be explained sufficiently clearly for the 'thought processes' of the adjudicator on 'material findings' to be understood.  While a judge conducting a fact-finding hearing is entitled to explain his thought processes and reasoning in whatever way he deems appropriate, in a case where there is satisfactory proof on some matters but suspicion and speculation on others, it would be artificial and potentially misleading for the judge to supress all reference to the latter while giving appropriate prominence to the former."

34.      And, at paragraph 7-110 the learned author says:-

"7-110.  When reasons are required, either by statute or by the growing common law requirements, or where they are provided, even though not strictly required, those reasons must be both 'adequate and intelligible'.  They must therefore both rationally relate to the evidence in the case, and be comprehensible in themselves.  The reasons for a decision must not be 'self contradictory'.  The reasons will not be construed in the same way as courts would construe a statute, but a decision may be struck down where an applicant can show substantial prejudice resulting from a failure on the part of the decision-maker to demonstrate how an issue of law had been resolved or a disputed issue of fact decided, or by 'demonstrating some other lack of reasoning which raised substantial doubts over the decision-making process', or by indicating 'that the tribunal had never properly considered the matter.... and that the proper thought processes have not been gone through."

35.      In the instant case reasons are required expressly and in our judgment they should, in accordance with the quotation above, refer to the main issues but need not deal necessarily with every consideration.  The 'thought processes' of the decision-maker on material findings should be set out so that they can be understood and should cover any material assertions of the Applicant in this case which the Minister did not accept.  The reasons must relate to the evidence in the case and be comprehensible. 

36.      This approach is further articulated in South Bucks District Council and Another v Porter (2004) 1 WLR 1953 in which the court said:-

"36.    The reasons for a decision must be intelligible and they must be adequate.  They must enable the reader to understand why the matter was decided as it was and what conclusions were reached on the 'principal important controversial issues', disclosing how any issue of law or fact was resolved.  Reasons can be briefly stated, the degree of particularity required depending entirely on the nature of the issues falling for decision.  The reasoning must not give rise to a substantial doubt as to whether the decision-maker erred in law, for example by misunderstanding some relevant policy or some other important matter or by failing to reach a rational decision on relevant grounds.  But such adverse inference will not readily be drawn.  The reasons need refer only to the main issues in the dispute, not to every material consideration.  They should enable disappointed developers to assess their prospects of obtaining some alternative development permission, or, as the case may be, their unsuccessful opponents to understand how the policy or approach underlying the grant of permission may impact upon future such applications.  Decision letters must be read in a straightforward manner, recognising that they are addressed to parties well aware of the issues involved and the arguments advanced.  A reasons challenge will only succeed if the party aggrieved can satisfy the court that he has genuinely been substantially prejudiced by the failure to provide an adequately reasoned decision."

37.      South Bucks was a planning case.  An example in the immigration area is provided by R (Bahrami) v the Immigration Appeal Tribunal [2003] EWHC 1453 where the court said:-

"What is essential is not that an adjudicator should deal with every point at length, but that the determination should be sufficiently reasoned to enable a claimant, his advisors, and any appellate or reviewing body, to see why the claimant lost on a particular issue.  If that determination satisfies that test it will usually be the case that the more schematic approach, formulated by Schiemann J in Amin does not need to be considered.  In considering the determination of the adjudicator, it is appropriate for the court to read it as a whole, analytically but without pedantry, in a common sense way.  At the same time, the court must resist the temptation to engage in any conscious or subconscious rewriting of the adjudicator's determination."

38.      The Applicant in this case suggests that the brevity of the Minister's reasons when compared to the accompanying documentation was enough of itself to raise concerns.  We do not agree with that assertion.  The length of a decision is no necessary indication of its quality and a simple comparison between it and the amount of documentation that was considered in arriving at the decision is not to our view persuasive.  Any decision may be based on one simple fact or legal principle if it is sufficiently important and determinative of the issue overall.  The case law and texts referred to above certainly anticipate brevity in appropriate cases. 

39.      The reasons are more specifically criticised in that they identify, so it is asserted, a handful of factual points as reasons for the decision.  They are said to stand in isolation without being tied to the material on which they are based and without an explanation as to whether there was, as a result, a 'well-founded fear of persecution'. 

40.      Specifically the Applicant asserts that the reasons did not address the relevant test, namely whether the Applicant had a 'well-founded fear of persecution' (although it was, of course, referred to at the end of the Decision Letter) and therefore did not explain whether the Minister considered whether the Applicant held such a fear or whether such a fear might be justified.  Furthermore it is asserted that the reasons do not explain how the findings of fact or the evidence cited in the reasons can lead the Minister to reach the conclusion that he did.  It is not clear whether the Minister considered, accepted, rejected or understood:-

(i)        that people in Bangladesh of certain political opinions were persecuted;

(ii)       those people affiliated or allying with the BNP are persecuted in Bangladesh;

(iii)      whether the Applicant held or holds political opinions contrary to those held by Awami and/or align with the BNP;

(iv)      whether the Applicant would be known to supporters of Awami or their affiliates;

(v)       the political climate in Bangladesh at the time when the Applicant was resident as well as the current climate and what will be faced were he to return home;

(vi)      the country of origin evidence included in the report;

(vii)     that it is not only high profile individuals who might be persecuted;

(viii)    the persecutors could be organs of the State but could also be political activists;

(ix)      the evidence that corruption and bribery in Bangladesh were commonplace;

(x)       that the Applicant had to pay bribes or bribes had been paid on his behalf;

(xi)      that western standards of perception of good administration do not apply to the Bangladeshi authorities;

(xii)     the Applicant's claim that he was injured in a political demonstration by supporters of the Awami League;

(xiii)    that he was held by the police and was charged with others for offences in and about the political demonstrations in 2007;

(xiv)    the Applicant secured his release from the police by the payment of a bribe by his father;

(xv)     the Applicant lived in hiding and otherwise paid bribes to ensure his personal safety;

(xvi)    the Applicant attended further political demonstrations in 2008 which resulted in a violent clash and he is now due to face trial for what he contends to be false allegations;

(xvii)   people charged with such offences by reason of political affiliation may not be able to obtain a fair hearing;

(xviii)  evidence submitted by a Bangladeshi lawyer about the status of cases concerning the 2007 and 2008 demonstrations.

41.      Further it is alleged the Minister failed to explain how he resolved, against contrary evidence, that there would be 'a sufficiency of protection in [the Applicant's] own country should [the Applicant] require it". 

42.      The third and fourth grounds of appeal deal with irrationality.  To a great extent the criticisms of the failure to reach correct or logical conclusions as alleged by the Applicant are not to our mind separate grounds but are part of the alleged failure of the Minister to give adequate reasons for each of the decisions of fact. 

43.      It is submitted by the Applicant that there is no causal link between the Minister's assertion that the Applicant was not an officer or member with a defined role within the BNP with the belief that he would not as a result therefore be persecuted. 

44.      It is further submitted that the Minister took into account an irrelevant consideration namely the screening interview, as it was made without the benefit of an interpreter, and that the Minister did not take into account the country of origin information available to him. 

45.      The Applicant also asserts that the Minister failed to take into account a relevant consideration which was a requirement set out above of Rule 336 of the Rules.  Criticism is raised as to whether the Minister addressed the Geneva Convention requirements but in any event it is asserted that his explanation only appeared in the Decision Letter and not initially. 

The Respondent's Evidence and Arguments

46.      In response to the Applicant's claims it is submitted on behalf of the Minister that really they amount to two criticisms neither of which relate to the substance of the decision itself.  They are first, whether the Minister's written reasons were committed to writing/communicated to the Applicant at the right times and secondly as to the format and content of the written reasons. 

47.      The Minister's case is supported by the affidavit of Luke Goddard of JCIS who gave information containing the process followed by the Minister.  At paragraph 11 of his affidavit he confirmed what documentation had been forwarded by him to the Minister:-

(i)        the Applicant's formal claim for asylum and supporting documentation;

(ii)       the asylum report as prepared by JCIS;

(iii)      the addendum to the asylum report;

(iv)      the Applicant's response to the asylum report;

(v)       further clarification within the body of an email.

48.      He goes on to say at paragraph 12 of his affidavit that:-

"The Respondent gave careful consideration to the Applicant's representations as well as to the asylum report and addendum and all of the other documents presented to him."

49.      He then goes on to say within the same paragraph:-

"Within one hour of the respondent making the decision I advised the respondent he should formally set out his reasons for making the decision and I offered to assist him with the drafting of this."

50.      It is said on behalf of the Minister that the concern expressed by the Applicant that he would on account of his politics face persecution if returned to Bangladesh was undermined.  The reasons given for this are:-

(a)       Law enforcement authorities in Bangladesh have assisted the Applicant before and took him to hospital to receive medical treatment. 

(b)       He has had other dealings with the police and authorities where it is said that his father paid bribes to have him released and not re-arrested and for the issuing of a passport so he would leave the country. 

(c)       He returned to living a normal life after taking part in the demonstration in 2007 and enrolled in college and then attended another demonstration.  Although he did not appear to have any fears in taking part in the second demonstration he is now contending, so it is alleged, some eleven years later he would be at risk of persecution. 

(d)       He did not claim asylum whilst in the United Kingdom where he was located first legally and then illegally and nor did he do so whilst he was in Dubai.  If he had had a genuine fear of persecution then it might be assumed that he would have made the application for asylum at the earliest opportunity including when he was in the United Kingdom.  Reference was made to Rule 339N of the Rules which deals with credibility of an asylum applicant.  At paragraph (7) it is stated:-

"In determining whether the general credibility of the person has been established, account shall be taken, as damaging the claimant's credibility, of any behaviour to which this paragraph 339N applies."

At paragraph (4) states:-

"This paragraph 339N also applies to failure by the claimant to take advantage of a reasonable opportunity to make an asylum claim or human rights claim while in a safe country."

And, at paragraph (6):-

"This paragraph 339N also applies to failure by the claimant to make an asylum claim or human rights claim before being arrested under an immigration provision, unless:-

(i) he had no reasonable opportunity to make the claim before the arrest, or;

(ii) the claim relies wholly on matters arising after the arrest."

(e)       The Applicant did not re-join the BNP whilst in the UK.  His explanation as to this being his fear of being caught whilst there illegally would not have applied when he was in the UK legally for a number of years. 

(f)        There were discrepancies between the case he put forward and the documents he adduced in support and the documents put forward in support of the contention that he is still being pursued by the Bangladeshi authorities have had their authenticity impugned. 

(g)       He is not a prominent and/or recognisable figure who might be a specific target. 

51.      These appear to us to be essentially the reasons set out in the Decision Letter and the initial note of reasons. 

52.      The Minister further argues that it is not the case that providing more comprehensive written reasoning amounted to a retrospective rationalisation of the decision.  There is no evidence to suggest the Minister was not clear when making his decision what his reasons were. 

53.      It is further argued that Rule 336 of Rules is not prescriptive as to when a written decision needs to be communicated.  We do not agree as Rule 336 as it is apparent on its surface requires that "the reasons in fact and law shall be stated in the decision and information provided in writing as to how to challenge the decision".

54.      The decision itself was initially communicated informally and the provision of reasons may, insofar as the documentation exists to reflect how they were provided, be seen as something of an iterative process.  That being said, whilst the provision of reasons might be seen as iterative it does not seem to us that the reasons essentially differed from the notes taken following a meeting with the Minister and those set out in the Decision Letter. 

55.      As to the other grounds it is argued on behalf of the Minister that he in fact accepted that the Applicant held certain political opinions and that persons might be persecuted in Bangladesh for those opinions.  What the Minister did not accept is the extent of the Applicant's political activity and the role he had within the BNP.  It is argued that in determining whether a person is likely to be persecuted for their political opinions it is acceptable to consider to what extent their political opinions will be known and what their visibility as individuals with those opinions is.  The Minister was entitled to consider the Applicant's prominence because, so it is argued, the Applicant's original legal submissions has sought to use analogies with prominent political figures.  Moreover, it is reasonable to have regard to the intervening period of self-imposed exile by the Applicant as likely to have lessened his visibility and made it increasingly unlikely he would either be known or targeted for his political views. 

56.      It is further argued that the Minister was entitled to have regard to the screening interview as it dealt with simply factual matters that were not complex.  The Minister was entitled therefore to take into account the Applicant's inconsistency.  As to the remaining grounds, which amount to allegations that the Minister failed to take into account relevant considerations, it is argued on the part of the Minister that there is simply no evidence to indicate the Minister failed to consider these matters.  The fact that he did not go through the matters line by line in his Decision Letter does not mean that he has not considered them.  There is nothing in the suggestion that any internal bias had not been displaced as the Minister had expressly accepted that bribes may have been paid and accepted in Bangladesh.  On the part relating to evidence of the Minister's deliberations we merely observe that it is for the decision itself to demonstrate what the Minister took into account. 

57.      The asylum report which was before the Minister makes express reference to country of origin information including the Department of State of the United States of America Bangladesh 216 Human Rights Report, Human Rights Watch Report and others.  It also makes express reference to extrajudicial killings, arbitrary or unlawful detentions, forced disappearances and the killing of members of marginalised groups.  JCIS concluded that whereas victims of such activity usually appear to have an identifiable anti-government profile such as leaders of opposition political parties:-

"This service has concluded that individuals may be persecuted by the State for their political beliefs."

58.      In paragraph 8 of the asylum report detailed consideration was given to the claims of the Applicant.  Reference is made to his claimed status within the BNP, the demonstrations he took part in in 2007 including the documentation which shows discrepancies in relation to his age and duration of detention in hospital.  Reference is also made to his arrest documentation and again inconsistencies apparently relating to his age.  After a period in hiding the Applicant had indicated that he went back to college and, as a result of bribes provided by his father, was not re-arrested. 

59.      The asylum report refers to the documentation relating to his 2008 participation in a demonstration, to the fact that there is a substantial age discrepancy and references to other inconsistencies which, so it is suggested in the report, call into question the credibility of the documents.  Apparently after that demonstration the Applicant went into hiding but then re-enrolled in college although he did not attend.  It demonstrates that in 2009 the Applicant applied for a Bangladeshi passport and a student visa and therefore would have interacted with the Bangladeshi authorities all without being arrested or otherwise interfered with.  This is, so it is claimed, a result of his father's bribes.  As to why he did not claim asylum in the UK, the Applicant indicated he did not understand what asylum is and has not previously claimed for fear of being unsuccessful. 

60.      The asylum report calls into account the credibility of the documentation provided and paragraphs 8.19 and 8.20 say as follows:-

"8.19   The general creditability of the initial documents submitted by A in support of his claims are called into question for the following reasons:-

·         In his screening interview in August 2017 A stated that neither he nor his family would be able to produce any documents;

·         The ability for a distant family member to acquire personal medical and legal documents without written consent of A;

·         The identically replicated error in A's age in the medical document and the Court/Police documents, being 29, relating to events from July 2007, when he would have been 17 and November 2008, when he would have been 19;

·         The translation of one of the 2007 police officers statement which makes reference to 'the offence of killing', which does not appear in the original document;

·         The newspaper articles do not appear to be copied from a newspaper page as there are no other articles alongside them;

·         The 2007 newspaper article is dated Monday 2^nd July, 2007 and refers to the events of the 1^st July occurring "yesterday Monday", 1^st July was a Sunday;

·         The two 2008 newspaper articles are dated the same day as the events themselves, yet they both refer to the events occurring 'yesterday'; and

·         The letter from the lawyer makes reference to the 2 cases, one being in the stage of a trial and the second starting very soon, but no evidence to support this is provided.

8.20    The second submission of documents from Viberts includes 2 'information slips' in relation to the 2 cases from 2007 and 2008.  The translations show that 3 questions have been asked:

·         Whether or not A is a complainant of the case;

·         Whether or not A is [sic] absconded; and

·         Whether or not the case is under trial.

The answer is given as 'yes' to all the questions from both slips.  It can only be assumed that the answers in the affirmative indicate that these cases are under trial.  It is noted that the 4^th column headed 'Signature of the Officer in Charge' is unsigned in both documents.  A's legal representative states this signature appears at the bottom of the page as 'it is assumed....it is too long to fit in the column provided'.  This is not accepted.  Firstly the signatures are actually short enough to fit in the columns, it is only the addition of the date which makes them appear long.  Secondly, the signatures are written above the reference to the 'Administrative Officer' for each document.  Thirdly, even in the opinion of Mr A's legal advice the credibility of these documents relies on assumption.  It is therefore deemed that the reliability of these documents is in question."

61.      At 8.27 of the asylum report it is indicated that "inconsistencies have been identified in every area that has been presented to this service which severely affect A's credibility as a person with a well-founded fear of persecution". 

62.      We have not, of course, referred to all of the contents of the asylum report but the above seems to us to suffice to indicate the tenor of it and the fact that to our mind it was a thorough report which sought to assist the Minister in analysing difficulties with the documentation. 

Conclusion

63.      Whereas Rule 336 of the Rules requires that the reasons be communicated at the time of the decision, in our judgment the formal decision was communicated in the Decision Letter and at that time the reasons were communicated. 

64.      That the Decision Letter was written after the Minister had made the decision is hardly to be taken as surprising as there would inevitably have been a period of consideration and coordination to prepare an appropriate draft.  In preparing a draft there is no reason why the Minister could not have been assisted by officers of JCIS (or indeed by legal drafting advice), and there was no reason why officers should not have taken a note of the reasons given by the Minister to assist in the formulation of the Decision Letter. 

65.      As we have said, the notes appear to us to be consistent with the Decision Letter.

66.      This is not a case in which the reasons have obviously been provided after the event, in the face of a challenge, to rationalise something upon further reflection.  The likelihood of a challenge was apparent from the start given that the Applicant had already sought a judicial review of an earlier decision made by the then Assistant Minister. 

67.      Naturally should the documents contain reasons that are materially inconsistent with those set out in the Decision Letter, then that would be it seems to us good reason for challenge on the grounds of supplementation of reasons not originally conceived of by the decision maker or ex post facto rationalisation.  That is not the situation here.  We see no reason not to accept that the Decision Letter contained what was intended to be the substantive and final statement of the reasons that operated on the Minister's mind at the point, a few days earlier, that he read the material and took the decision.  Accordingly we see no substantial merit in these grounds.  

68.      However, whilst we would not have quashed the decision on those grounds alone, it does seem to us that it would be better for a single definitive statement of the decision and reasons to have been prepared and communicated.  

69.      In the case of X v Minister for Home Affairs the Royal Court raised a concern with regard to the initial interview of the applicant in that case.  In this case it would in our view have been preferable if the applicant had had the services of an interpreter.  We think it is important, as well, that the purposes of any initial screening interview are explained in very clear terms.  The fact is that the contents of that interview, whether they are simply fact finding or otherwise, may be relied upon by the Minister as to factual information or to identify inconsistencies.  They are therefore important to any applicant for asylum and that importance should be underlined.  This seems to us to be a basic matter of fairness.

70.      We do not, however, in the light of the questions and answers asked in that interview think that there has been any unfairness in this case on those grounds and we make the observations above simply for the purposes of improving the procedure at the earlier stage of interview. 

71.      With regard to the quality of the Minister's reasons, we infer from the decision that what the Minister did not expressly reject, he accepted.  We think that that is probably the natural interpretation to place upon the Decision Letter.  However, in our judgment, the Applicant should not need to infer or cross refer between documents to seek to divine the Minister's reasons on material points. 

72.      The reasons do not have to address every matter raised by the Applicant but he must address those which are of importance in the mind of the decision taker and are important in the Applicant's case.  It is clear that the Minister had material concerns about the accuracy of the documentation which supported the application, and concerns as to the Applicant's credibility arising out of his failure to apply for asylum at the earliest opportunity, and his assertion that he did not really understand what asylum was. 

73.      However, in our view an asylum decision is one of great moment and here engages the Applicant's human rights.  If he is right and is returned to Bangladesh he faces the possibility of detention or worse for his political beliefs.  He is entitled in a case such as this, which turns not on legal points but on an assessment of the truth of the Applicant's assertions that the decision communicates on its surface (without cross references to substantial documents) what material assertions the Minister accepts, those he rejects and in the latter case, why he rejects them.  The reasons should show that any factor that might tell in favour of the applicant has been properly taken into account.  

74.      In our judgment, whilst the Decision Letter goes some way to explaining the basis of some material findings made by the Minister, it does not adequately set out in full the Minister's findings on all material allegations and reasoning.  For example, and without being exhaustive, those points made in paragraph 39(iv), (vi), (vii), (viii), (ix) and (xii) should have been clearly addressed. 

75.      Given the importance of this decision, we do not think the reasons are adequate and the Applicant would not be left sufficiently clear as to the full basis of the rejection by the Minister of his asylum application. 

76.      Accordingly, we quash the decision and remit it to the Minister (or the Assistant Minister) for re-consideration. 

77.      We do not suggest in any way that the decision was wrong or that the same decision, with sufficient reasons, may not be made again.  That is to be considered afresh.  We merely decide that the reasons given were not sufficient and on that important, but non-substantive basis, allow the Applicant's application for Judicial Review. 

Authorities

X v The Minister for Home Affairs [2019] JRC 132. 

J v His Excellency the Lieutenant Governor of Jersey [2018] JRC 072A. 

Jersey Immigration Rules. 

R -v- Uxbridge Magistrates Court Ex Parte Adimi [2001] QB 667. 

MN (Somalia) v Home Secretary [2014] UK SC 30. 

R v Sivakumaran [1988] AC 958. 

A -v- Minister for Home Affairs [2019] JRC 017. 

R v Wandsworth LBC ex parte Dodia (1998) 30 HLR 562. 

Nash v Chelsea College for Art and Design [2001] EWHC Admin 538. 

De Smith on Judicial Review. 

South Bucks District Council and Another v Porter [2004] 1 WLR 1953. 

R (Bahrami) v the Immigration Appeal Tribunal [2003] EWHC 1453. 

The Asylum Report