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Cite as: [2004] UKIAT 00117, [2004] UKIAT 117

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APPEAL No. KR (Perceived bias- fair hearing) Iraq [2004] UKIAT 00117

IMMIGRATION APPEAL TRIBUNAL

Date of hearing: 5 April 2004

Date Determination notified: 26th May 2004

Before

Mr H J E Latter (Vice President)

Dr H H Storey (Vice President)

Between

KR	APPELLANT
and
Secretary of State for the Home Department	RESPONDENT

For the appellant: Mr A Taylor, of Counsel, instructed by Henry Hyams

For the respondent: Mr S Halliday, Home Office Presenting Officer

DETERMINATION AND REASONS

The appellant, a citizen of Iraq, from the KAA, appeals against the determination of an Adjudicator, Mr C B Kealy, who dismissed his appeal against the decision made on 17 May 2001 giving directions for his removal following the refusal of his claim for asylum.

The appellant arrived in the United Kingdom on 10 December 1999, claiming asylum the same day. The basis of his claim was that he was at risk of persecution by members of the Iraqi government security forces operating in Northern Iraq. He also claimed to be at risk of persecution from members of the Islamist Party in Kurdistan because he had provided medical treatment for a person who suffered injuries inflicted by that party. For the reasons which the Secretary of State set out in his letter dated 14 March 2001 he was not satisfied that the appellant was entitled to asylum. There was an appeal against this decision which was dismissed by an Adjudicator. This determination was set aside by the Tribunal and the appeal remitted for a fresh hearing which took place before Mr Kealy on 7 July 2003.

The appellant's claim can briefly be summarised as follows. He is a pharmacist by training and occupation. For several years he worked for two non-governmental organisations (NGOs) operating in the KAA. It was his claim that those who worked for NGOs were routinely pursued and harassed even in the KAA by forces loyal to the Ba'ath regime in Baghdad. He said that he was specifically targeted in February 1996. He and others when travelling were shot at by people who might have been Iraqi agents. There was a further incident in May 1999. When travelling, he was ambushed. One of his fellow workers was injured and a guard killed.

In November 1999 a man who had been shot by Islamists came to him for treatment. Despite threats from the Islamists the appellant continued to treat the injured man. He received a warning letter and a meeting was arranged. The appellant says that he was taken blindfolded to a house where a high-ranking Islamist accused him of being a communist and anti-religion. He threatened to have the appellant shot unless he stopped treating the injured man who was meant to die. The appellant was allowed to go only after agreeing to administer a lethal injection.

A few days later a man, whom he recognised as one of the Islamists, followed him as he was going home and shot at him as he tried to escape. He managed to reach home and tell his parents what had happened. His father arranged for him to stay elsewhere until he left Iraq. Two days later people shot at the family house and injured his mother. It was his claim that he would be at risk either from the Ba'athists or from the Islamists who had their main base in PUK controlled Suleimaniya. On 22 November 1999 the appellant crossed into Iran and then travelled to Turkey in a group of 12 people accompanied by an agent. They had a narrow escape when they were fired on at the Turkish border. He reached Istanbul on 29 November 1999 and after a few days travelled by lorry to what turned out to be the United Kingdom.

At the hearing before the Adjudicator it was conceded that in the light of the change of circumstances the appellant no longer had any fear of persecution from the former regime in Iraq. It was argued that he would still be at risk from IMIK. In evidence a letter dated 10 November 1999 was produced from the military office of IMIK. It urged all members of the military office to arrest the appellant. On receiving this letter the appellant complained to the police. He was then given a document dated 14 November 1999 which recorded his complaint. This document requests officials to arrest the offenders and bring them to justice. No one was arrested. The appellant accused the PUK and its police of insincerity because they were funded from Iran and were on good terms with IMIK. He gave oral evidence about the occasion when he was shot at on the way home. He said that he sensed that he was being followed and quickened his pace. The man then shouted his name and he turned round. He saw that the man was armed and he ran. The man shot at him and missed. The appellant panicked and ran home. He did not go directly but lurked nearby in case he had been followed. Once he realised that it was safe he then returned home. He recognised the man who shot at him as one of the people who had taken him to the IMIK base. During his evidence the appellant was referred to a letter from Better Service for Kurdistan (BSK) certifying that the appellant had worked as a driver from "may 1998 to may 1999". The Adjudicator is said to have commented that the document had been typed by an amateur.

In her submissions the Presenting Officer submitted that the appellant's evidence was not credible. He had described being shot at on four occasions but had never been personally injured despite on his account being the intended target on each occasion, a result which smacked of Hollywood. If he had truly considered himself to be at risk from the Iraqis he would hardly have exposed himself to the risk of arrest at checkpoints having recently worked with an NGO, nor would he have been simply released if the Iraqis had any interest in him as an individual. Mr Moralli who appeared on behalf of the appellant before the Adjudicator submitted that the appellant's evidence was credible. He referred to the BSK letter which he submitted should be accepted on its own terms. It contained typing errors but they might just as well be those made by typists whose first language was not English.

The Adjudicator has set out his conclusions in paragraph 9 of his determination. In the light of the concession that there was no longer any fear from the former regime, he considered the risk from IMIK. He commented that the first thing which emerged with clarity was that before the claim that he provided medical assistance to the victim of an IMIK shooting, the appellant had not been of any interest to the Islamists. As a person with access to the intended victim, it was just possible that the Islamists tried to persuade the appellant to finish the task for them and at that time they were sufficiently angry with his failure to comply to try to kill or frighten him. The Adjudicator was inclined to accept the police report as a genuine document. It recorded the second of the two named incidents but not the first. It made no reference to the deliberate attempt to shoot the appellant in the street, an incident which must have been known about when the report was made.

That made the Adjudicator less inclined to believe that that incident had happened. He commented that the evidence was further weakened by the astonishing failure of the would-be assassin to follow the appellant home. They must have already known where he lived because they had already been there and they were able to shoot it up and throw a grenade only a few days later. He did not believe this part of the appellant's story. He also did not believe that there had ever been an IMIK document in the form produced in evidence. He did however accept as possibly true the claim that Islamists had shot up his home and injured his mother. The appellant may have been genuinely afraid at that time and decided to leave for that reason.

However, it was apparent from his own evidence and the PUK document that the PUK police were receptive to his complaints against the Islamists. The objective evidence supported that conclusion. It was the Adjudicator's view that when the appellant left the KAA in 1999 there was a sufficiency of protection provided by the local police. There was no evidence that the situation had got worse: quite the contrary. It was the Adjudicator's view that there was a fully functioning police and judicial system in each of the KAA areas which was capable of providing effective protection. For a person who feared an Islamist group in 1999 there seemed on the available evidence to be no reason to believe that in 2003 he would have any continuing reason to fear that group or its members.

The Islamists had fragmented in 2001 and while there may well be surviving splinters still in the KAA, those splinter groups were engaged in other matters than the disobedience of a minor pharmacist 4 year previously. The ability and desirability of the KDP and the PUK to eliminate Islamist splinter groups and afford protection against them must be even stronger than in 1999. For these reasons the Adjudicator dismissed the appeal on both asylum and human rights grounds.

The Tribunal have set these matters out at length so the complaints made about the Adjudicator in the grounds of appeal can be seen in context. Following the hearing Mr Moralli wrote a note for his instructing solicitors expressing the view that the Adjudicator's approach to the case had been "presumptuous" and that if he dismissed the appeal, his findings would be unsafe because of his approach. He identified two particular issues. During examination in chief Mr Moralli directed the appellant's attention to the letter from the BSK. He had intended to ask the appellant to clarify the source of the document when the Adjudicator commented that the document had been "typed by an amateur" as the dates May 1998 – May 1999 had been spelt with a small "m". Mr Morralli says that he responded by indicating that this was no reason to dismiss the document or its legitimacy. He addressed this issue in his closing submissions. The second issue raised is that during closing submissions the Presenting Officer said that it was not credible that the appellant had been shot at on four separate occasions and each time it was others who were injured and he had escaped. The Adjudicator had intervened saying and suggesting that this was akin to a Hollywood movie. The Presenting Officer agreed with that and adopted the Adjudicator's comments. In his submissions Mr Moralli had addressed the unfairness of such a conclusion and pointed out that on the first two shooting incidents the appellant had never claimed that he was targeted personally. The Adjudicator then pointed out that it was not the Presenting Officer but he who had described the version of events as a Hollywood movie. These criticisms re-appear in the grounds of appeal to support a contention that the appellant did not have a fair and impartial hearing.

At the hearing before the Tribunal Mr Taylor did not seek to pursue any argument based on the comment about whether or not the letter produced from BSK had been typed by an amateur. He restricted his submissions to the comment about whether the appellant's account was akin to a Hollywood movie. He argued that the issue was whether this comment encapsulated the respondent's submission or whether it indicated the direction in which the Adjudicator's thoughts were moving. He conceded that he could not suggest that an Adjudicator should be prevented from raising issues which concerned him. He argued that this comment indicated that the Adjudicator regarded the appeal as a foregone conclusion. He pushed this submission to its logical conclusion by arguing that the Adjudicator's analysis of the evidence in paragraph 9 was not an accurate reflection of what the Adjudicator believed but was written in such a way as to fend off any criticism of his comments made during the hearing.

Mr Halliday submitted that it was entirely speculative to suggest that the determination was worded in a way to redress the Adjudicator's comments during the hearing. An Adjudicator was entitled to raise matters which concerned him. It may be that it was unfortunate to use language such as akin to a Hollywood movie but there was no reason to believe that there had been any injustice or partiality. Both the appellant's counsel and the appellant had commented on this issue. There was no substance in the grounds of appeal.

Two criticisms are made of the Adjudicator in the grounds of appeal. The first is that he questioned the document produced from BSK by saying that it had been typed by an amateur because May was spelt with a small "m". Mr Taylor rightly did not seek to pursue this criticism. It is far better for the Adjudicator to raise matters which concern him such as the typing of the document so that they can be addressed in evidence.

The second issue is that the appellant did not have a fair hearing because during the Presenting Officer's submissions the Adjudicator intervened suggesting that the event described by the appellant were akin to a Hollywood movie. According to the grounds, the Presenting Officer agreed and adopted the suggestion as part and parcel of her closing submissions. Accordingly to ground 2.2 Mr Moralli addressed the unfairness of such a conclusion in his closing submissions.

The Adjudicator has been asked to comment on this ground. His comments read as follows:

"The point which Miss Birtles was making during the submissions was that the appellant had managed to emerge unscathed from the various determined attacks on him, a situation which I likened to a Hollywood movie, thinking of a particular situation usually in western, where the hero escapes a volley of hostile fire and then kills his enemy with one shot from a pistol at improbable range, but James Bond would have done as well. It struck me as a useful one line encapsulation of Miss Birtles' general credibility submission on the point. The appellant had obviously picked up the point when he had referred at the end to not acting like Rambo and Mr Moralli made the same point perfectly properly during his closing submissions. My comment was not intended to belittle the appellant's evidence but to summarise the submission being made at the time."

The Adjudicator went on to comment on the assertion that his approach to the appeal was presumptuous as follows:

"To suggest that my approach to the appeal was thereby presumptuous making proceedings unfair is of course a matter for the Tribunal and not for me. I accepted some parts of the appellant's evidence but not others as can be seen from section 9 of the determination."

The Tribunal also has the Adjudicator's record of proceedings which in the submissions made by the Presenting Officer the following is recorded:

"Credibility? - Shot at times X 4 but never injured – others injured but not at App who was the actual target (Hollywood!)".

Mr Moralli made submissions that the account given by the appellant was credible. It is clear from the record of proceedings that the Adjudicator gave the appellant an opportunity to comment after his representative's submissions. He is recorded as saying "not act like Rambo – many soldiers cause wars".

The issue for the Tribunal is whether the comment about the appellant's account being akin to a Hollywood movie indicates that the Adjudicator prejudged the appellant's credibility or in some other way indicates that the appellant did not have a fair hearing before an independent Tribunal.

In T (Algeria) [2003] UKIAT 00128 the Tribunal considered the issue of bias. The Tribunal wrote as follows in paragraphs 7-9:

"Since the Tribunal decision in MNM, the issue of the test for determining apparent bias has been the subject of consideration by the House of Lords in Porter and Another v Magill [2001] UKHL 67. The test for apparent bias had been formulated by Lord Goff of Chieveley in R v Gough [1993] AC646 in the following terms:

"…having ascertained the relevant circumstances, the court should ask itself whether, having regard to those circumstances, there was a real danger of bias on the part of the relevant member of the Tribunal in question, in the sense that he might unfairly regard (or have unfairly regarded) with favour, or disfavour, the case of a party to the issue under consideration by him …"

That formulation of the relevant test was reconsidered in the light of Strasbourg jurisprudence by the Court of Appeal in Re Medicaments and Related Classes of Goods (No 2) [2001] 1WLR 700, who summarised the Court's conclusions as follows:

"When the Strasbourg jurisprudence is taken into account, we believe that a modest adjustment of the test in R v Gough is called for, which makes it plain that it is, in effect, no different from the test applied in most of the Commonwealth and in Scotland. The Court must first ascertain all the circumstances which have a bearing on the suggestion that the judge was biased. It must then ask whether those circumstances would lead a fair-minded and informed observer to conclude that there was a real possibility, or a real danger, the two being the same, that the Tribunal was biased."

That formulation was approved by the House of Lords in Porter and Another v Magill save for deletion of the reference to "a real danger". In the leading judgment given by Lord Bingham of Cornhill, he said in this respect:

"Those words no longer serve a useful purpose here, and they are not used in the jurisprudence of the Strasbourg Court. The question is whether the fair-minded and informed observer, having considered the facts, would conclude that there was a real possibility that the Tribunal was biased."

In our judgment there was nothing objectionable at all in the Adjudicator's comment made during the Presenting Officer's submissions. The Adjudicator said that he regarded the comment as a useful one line encapsulation of the general credibility submission. Even if, as Mr Taylor argues, it indicated the way the Adjudicator's mind was going, there can still by no objection to this comment. An Adjudicator can hardly be faulted for raising an issue which concerns him – not least as in the present appeal both the appellant's representative and the appellant himself had an opportunity of commenting on the point.

The Tribunal have no hesitation in rejecting the submission that the Adjudicator had prejudged the issue of credibility and then set out his conclusions in such a way as to deflect that criticism. His conclusions on the appellant's evidence indicate that he had not prejudged the credibility of the account as a whole. He accepted that it was just possible that the appellant had been required by Islamists to finish off the task of killing their victim which they had failed to achieve. He accepted that the police report was a genuine document. On the basis of that evidence he was entitled to find that the second of the two incidents which the appellant claimed had taken place had happened whereas the first had not. In so far as the IMIK document was concerned the Adjudicator was entitled to find it an unreliable document. In our judgment the Adjudicator's conclusions indicate a careful and cautious approach to the assessment of the appellant's account. His findings and conclusions were properly based on the evidence for the reasons he gave. He accepted that the appellant may well have been genuinely in fear when he left Iraq but nonetheless he was entitled to find that there was a sufficiency of protection at that time but also that at the date of hearing he would have no continuing reason to fear the surviving splinter groups of IMIK.

In summary there is no proper basis for the assertion that the appellant did not receive a fair hearing from the Adjudicator. The Adjudicator's comments when read in context do not indicate anything other than an attempt to highlight and identify the issues. A fair minded and informed observer would not have concluded that there was a real possibility of bias. It seems to us to be verging on the vexatious to suggest that the Adjudicator's comments indicate that the appellant did not have a fair hearing or that the Adjudicator had prejudged the appeal.

This appeal is dismissed.

H J E Latter

Vice President