UKIAT 00439
APPEAL No. HX/23022/01 (STARRED)
Date of hearing: 20/12/2001
Date Determination notified: 19/02/2002
|SECRETARY OF STATE FOR THE HOME DEPARTMENT||RESPONDENT|
i. Ex parte Shen (see ante) heard in May 2000 and
ii. Ex parte Mukhtar Shala Mohammed (see ante), heard in July 2000, to which we have already referred, together with
iii. A, B, C, and D v Secretary of State for the Home Department (HX/61156/96), heard in July 1999.
iv. Fodjo v Secretary of State for the Home Department (C-2000-220), heard in September 2000.
v. Thaukumar Vijeyaratnam v Secretary of State for the Home Department (HX/76028/97), heard in February 2000 and
vi. Sait Findik, Hatim Findik v Secretary of State for the Home Department (TH/26021/92), heard in April 1998.
vii. Makozo (20033) heard in December 1998.
i. Ex parte Nasim Quyyum Khan (CO/107/1999), heard in July 2000 and
ii. Ex parte Jose Vincente Davila-Puga (C/2000/3119), heard in May 2001.
"It is our view that the burden of proof is on the Secretary of State to show that the blacklists are not authentic, rather than on the Appellant to prove (on the reasonable likelihood test) that they are authentic."
"We have to say that these documents are not free from doubt, but in our view the Secretary of State does need to show exactly why he considers they are not genuine. We think it right to give the benefit of the doubt that we accept exists surrounding these documents in favour of the first Appellant."
"It has long been a practice, and we think it is now settled as law, that if the Home Office specifically challenge a document as being forged the burden lies on them to prove it to be so."
"Standard of proof issues have plagued status determination in the area and asylum, and we do not feel it is either necessary or advisable to construct another standard of proof for these questions. We would rather deal with the matter by saying, as was said in Findik and Makozo, that the burden is on the Secretary of State and insofar as the decision maker has reasonable doubts as to the authenticity of the document, he should exercise those doubts in favour of the Appellant. To put it another way, the Secretary of State would simply not have come up to proof".
"20. Mr. Kadri submitted that, as a matter of law, since the Secretary of State was contending that these documents were forgeries, the burden of proving this fell on the Secretary of State. Mr. Ward, for whose helpful submissions on behalf of the Secretary of State I am grateful, does not take issue with that. There are now three decisions of the Immigration Appeal Tribunal which support that proposition, which is plainly right as a matter of general principle. Perhaps the most authoritative one is A, B, C, and D promulgated on 16th July 1999. That, in turn, referred to earlier decisions which made the same point."
"6. Miss Richards for the Respondent pointed out, in my judgment correctly, that these cases could not provided a good ground of challenge unless Miss Baruah could submit that a particular rule of evidence applied in asylum cases in connection with the validity of documents which did not apply in all other cases. In my judgment, again correctly, she submitted:
1. That the passages from the cases relied upon did not support such a general principle; and
2. If they did, there was no foundation in law for special rules to apply.
7. In Makozo the Tribunal, so far as it referred to clear, settled law, followed the principle that the burden of an issue of forgery lies upon the Home Office. In stating, "they must produce some evidence to show why", the Tribunal was not laying down that only if evidence were produced by the Home Office would a Special Adjudicator be entitled to conclude that a document is forged. The requirement is that there must be some evidence, whatever its source, and a source is the document itself."
"In that context, Mr. Gill was particularly critical of the rejection of the documents produced on behalf of the applicant. He submitted, relying on dicta in A, B, C, and D V Secretary of State for the Home Department, a decision of the Immigration Appeal Tribunal notified on July 16 1999, that if documents are to be rejected as bogus the onus was on the Secretary of State to prove them to be so. In this case the special Adjudicator had taken on himself the task of assessing the authenticity of the documents and had done so without giving the applicant or his representatives an opportunity to comment on the matters he relied on.
I cannot accept that the authorities cited (or those to which the Tribunal in A, B, C, and D and Mr. Gill referred) justify a general principle on the burden of proof of the breadth submitted by Mr. Gill. There can be no doubt the burden of proof on the right to asylum itself lies upon an applicant. If he chooses to produce documents which are relied upon in support of that right, they may range from documents which are original, apparently authentic, and from recognisable government or official sources, to those which are poor photo copies, raise obvious questions of authenticity and purport to emanate from sources which would make official verification of them difficult if not impossible. Moreover, the circumstances in which the documents are produced may make inquiries into them on behalf of the Secretary of State impossible without adjournment of the proceedings. In my judgment the matter is not sensibly addressed in terms of burden of proof in isolation from the material under consideration. The documents relied upon in this case fall very much at the doubtful and unverifiable end of the range and they were only produced after two adjournments and the long time after the events to which they purport to relate." He went on to say, in connection with the documents before him, "the documents are of a doubtful nature and set against the alleged grant of bail and the passport application there was nothing irrational in the special Adjudicator's conclusion, [viz. That they added nothing to the applicant's case]."
"28. What Mr. Fripp also says is that if one looks at the documentation in this case, it was very powerful. There were far more relevant documents than one normally finds in an asylum application; they were ostensibly strongly supporting the applicant's case and were, on the face of it, cogent and authentic documents. Very broadly, they fell into three categories: the documentation which was evidencing complaints made to the police and the judges; the documentation from certain doctors evidencing the fact that the applicant and his wife had sustained in some cases quite serious injuries and evidence that the applicant was wanted by the police.
29. Some of this documentation, as Mr. Underwood for the Respondent pointed out, is self-serving in the sense that the complaints to the police and the judiciary are of course, documents which the applicant has produced. Some of them do not fall into that category, namely, in particular, the documentation relating to the injuries sustained by the applicant and his wife.
30. Mr. Fricke went so far as to submit that where there is apparently objective evidence of that kind, then really it is not open to the Adjudicator to go behind it in asylum cases. With respect, that cannot be right. There are various ways in which documents may be obtained and may be presented to the authorities which are not genuine. Either they may be forgeries or it may be that individuals have been persuaded to produce these documents to represent something which is other than true.
31. In this case it is plain that the Adjudicator was not persuaded that these documents were sufficient to demonstrate the credibility of the account given by the applicant. It must be said that when interviewed on the first occasion the applicant had told the immigration officer that he was not a member of the FIE and he had produced the certificate - which he had formerly produced for the government itself - to persuade the immigration officer that he was not a member of the FIE, and had no links with it.
32. So, unfortunately, he had been willing on a previous occasion to rely upon a document which he subsequently accepted had been fraudulently obtained, albeit for the understandable reasons of wanting to preserve his job, and he had sought to rely upon that as part of his claim before the immigration officer.
33. It is true that the Adjudicator does not form a view about these documents, in the sense that he has not said which he considers to be authentic, or why he does not give these documents the weight Mr. Fripp says they deserve. But it seems to me that it is very difficult for him to do that; he will not know whether, for example, the medical documents are forgeries, or whether they are misrepresenting the facts, or whether there were injuries but they were not sustained for the reasons given by the applicant. What he was clearly satisfied about was that looking at the evidence in the round (and he does say on two occasions that he has done that) he was not persuaded by the credibility of the applicant's case. It seems to me impossible for him to form a concluded view about individual documents or how they were obtained. But he plainly was not satisfied, looking at all these matters, that they were sufficient to lead him to conclude that the evidence of the applicant was substantially credible."
"In my judgment this reasoning is correct. All these cases have to be considered in the light of their individual circumstances. This is not a case, as sometimes happens, where the documents are essentially self-proving or are positively demonstrated to be authentic by reference to material, including expert evidence, that is independent of the Appellant himself. It is a case where the Special Adjudicator entertained substantial objective reasons, which he explained at length, for doubting the truthfulness of the Appellant's account. In those circumstances the Special Adjudicator cannot in my judgment be said to have fallen into error by compartmentalising the evidence or failing to look at issues of credibility in the round. The short truth of the matter is that the special Adjudicator here was simply not prepared to accept that the Appellant was to be believed in the light of the whole case and notwithstanding the contents of the documents relied on. Having regard to the factual history as it was recounted by the judge below, in my judgment this is wholly unsurprising."
"If in any proceedings before the appellate authority a party asserts any fact of a kind that, if the assertion were made to the Secretary of State or any officer for the purposes of any statutory provisions or any immigration rules, he would by virtue of those provisions or rules be for him to satisfy the Secretary of State or officer of the truth thereof, it shall lie on that party to prove that the assertion is true."
1. In asylum and human rights cases it is for an individual claimant to show that a document on which he seeks to rely can be relied on.
2. The decision maker should consider whether a document is one on which reliance should properly be placed after looking at all the evidence in the round.
3. Only very rarely will there be the need to make an allegation of forgery, or evidence strong enough to support it. The allegation should not be made without such evidence. Failure to establish the allegation on the balance of probabilities to the higher civil standard does not show that a document is reliable. The decision maker still needs to apply principles 1 and 2.
P. R. Moulden