Haile v Immigration Appeal Tribunal
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE SIMON BROWN,LORD JUSTICE MUMMERY,LORD JUSTICE LONGMORE |
| Judgment Date | 03 May 2001 |
| Neutral Citation | [2001] EWCA Civ 663 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | NO: C/2001/0350 |
| Date | 03 May 2001 |
[2001] EWCA Civ 663
Vice President of the Court of Appeal, Civil Division
(Lord Justice Simon Brown)
Lord Justice Mummery
Lord Justice Longmore
NO: C/2001/0350
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM ADMINISTRATIVE COURT
(MR JUSTICE MACKAY)
Royal Courts of Justice
Strand
London WC2
MR JAMES GILLESPIE (instructed by Lloyd & Associates, 56 Uxbridge Rd, London W12 8LP) appeared on behalf of the Applicant
MR ANGUS MCCULLOUGH (instructed by Treasury Solicitor, London) appeared on behalf of the Respondent
The appellant is a 41-year-old Ethiopian national. He appeals by leave of this Court granted today against Mackay J's order of 26th January 2001 dismissing his application for judicial review to quash a decision made by the IAT on 28th March 2000, refusing him leave to appeal against the Special Adjudicator's determination on 24th February 2000 dismissing his appeal against the Secretary of State's decision on 4th July 1994 refusing his application for asylum.
When I indicate that the Special Adjudicator's dismissal of the appellant's appeal was the third in a series of such decisions made by different special adjudicators, that suggests something of the long history of this matter. The appellant's second special adjudication followed a second decision to deport him following the initial failure of his asylum application, a decision deliberately made so as to give him that further right of appeal. The third special adjudication was the result of the appellant's successful appeal to the IAT against the second special adjudicator's determination.
At the heart of the present appeal lies fresh evidence which was neither before the IAT, when it refused the appellant leave to appeal, nor before Mackay J, when he dismissed the application to quash the IAT's refusal of leave. It is not, I should say at once, fresh evidence in the conventional sense, evidence additional to that put before the special adjudicator; rather it is evidence to show that the special adjudicator misheard or misnoted, and in the result misunderstood a significant piece of evidence which was before him with the result that he reached a decision which he otherwise might not have reached.
The background facts
The following is I think a sufficient summary of the background to the third Special Adjudicator's determination.
The appellant arrived in this country on 26th July 1993, obtaining six months leave to enter as a visitor. He claimed asylum on 4th October 1993, stating that during September 1993 his parents' house in Ethiopia had been searched by security personnel, anti-government documents and a list of names of contacts being found and taken away, and his father detained. He said that he was a member of the civic forum, part of an anti-government body known as the Coalition of Ethiopian Democratic Forces ("COEDF"), and that having worked on COEDF's behalf he was at risk of persecution if, following the search, he were to return to Ethiopia.
On 17th November 1998, between the first and the second special adjudicators' appeals, the appellant received a letter from a Captain Santayehu ("the Captain") by way of a witness statement purporting to confirm the appellant's involvement in COEDF and the risk which he would run if he were returned home.
The second special adjudicator held the Captain's letter to have been a self-serving attempt to embellish the appellant's asylum claim, and dismissed his appeal. The IAT allowed the appellant's appeal against that determination on the ground that the appellant had not been given the opportunity to explain why he himself had not previously asserted, as the letter had, that the Captain had given him the secret documents which came to be found in the search of his parents' house.
The Third Special Adjudicator's Determination
The special adjudicator found the appellant's evidence not credible in relation to various issues central to his claim for asylum, in particular his asserted involvement with COEDF and his fear of persecution and, accordingly, dismissed the appeal. He gave six reasons for his conclusion on credibility, only one of which is critical to this appeal. The other five may be briefly summarised as follows: First, that the appellant was not able to give satisfactory answers as to the nature of the underground work that he had been involved in on behalf of COEDF. Second, that the Captain's letter which asserted that the appellant had been involved in recruitment and the arrangement of secret meetings for the COEDF was implausible; no material corroborating the appellant's account having been produced where such would be expected to be available from COEDF's offices in London had the appellant's level of involvement been as described by the Captain. Third, there was no evidence of any interest in the appellant from the authorities in Ethiopia since the alleged search of his parents' home in September 1993, and as the appellant was in regular contact with his sister in Ethiopia, evidence of such interest could have been expected to be known about it had it existed. Fourth, COEDF is a violent organisation, and if the appellant had any significant level of involvement in it, he would have been expected to know this, whereas in fact he denied it in evidence. Fifth, that there was evidence that those suspected of being involved with either EPRP or COEDF had been released from detention.
The sixth reason was expressed by the special adjudicator as follows:
"In cross-examination, having accepted that COEDF is a coalition of political parties, asked to identify his party the appellant identified this to be the civic forum and asked to identify the Captain's party he identified if I may significantly (sic) this to be the EPRF. It is in the public domain EPRF to be (sic) the Ethiopian Peoples Revolutionary Front. I find it significant because EPRF is unlikely to be associated with COEDF as EPRF is a popular Marxist group known to support the independence movement in Ethiopia. If this had been the Captain's party, I find it unlikely that the Captain would have associated himself with CODEF (sic) which advocates the unity of Ethiopia as their objectives. While I accept the appellant may well have been known to the Captain, I give no credence to the Captain's letter which describes the appellant to have exhilarated (sic) the parties underground movement by recruiting trusted individuals and to have organised secret meetings."
That regrettably slipshod manner of expression was unfortunately typical of the entire determination and itself formed one of the two main bases successively of appeal and challenge below. The other main basis was that the special adjudicator was guilty of procedural impropriety for having failed to put the appellant on notice that he was proposing to rely on the evidence that the Captain was a member of a party unlikely to associate with COEDF as evidence which significantly damaged the appellant's credibility.
The IAT's Refusal of Leave to Appeal
As to the first of those two points, the slipshod form of determination, the IAT said this:
"The determination...
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