APPEAL No. MA (Fresh evidence) Sri Lanka *  UKIAT 00161
Date of hearing: 20 & 21 May 2004
Date Determination notified: 21 June 2004
|Secretary of State for the Home Department||RESPONDENT|
"In conclusion, I find that the appellant is not credible and that both his first and second stories are completely untrue. In the words of the Tribunal in Dasdemir HX/00957) (when they applied Karanakaran, Court of Appeal, 25.2000) I comprehensively disbelieve the appellant and I make it clear that I see no reasonable likelihood of truth in any evidence which he has given relating to the material issues in this case and that I have found all such evidence to be incredible to the extent that I am not prepared to consider it at all. I completely reject it. It follows that he cannot prove his case. In view of my credibility findings it is unnecessary for me to consider the question of 'Exclusion' from Convention protection."
"I conclude that, in possession of a temporary travel document from the Sri Lankan High Commission in London, he would simply be waved through the airport controls, as the background evidence and Tribunal decisions indicate is the case with returned asylum seekers who do not have particular risk factors attached to them. Because of my complete rejection of his credibility I also totally reject his evidence of his having had difficulties at the airport on leaving Sri Lanka. The result of my credibility finding is that I conclude that he has not proved to the lower standard of proof a genuine 1951 Convention fear of persecution which is objectively well-founded."
"These witnesses were not called at the hearing before the Adjudicator as the question of whether the Appellant was a member of the LTTE had not been put into question and his solicitors believed that the detail given in the Appellant's witness statement and the photographs and video he was able to produce were sufficient to meet the burden of proof which fell on him."
The framework for the decision
"92. In relation to the role of the IAT, we have concluded:
(i) The Tribunal remains seized of the appeal, and therefore able to take account of new evidence, up until the time when the decision was formally notified to the parties;
(ii) following the decision, where it was considering the application for leave to appeal to this Court, it had a discretion to direct a rehearing; this power was not dependent on its finding an arguable error of law in its decision;
(iii) however, in exercising such discretion the principle of finality would be important. To justify re-opening the case, the IAT would normally need to be satisfied that there was a risk of serious injustice, because of something which had gone wrong at the hearing, or some important evidence which had been overlooked; and in considering whether to admit new evidence, it should be guided by Ladd v Marshall principles, subject to any exceptional factors.
23(ii) New evidence will normally be admitted only in accordance with 'Ladd v Marshall principles' (see Ladd v Marshall  1 WLR 1489), applied with some additional flexibility under the CPR (see Hertfordshire Investments Ltd v Bubb  1 WLR 2318, 2325; White Book para 52.11.2). The Ladd v Marshall principles are, in summary: first, that the fresh evidence could not have been obtained with reasonable diligence for use at the trial; secondly, that if given, it probably would have had an important influence on the result; and, thirdly, that it is apparently credible although not necessarily incontrovertible. As a general rule, the fact that the failure to adduce the evidence was that of the party's legal advisers provides no excuse: see Al-Mehdawi v Home Secretary  1AC 876."
"(2) In reaching their decision on an appeal under section 101 the Tribunal may consider evidence about any matter which they think relevant to the adjudicator's decision, including evidence which concerns a matter arising after the adjudicator's decision.
(3) But where the appeal under section 82 was against refusal of entry clearance or refusal of a certificate of entitlement –
(a) subsection (2) shall not apply, and
(b) the Tribunal may consider only the circumstances appertaining at the time of the decision to refuse.
(4) In remitting an appeal to an adjudicator under subsection (1)(c) the Tribunal may, in particular –
(a) require the adjudicator to determine the appeal in accordance with directions of the Tribunal;
(b) require the adjudicator to take additional evidence with a view to the appeal being determined by the Tribunal."
"41. The Court of Appeal in Ravichandran v SSHD  Imm AR 97, considered the different provisions of the Asylum and Immigration Appeals Act 1993 which had no such express provisions dealing with the time at which matters had to be considered. However, in relation to asylum appeals, where the issue is whether removal would breach the Refugee Convention and having regard to the obvious policy sense in enabling the appellate bodies to consider what may be post-Adjudicator circumstances changing more or less favourably to any party, the Court concluded that asylum matters had to be considered as at the date of the hearing.
42. It has been the general practice of the Tribunal over the years to consider evidence and to reach conclusions in asylum and human rights cases in the light of the material before it as to the current circumstances, whether of a personal nature or relating to the way in which country circumstances bear upon the appeal. This is different from but related to its power to consider evidence which could have been but was not put before the Adjudicator. It includes material which by its nature could not have been before the Adjudicator. Commonly it will include the latest country information but it can also include evidence of individual changes in circumstance, whether of marriage or children or medical condition. It can also include evidence which could and should have been before the Adjudicator."
"43. Sometimes this evidence will reinforce a ground of appeal; at other times it will support opposition to it. Sometimes a ground of appeal may be good in itself, but will have become insufficient to lead to the appeal being allowed, because the error now has no significance in the light of new circumstances, and a remittal for further consideration would inevitably lead to the same result. This jurisdiction is not usually controversial. Conversely, where the appeal grounds are insufficient themselves to lead to the allowing of an appeal, but where circumstances have changed such that the original decision of the Adjudicator cannot now stand, the Tribunal's general practice has been to allow the appeal. It can work both ways as between the Secretary of State and a claimant. Mr Malik did not suggest that we had no power to allow an appeal on that basis.
44. This makes sense of the jurisdiction to decide whether removal would be a breach of the Refugee Convention and, although the human rights grounds in the 1999 Act (by contrast with section 84(1)(g) of the 2002 Act), focus on the decision of the Secretary of State rather than on the fact of removal as being the cause of a breach of the ECHR, it is plain that the Tribunal has to look to the consequences of the implementation of the decision anyway. Under each Convention, the question of a breach or entitlement is not based on past events but on an assessment of current risk upon the assumed removal. Indeed the suspension of removals pending determination of appeals enables and its purpose in part is to enable the determination of risk on removal to be judged against the most up-to-date material. That also has to operate even-handedly as between the Claimant and the Secretary of State; it could not be right for decisions on the Conventions to be made on the latest material only where that assists the claim.
46. We consider therefore that the key to whether the Tribunal can consider the later material at the appeal and consider the Tribunal's earlier assessment of it, is the simple fact that it has the appeal before it, rather than whether or not an Appellant succeeds on a ground of appeal, a ground which may be wholly unrelated to the new material. The alternative approach would introduce a degree of arbitrariness into the decision making process at the appellate stage, with the ability to hear the new material depending on whether or not it was thought, for example that the reasoning of an Adjudicator had been adequately expressed on what might be a wholly unrelated point. Once permission is granted, the appeal is before the Tribunal; the grounds have to be considered along with any other material relevant to a decision on the appeal. The appeal has to be dealt with in the light of the current material, including for example, factual material about the claimant. As we have set out above, the question of breach of either Convention, risk on removal and entitlement to refugee status are looking to the future; it would scarcely be a rational system if such a decision in the Tribunal, for or against a claimant or Secretary of State, turned on the existence of an unrelated error, say, in adequacy of reasoning by the Adjudicator."
The fresh evidence
The application of the Ladd v Marshall tests
Error of law
"In our view, the time has now come to accept that a mistake of fact giving rise to unfairness is a separate head of challenge in an appeal on a point of law, at least in those statutory contexts where the parties share an interest in co-operating to achieve the correct result. Asylum law is undoubtedly such an area. Without seeking to lay down a precise code, the ordinary requirements for a finding of unfairness are apparent from the above analysis of CICB. First, there must have been a mistake as to an existing fact, including a mistake as to the availability of evidence on a particular matter. Secondly, the fact or evidence must have been 'established', in the sense that it was uncontentious and objectively verifiable. Thirdly, the appellant (or his advisers) must not have been responsible for the mistake. Fourthly, the mistake must have played a material (not necessarily decisive) part in the Tribunal's reasoning."
"In our view, the CICB case points the way to a separate ground of review, based on the principle of fairness. It is true that Lord Slynn distinguished between 'ignorance of fact' and 'unfairness' as grounds of review. However, we doubt if there is a real distinction. The decision turned, not on issues of fault or lack of fault on either side; it was sufficient that 'objectively' there was unfairness. On analysis, the 'unfairness' arose from the combination of five factors:
i) An erroneous impression created by a mistake as to, or ignorance of, a relevant fact (the availability of reliable evidence to support her case);
ii) The fact was 'established', in the sense that, if attention had been drawn to the point, the correct position could have been shown by objective and uncontentious evidence;
iii) The claimant could not fairly be held responsible for the error;
iv) Although there was no duty on the Board itself, or the police, to do the claimant's work of proving her case, all the participants had a shared interest in co-operating to achieve the correct result;
v) The mistaken impression played a material part in the reasoning."
MR JUSTICE OUSELEY