Borissov v Secretary of State for the Home Department

JurisdictionEngland & Wales
CourtCourt of Appeal (Civil Division)
Judgment Date20 March 1996
Date20 March 1996

Court of Appeal

Hirst, Peter Gibson, Ward LJJ

Anatoli Vladimirovich Borissov
(Appellant)
and
Secretary of State for the Home Department
(Respondent)

J G Raymond for the appellant

S Kovats for the respondent

Cases referred to in the judgments:

Lawrence Assah v Immigration Appeal Tribunal [1994] Imm AR 519.

R v Immigration Appeal Tribunal ex parte Rajendra Kumar [1995] Imm AR 386.

R v Immigration Appeal Tribunal ex parte Mohammed Dauda (No 2) [1995] Imm AR 600.

Appeals Tribunal jurisdiction whether the Tribunal was entitled to review facts as well as questions of law whether Tribunal entitled to reverse adjudicator's findings of fact where those were found to be unsustainable. Immigration Act 1971 ss. 19, 20.

The appellant was a citizen of Russia. He had been refused asylum by the Secretary of State. He appealed. A special adjudicator allowed his appeal on the basis that the appellant had a well-founded fear of persecution for his political opinions: he rejected the appellant's contention that he had a conscientious objection to military service.

The Secretary of State appealed. The Tribunal after a careful analysis of the evidence allowed the appeal of the Secretary of State, concluding that the earlier activities of the appellant taking into account the effluxion of time and the changes which had occurred in Russia would not, if he returned there, give rise to a well-founded fear of persecution.

Counsel argued before the Court of Appeal that the Tribunal had erred in substituting its own conclusions on facts for those of the special adjudicator.

Held

1. The jurisdiction of the Tribunal was not restricted to the consideration of matters of law.

2. Where on examination of the evidence, an adjudicator's conclusions on the facts were unsustainable, the Tribunal was entitled to reverse those findings coming to its own conclusions.

3. No doubt that power would be used sparingly and naturally the Tribunal would be most reluctant to interfere with a finding of primary fact by the adjudicator which was dependent on his assessment of the credibility of a witness who had appeared before him.

4. In the instant case the Tribunal had been entitled to come to the conclusions to which it had come, after its analysis of the evidence.

Hirst LJ: This is an appeal (by leave of the single judge) by the appellant, Mr Anatoli Vladimirovich Borissov, against the order of the Immigration Appeal Tribunal dated 31 October 1994, whereby it ordered that the appeal of the Secretary of State for the Home Department against the determination of the special adjudicator, Professor K Counter, dated 23 August 1994 (in which he had allowed Mr Borissov's appeal against the refusal of asylum) should be allowed. This appeal, direct to the Court of Appeal, lies pursuant to section 9 of the Asylum and Immigration Appeals Act 1993, which provides as follows:

Appeals from Immigration Appeal Tribunal

(1) Where the Immigration Appeal Tribunal has made a final determination of an appeal brought under Part II of the 1971 Act (including that Part as it applies by virtue of Schedule 2 of this Act) any party to the appeal may bring a further appeal to the appropriate appeal court on any question of law material to that determination.

Subsection (2) says it can only be brought with the leave either of the Tribunal or the Court of Appeal itself. Then (3):

In this section the appropriate appeal court means

(a)

(b) in any other case the Court of Appeal.

It follows that the scope of this appeal is limited to any question of law material to the determination of the Immigration Appeal Tribunal.

The appellant is a Russian citizen and was born on 1 July 1962. On 13 December 1991, he arrived in the United Kingdom and was given leave to enter for six months as a visitor, but subsequently claimed asylum. He submitted an asylum application form on 28 January 1992, but the matter did not proceed for a further two years due to an intervening conviction of the appellant on a firearms offence, and a group of driving offences. This conviction has no relevance, save to explain the delay. He was interviewed on 14 February 1994, and supplied information which was summarised in the Home Secretary's refusal letter dated 15 June 1994, which the special adjudicator recorded as being a fair summary of the evidence before him, as follows:

When you were interviewed concerning your asylum application on 14 February 1994, you said you feared returning to Russia because you faced criminal action for having ignored four letters calling you up for military service. You said you had problems when you had served in the army in Afghanistan between 1980 and 1982. You claimed to have expressed your objections to the war to your political officer. You said that on your return to the USSR you had been invited to address a student meeting, but had been warned by the KGB that if you spoke against the war, you might be branded a political agitator and could face imprisonment of 5 or 6 years. You said this had happened in 1985/86. You claimed that you had problems again in 1990 when you and other veterans were asked to re-enlist to fight Georgia. You stated that friends of yours who had answered the call-up had been sent to Azerbaijan. You also said that if you were returned to Russia it would be known that you had travelled abroad and had sought political asylum; you claimed that you would be considered as a traitor and would face the highest punishment. You also said that by leaving Russia you had lost your residence permit and that this was a criminal offence.

With regard to your objections to undergoing military service, the Secretary of State did not consider that the wish to avoid such service constituted grounds for the grant of asylum. The fear of prosecution and punishment for draft evasion does not, in itself, constitute a well-founded fear of persecution as defined by the 1951 United Nations Convention. Moreover, the Secretary of State did not consider that any punishment you might receive as a result of your draft evasion would be disproportionately severe.

As an additional matter, the Secretary of State noted that you had never been detained and, apart from the interviews with the KGB in 1985/86, you had never experienced any problems with the Russian authorities. He also noted that although you said you had had to wait two months for a passport, you had in fact obtained two passports without difficulty and had been able to leave Russia. The Secretary of State considered that if the authorities had been concerned about your avoidance of military service you would not have been able to obtain a passport and leave the country with such ease.

The Secretary of State receives information about the political situation in different countries as it relates to asylum applications from a variety of different sources, including the Foreign and Commonwealth Office. He is not aware that those who have applied for asylum in a foreign country have, on their return, been prosecuted in Russia for having done so. Furthermore, he considered that your claim that you had lost your residence permit by leaving Russia did not constitute grounds for the grant of asylum.

To give a rather fuller picture, the following evidence (which was before the special adjudicator) is pertinent. First of all, on his original application form, when asked: Did you encounter any problems on departure [from Russia]? he said By air. No difficulty whatsoever in leaving Russia. Then he was asked: Have any members of your family been involved in any political activities? and he answered: My mother had some problems but I do not think it can be attributed as political activity. Whilst I was in Afghanistan in hospital she said to the minister that it was equivalent of the Vietnam disaster. Up to that point she was the equivalent of a Dean of a university. Subsequently she was demoted to lecturer. Then, in his evidence-in-chief to the special adjudicator, which followed very closely his answers in his interview (which were, of course, also before the special adjudicator and are in the file starting at page 108) he said as follows:

I was a soldier at 18, conscripted in 1980. They sent me to Afghanistan. I was a Private. I was fighting there for 241/2 months. It was a must.

Did you have any personal views about it?

Yes. I remember about the Vietnam war and I compare it to that.

Did your views create any problems?

Yes. After the Afghanistan war I was to take academic leave for a year.

Did you have any problems in Afghanistan?

1. I was there against my will.

2. I did not agree with it.

Did you make any protests in Afghanistan?

For two years I argued with them. But there was no chance of success. I argued with a Commissar. He was a political officer. He was the officer responsible for my unit.

Was it clear you were making a public protest?

Yes. It was known because

1. I was in the military discipline section.

2. Those who had done military service generally got better posts. There was no such...

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