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Cite as: [2004] UKIAT 114, [2004] UKIAT 00114

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APPEAL No. IS (Fair hearing – natural justice) Belarus [2004] UKIAT 00114

IMMIGRATION APPEAL TRIBUNAL

Date of hearing: 5 April 2004

Date Determination notified: 25 May 2004

Before

Mr H J E Latter (Vice President)

Mr T S Culver

Between

IS	APPELLANT
and
Secretary of State for the Home Department	RESPONDENT

For the appellant: Mr G Lee, Counsel

For the respondent: Mr M Blundell, Home Office Presenting Officer

DETERMINATION AND REASONS

The appellant, a citizen of Belarus, appeals against the determination of an Adjudicator, Mr P J Wynne, who dismissed his appeal against the decision made on 5 April 2001 giving directions for his removal following the refusal of his claim for asylum.

The appellant arrived in the United Kingdom on 12 January 2000 and claimed asylum on 14 January 2000. He claimed that he had faced persecution from a neighbour who was in the police force due to a dispute over a plot of land and more generally with the authorities in Belarus because of his connections with the Belarus People's Front (BNF). He claimed that he had been detained on six occasions, the last resulting in the need for hospital treatment. The Secretary of State had doubts as to whether the appellant was a citizen of Belarus. He also doubted his account of events and for the reasons set out in the reasons for refusal letter dated 21 March his application was refused on both asylum and human rights grounds.

The appeal against this decision was listed before the Adjudicator on 27 February 2003. The appeal was adjourned part heard at 16.45 and resumed on 2 April 2003. In the interim period the appellant's solicitors filed a supplementary witness statement giving further details of an incident during the appellant's last detention in October 1999.

The Adjudicator summarised the appellant's case in paragraph 21 of his determination. The appellant had considerable difficulties from a neighbour who was a police officer arising from a dispute about land. This dispute did not lead to the appellant's arrest or detention or engender in him any fear of persecution. This arose because of his membership of the BNF. He first encountered trouble in April 1996 when he attended a large demonstration. When interviewed the appellant had said that he was detained whereas in his witness statement he said that he had managed to escape. The next incident was in October 1996 when the appellant attended a demonstration in Minsk. He asserted that he was detained for two days and beaten whilst interrogated sustaining a broken nose and a lowering of the left kidney. He believed that the police released him because he required medical treatment. He did go to a casualty department in the Central Hospital in Pinsk. The wound on his nose was stitched. He did not report the incident to any higher authority because he was aware that such complaints were not pursued.

The appellant attended a further demonstration on 25 March 1997. He was charged with instigating mass disorder. He was ill-treated whilst in detention. He appeared in court where he was found guilty and fined. He asserts that following this incident his wife was dismissed from her employment following a report from the police to her employer that the appellant was politically active. The appellant attended a few minor demonstrations between March 1997 and March 1998 but did not have any serious problems in that period.

He took part in a march in Vitebsk on 25 March 1998. He was detained for holding posters and banners in support of independence. He was detained for a few hours and fined. He did not allege that he was ill-treated on this occasion. On 17 October 1999 the appellant attended a freedom march in Minsk. He and several other demonstrators were arrested and taken to Minsk police station. The following day he was transferred to Pinsk police station and detained for two days. Whilst in detention he was beaten up and asked to cooperate with the police as a non-salaried worker gathering information on BNF activists and leaders.

On 20 October 1999 he claimed that three police officers took him from the police station towards a village. They went into the woods and forced him to dig a pit in which they said they intended to bury him. He was beaten up. He was later thrown into a car and driven back into town. He was then left by a street in the hospital. The hospital admitted him and he spent about a month there. Whilst in hospital the police kept contacting both him and his wife. He feared remaining in hospital and decided to flee. A priest, who was an acquaintance of the appellant, helped him to escape from the hospital. He spent some time in the priest's country house and then he was helped to leave the country.

In his witness statement of 4 February 2003 the appellant provided an explanation as to why he had not mentioned this incident prior to that witness statement. He said that he had mentioned it to his former representative but they seemed to have concentrated on the problem with his land and had omitted the latest and most important incident. At interview he was asked to answer questions put to him rather than mention anything else. This was the reason that the incident had not been mentioned.

In his supplementary witness statement of 6 March 2003 and in his oral evidence to the Adjudicator the appellant maintained that he had found the experience in October 1999 humiliating and that as the interpreter at his interview was a woman he found it difficult to express anything about what had happened to him in the woods on 20 October 1999.

The appellant repeated that the police had taken him into the woods. They told him that it was time to exorcise his political opinion. When he refused to dig a hole he was beaten up. The police used a shovel hitting him on the head and his back to force him to dig. It took a long time to dig the hole. At one time he stopped because he was tired. At that stage the policeman said he could be sent to prison under an article of the Criminal Code. They then said that if that happened other prisoners would rape him. The appellant started digging again. When it started raining the police went back to their car close to the place where he was digging. One of them came to him and told him to go on his knees to the car and threatened him with oral sex with one of the policeman. He was told that he would have to do that every time he reported to the police even if he agreed to cooperate. The appellant refused. Then two other policemen came from the car and beat him up again. They forced him to swallow a big green frog. They put it in his mouth and pushed his head into a swamp. The appellant did not remember much of what happened afterwards because he was semi-conscious.

The appellant was cross-examined about his evidence. The Adjudicator records that he got into difficulties about the dates of various things that allegedly happened following his detention on 17 October 1999. He said that he had spent a month in hospital following release by the police and this was between October and his escape from hospital on 17 or 18 December 1999. Later he agreed that he left hospital on 16 or 17 November 1999. He said that his house had been searched whilst he was in hospital but later said that it had been when he was not in hospital. He said that he had been kept in a cell from 18 October 1999 up to the evening of 20 November 1999. When it was put to him that he was supposed to have been in hospital from 21 October 1999 he changed his mind. He was asked about his evidence at interview when he said the police had kept him in custody until 23 October 1999 as compared with his oral evidence that he had been taken to the woods and ill-treated on 22 October 1999. He repeated that he had been released by the police on the evening of 22 October 1999 and kept in the woods overnight.

The appellant's account about his journey from Pinsk to St Petersburg was also considered at the hearing. The appellant had said that the priest had taken him in a motorcar from Pinsk to St Petersburg where the priest's brother had an abandoned summerhouse. The priest arranged for his journey to the United Kingdom by lorry. The appellant said at the hearing on 2 April that the journey from Pinsk to St Petersburg had taken three hours, perhaps a little more. The Presenting Officer referred to a map of the area and submitted that as the distance from Pinsk to St Petersburg was at least 500 miles even as the crow flies the journey could not have taken three hours.

In his submissions Mr Giovannelli of Counsel who appeared for the appellant before the Adjudicator submitted that the appellant had no choice about this journey as he left the matter to the priest. He submitted that the essential elements of the appellant's claims were true.

The Adjudicator accepted that the appellant had joined the BNF in about 1996 and may well have attended various demonstrations. He had been detained on several occasions by the police and on some of these occasions he had faced a court appearance, been convicted more likely than not of a public order offence and fined. He accepted that the appellant had a scar on his nose and that it was likely that this was as a result of an injury sustained during his detention by the police in October 1996. However, the Adjudicator did not accept the appellant's version of events about the incident starting on 17 October 1999. This was the most important incident in the evidence given by the appellant but nothing about it had been mentioned in the SEF or during interview. The Adjudicator did not believe that the incident in the woods had ever occurred. It was his view that it was much more likely that the original account both in his SEF and at interview that the appellant had been arrested by the police in October 1999 and released on 23 October 1999 was true. The Adjudicator did not believe that the appellant had suffered any severe ill-treatment during this period of detention nor that the police had tried to get him to become a police informer. So far as the journey to St Petersburg was concerned it could not possibly have been made in just over three hours.

In summary the Adjudicator accepted that the appellant did have some trouble with the police in about 1996 and may well have suffered a broken nose arising out of an incident taking place at that time. He was not satisfied that the appellant had come to the attention of the police in any meaningful way since then nor had he suffered any severe ill-treatment at their or anybody else's hands in the last three years of his life in Belarus. The appeal was dismissed on both asylum and human rights grounds. The Adjudicator concluded his determination by thanking both advocates for the spirit in which they had conducted the appeal. Their arguments were clear and helpful and had assisted him in what had been a difficult case.

However, it is clear from the grounds of appeal that Mr Giovannelli on behalf of the appellant was not satisfied with the conduct of the appeal nor with the spirit in which it had been conducted. In lengthy grounds it is submitted in ground one that the Adjudicator entered into the arena during the appeal hearing, cross-examining the appellant at some length in an adversarial and hostile tone. It is asserted that his role went far beyond that of a silent listener and that his interruptions of the respondent's cross-examination of the appellant amounted to more than mere clarification. Ground two argues that by his conduct at the hearing there was cause for concern as to whether the Adjudicator approached the appeal from a fair and impartial perspective. He had made adverse credibility findings in respect of evidence inaccurately recorded at the hearing. Ground three argues that the Adjudicator erred in dismissing the appeal even on the basis of the appellant's evidence which he accepted as credible.

When granting permission to appeal the Vice President noted that most of the first ground was devoted to complaints that the Adjudicator entered into the arena during cross-examination and did not conduct a fair hearing. There were many generalised assertions and statements of law but the specific items mentioned did not inherently suggest that the Adjudicator acted improperly. Paragraph 9 of the grounds revealed that the claimant got into considerable difficulties about the dates when he was in hospital and the Adjudicator had sought clarification. Paragraph 12 suggested that the Adjudicator intervened on several occasions when the claimant was not answering questions in cross-examination directly to remind him to do so. Paragraph 14 showed that when the claimant raised in cross-examination an entirely new and potentially significant issue that had not been raised before the Adjudicator intervened to establish if it was meant and then adjourned the hearing to enable a supplementary proof of evidence to be provided. The Vice President also noted that Mr Giovanelli did not complain at the hearing about the Adjudicator's conduct as he should have done if there was anything in the complaint. However, permission was granted in view of the seriousness of the allegations to which Mr Giovanelli had put his name. The second ground of appeal was linked with the first. The Vice President commented that there was nothing of arguable substance in the third ground. There was no arguable error in the Adjudicator's dismissal of the appeal on the basis of the facts established.

At the hearing before the Tribunal we had in evidence the Adjudicator's typed record of proceedings together with comments by the Adjudicator on the grounds in a letter dated 9 July 2003. There is a witness statement from Mr Giovanelli dated 8 October 2003 and a copy of his notes of the proceedings. The Tribunal were referred to the authorities cited in paragraph 4 of the grounds: Oyono (2002) UKIAT 02034, Kamil At (00/TH/01382), MNM (00/TH/02423*), Manzola [2002] UKIAT 08073 and Demir [2002] UKIAT 01943.

Mr Lee submitted that the Adjudicator's intervention in the hearing affected the way the appellant gave evidence. He had intervened on too many occasions. At one point in the evidence there appeared to be a sequence of 11 questions from the Adjudicator with two interposed questions from the Presenting Officer. The Adjudicator had also intervened in an adversarial and hostile way. Mr Lee referred us to Mr Giovanelli's notes of the proceedings at page 9 where he noted that the Adjudicator's comment "just tell us who it was" was in "an angry voice". At paragraph 10 of his notes the Adjudicator is noted as saying "just answer the question!". The Adjudicator had gone beyond asking questions in clarification. The manner of the intervention could indicate that he was hostile to the appellant who in any event had been affected by the interventions.

In his witness statement Mr Giovanelli said that the tone, the manner and timing of the questions asked by the Adjudicator were such as to increase the pressure on the appellant in giving his evidence. The Adjudicator had often repeated the same question in a more insistent manner, interrupted the appellant during the course of his explanation of an answer and used a forceful and at times dismissive and hostile tone in questioning the appellant. According to paragraph 8 of the witness statement after some sustained questioning on the subject of the incident in the woods, the Adjudicator rose in order to let him take instructions from the appellant. This was at 4.45 pm on 27 February 2003. The appellant was visibly distressed and it took some time for counsel to calm him down. Mr Giovanelli explained to him the importance of giving as full an account of the incident as he was able to. The appellant said that he did not wish to give this evidence in the presence of a female interpreter. As this conference lasted for between 30 and 40 minutes the hearing was adjourned at 5.30 pm, the Adjudicator directing that any further statements should be filed and served at least seven days prior to the next hearing date. The witness statement records that at the resumption of the hearing on 2 April 2003 the Adjudicator interrupted the appellant in the answer to the first and fifth questions of the day and he recorded that it was in an angry voice.

Mr Giovanelli concedes that he did not raise the question of the Adjudicator's interruptions at the hearing. As credibility was central to the issue the Adjudicator's goodwill was paramount. He considered that an attempt to restrict or control the interventions by raising concerns would be counter-productive.

Mr Lee referred the Tribunal to the authorities referred to above and in particular to MNM at paragraph 19, Manzole at paragraph 5 and Oyono at paragraph 10. He submitted that considering the interventions from the Adjudicator and their tone, the Tribunal should be left with a feeling of unease as to the findings of fact and the appeal should be remitted. The Adjudicator's hostile attitude was inappropriate and it affected the appellant's evidence.

Mr Blundell submitted that the Tribunal should hesitate before criticising an Adjudicator's conduct of a hearing. The starting point should be that there had been no complaint by the advocate at the hearing. This was not necessarily fatal but if matters of concern arose at the hearing they should have been raised then. Mr Blundell referred to the Tribunal's comments in paragraph 9 of Oyono that if a hearing was unfair those matters should be put to the Adjudicator at the time rather than waiting for the determination. In any event the issues raised by counsel were answered by the Adjudicator in his letter. His explanations were entirely valid. It was clear from reading the record of proceedings that the Adjudicator's use of an "angry voice" was preceded by an indication that the Adjudicator was attempting to get the appellant simply to answer the questions he was asked. The Adjudicator could not be faulted for attempting to clarify matters which were in issue or trying to keep the appellant to the point.

The issue in this appeal is whether the Adjudicator's conduct of the hearing has led to a breach of natural justice or to a procedural irregularity which either vitiates his findings of fact or means that the appellant has not had a fair hearing before an independent and impartial Tribunal.

Guidance on how an appeal should be conducted is set out in the authorities the Tribunal have been referred to. In MNM, which dealt primarily with a situation where the respondent was not represented, the President reminded Adjudicators that they must not involve themselves directly in questioning appellants or witnesses save as was absolutely necessary to enable them to ascertain the truth and they must never adopt or appear to adopt a hostile attitude.

In Oyono, the Deputy President reminded Adjudicators that when evidence is being taken from a witness and where there is representation on both sides, an Adjudicator's role is of silent listening. It may very occasionally happen that an Adjudicator is so unclear as to what he has heard that he needs to ask for something to be repeated. There may occasionally be difficulties with interpreters causing the Adjudicator's general control over the proceedings to come into play. But it is for the parties to bring out evidence in the order that they think appropriate and to put whatever contradictions in the evidence need to be put to the witness. When the evidence has been finished in the sense that there has been examination in chief and cross-examination and re-examination, it may be that the Adjudicator wishes to put matters arising out of the evidence to the witness: but the time for that is after re-examination. If the Adjudicator does ask the witness any questions he must then always give an opportunity to the parties to ask any further questions which arise from this. An Adjudicator who intervenes during the course of evidence is running the risk that he will be seen to be taking the side of one party or the other. This advice was repeated in Kamil At where the Tribunal reminded Adjudicators that in cases where both sides are represented questions from the court are best reserved for the conclusion of the taking of evidence from the witness and should ideally be few.

However, these guidelines must be looked at in the context of the Adjudicator's primary duty to manage the hearing to ensure that both parties have a fair hearing. Rule 37 of the Procedure Rules 2003 which came into force on 1 April 2003 makes it clear that the Appellate Authority may decide the procedure to be followed in relation to any appeal. Rule 38 sets out the directions an Adjudicator may give to ensure that an appeal is properly managed. If the parties are represented an Adjudicator should permit the representative to put the case in the way he thinks best subject to keeping proper control of the hearing and intervening where necessary to ensure that all issues are covered and that any uncertainties in the evidence are clarified. It is entirely appropriate for an Adjudicator to intervene during the examination of a witness to ensure that the witness answers the question asked rather than takes the question as an opportunity to add matters which are either irrelevant or will be covered in any event in a proper examination or cross-examination.

This was a case where according to the Adjudicator's letter of 9 July 2003 there were problems in getting the appellant to give a coherent account. He seemed unable or unwilling to answer questions put to him by both advocates. The Adjudicator accepts that he did intervene when this occurred. He says that there were many occasions when he had to remind the appellant to answer the question that he had been asked and not to make speeches. This appears from pages 9 and 10 of Mr Giovanelli's notes of evidence. This reads

"Q. Name of person took to STP?

A. Father Bogdan …

Adj. Just tell us who it was (angry voice)."

And on the following page:

"Q. Passed through other countries?

A. No neighbouring country – not crossed another country. Arrived at Slitansky prospect ….

Adj. Just answer the question!"

The Tribunal are satisfied that here the Adjudicator was intervening to tell the witness to limit his answers to the question he was asked rather than seeking to expand upon it at any great length. The Adjudicator was perfectly entitled to take this action to keep the hearing under some sort of control and to ensure that the evidence came out in a logical and coherent way.

The Adjudicator is also criticised for asking too many questions during the Presenting Officer's cross-examination. Allegations that an Adjudicator has intervened excessively during the evidence must be looked at in context. This was a hearing which started on 27 February 2003. According to the Adjudicator's notes it started at 2.55 pm and continued until 4.45 pm when it was adjourned for counsel to take instructions. It was finally adjourned at 5.30 pm. At the resumed hearing there was further cross-examination but no times are recorded on the record of proceedings but the hearing on 2 April 2003 of cross-examination and submissions covers pages 8-13 of the Adjudicator's record of proceedings in comparison with pages 1 to 7 for the hearing on 27 February 2003. The interventions of the Adjudicator must be considered in the light of the fact that this was a relatively long hearing. The interventions also went to the core part of the appellant's claim, the incidents of 20 October 1999 and the issues which arose from the failure to mention the full details of the incident in his original evidence and interview.

It is argued that the appellant was upset by the Adjudicator's intervention but again this must be looked at in the context of the Adjudicator adjourning the appeal at 4.45 pm for further instructions to be taken. The appellant was given an opportunity of putting in a further witness statement and the hearing was adjourned part heard. The appellant was not required to continue giving evidence on 27 February 2003 when it is said that he was in an emotional state because of the Adjudicator's interventions. At the resumed hearing the Adjudicator required the appellant to stick to the point when answering questions. Counsel in his notes has recorded the Adjudicator speaking in an angry voice. Mr Lee argues that this indicates that the Adjudicator was hostile to the appellant and it may have coloured either his assessment of the appeal or would give the impression that he was not objective. The Tribunal accept that an Adjudicator must not adopt or appear to adopt a hostile attitude but there will inevitably be times when an Adjudicator has to take a firm approach. There may well equally be times when the way an appellant answers questions or perhaps even the way a representative puts his submissions will test the patience of the Adjudicator. However, an Adjudicator is a professional judge and it can reasonably be assumed in the absence of clear evidence to the contrary that he will not let feelings of irritation or exasperation interfere with his assessment of the evidence.

Mr Blundell makes the point that if the proceedings were or seemed to be unfair, why was the issue not raised at the hearing. This issue is dealt with in Mr Giovanelli's witness statement. He concedes that he did not raise these points at the hearing. He says that in his experience each Adjudicator has his own style and approach. Some are more given to intervention than others. He took the view that it would be counter-productive to raise the issue before the Adjudicator.

This echoes the comments of Schiemann LJ in Maheshwaran [2002] EWCA Civ 173 albeit made in the different context of whether specific discrepancies should be raised by an Adjudicator. Schiemann LJ wrote as follows:

"Where much depends on the credibility of a party and where that party makes several inconsistent statements which are before the decision-maker, that party manifestly has a forensic problem. Some will choose to confront the inconsistencies straight on and make evidential or forensic submissions on them. Others will hope that least said soonest mended and consider that forensic concentration on the point will only make matters worse and it would be better to try and switch the Tribunal's attention to some other aspect of the case. Undoubtedly it is open to the Tribunal expressly to put a particular inconsistency to a witness because it considers that the witness may not be alerted to the point or because it fears it may have perceived something as inconsistent with an earlier answer which in truth is not inconsistent. Fairness may in some circumstances require this to be done but this will not be the usual case. Usually the Tribunal, particularly if the party is represented, will remain silent and see how the case unfolds.

The requirements of fairness are very much conditioned by the facts of each case. This has been stressed in innumerable decisions – see the many citations to this effect in Rees v Crane [1994] 2AC173. We have no doubt that the claimant's submission is framed in terms which are far too wide and in words which are not to be rigidly applied to every situation. Whether a particular course is consistent with fairness is essentially an intuitive judgment which is to be made in the light of all the circumstances of a particular case – see R v Secretary of State for the Home Department, ex parte Doody [1994] 1AC531 per Lord Mustill at page 560D. We turn to the facts of the present case."

The Tribunal must assess whether there has been a material procedural irregularity or a breach of natural justice in the context of the facts of this appeal. In our judgment it is clear that for whatever reason the appellant found it difficult to give concise answers to the questions put to him. The Adjudicator cannot be faulted for intervening to try and keep him to the point. It was not unreasonable for the Adjudicator to raise questions during the respondent's cross-examination to try and elicit just what the appellant was saying about the incident on 20 October 1999. Following that intervention he gave the appellant the opportunity of an adjournment to enable him to speak to his own counsel. To permit the appellant to speak to his counsel during the course of his evidence was a generous concession. The Adjudicator also permitted a further witness statement to be put in evidence. If the appellant had been upset by the Adjudicator's questions, ample opportunity was given for him to recover and resume his evidence at the adjourned hearing.

The Tribunal are not satisfied that the fact that the Adjudicator may have appeared angry at the resumed hearing has any material bearing on the fairness of the proceedings. The Tribunal are not satisfied that any irritation or appearance of anger affected the fairness of the hearing. The whole of the record of proceedings must be considered together with the way the Adjudicator actually dealt with the appeal in his determination. He took a more generous view of the appellant's evidence than the Secretary of State who had submitted in substance that the whole account was incredible. The Adjudicator has recorded in paragraph 31 of his determination that during the Presenting Officer's submissions he asked what the Presenting Officer's views would be if he found the appellant to be credible. This does not indicate to the Tribunal that the Adjudicator had shut his mind at that stage to the issues raised. In the event the Adjudicator whilst rejecting the appellant's evidence about the incidents of the night of 20 October 1999 did accept that the likelihood was that the appellant had been detained by the police for five days and was released on 23 October 1999. In the light of the fact that further graphic details of this last incident were given, which had not been raised when the appellant had first been interviewed or made his SEF, the Adjudicator was clearly entitled to draw an adverse inference from those omissions.

It was for the Adjudicator to decide what weight to attach to the appellant's confusion about when he was in hospital and to the inconsistencies as to whether he was in hospital when his house was searched. There were other matters in the evidence which cast doubt on the appellant's credibility such as his account of his journey from Pinsk to St Petersburg and to the contradiction highlighted by the Adjudicator in paragraph 21(e) as to whether he had escaped following the demonstration in 1996 or whether he had been detained. These were issues of fact for the Adjudicator to resolve.

In summary the Tribunal is not satisfied that the Adjudicator's conduct of the hearing was in breach of the rules of natural justice nor did it amount to a procedural irregularity such as to undermine his findings. Looking at the determination as a whole together with the record of proceedings and the comments of both the Adjudicator and counsel, the Tribunal is not satisfied that the proceedings can be categorised as unfair in any way.

It follows that this appeal is dismissed.

H J E Latter

Vice President