Michael Mario v Secretary of state for the home department
| Jurisdiction | England & Wales |
| Judgment Date | 06 March 1998 |
| Date | 06 March 1998 |
| Court | Immigration Appeals Tribunal |
Immigration Appeal Tribunal
His Honour Judge D S Pearl (President) Miss P G Liverman JP, Mrs M Simon
P Jorro of the Refugee Legal Centre for the appellant
I Richards for the respondent
Cases referred to in the determination:
Suat Bakis v Secretary of State for the Home Department [1996] Imm AR 487
Goose v William Sandford & Co (1998) The Times, 19 February
Asylum — appeal — remitted by Tribunal for hearing de novo — no challenge to accuracy of evidence taken by first adjudicator — no oral evidence taken by second adjudicator — whether appropriate for case to have been remitted — whether Tribunal should have heard substantive appeal — the criteria for remitting cases for hearing de novo — the need for a fair and proper hearing at first instance. Asylum Appeals (Procedure) Rules 1996 r. 17.
The appellant was a citizen of the Lebanon. He was refused asylum by the Secretary of State. He appealed: his appeal was allowed by a special adjudicator. The Secretary of State appealed to the Tribunal, essentially on the basis that the adjudicator had erred in his assessment of the evidence: the accuracy of the evidence, as recorded, was not challenged. The Tribunal remitted the case for hearing de novo.
The second adjudicator heard no oral evidence, the parties being content to proceed on the basis of the evidence taken by the first adjudicator. She found the appellant not to be credible. The appellant appealed to the Tribunal.
The Tribunal considered the circumstances in which it was appropriate to remit a case for a hearing de novo.
Held:
1. There was a presumption in the 1996 rules that the Tribunal would itself hear cases rather than remit them for hearing de novo.
2. Remittal was only justified where one party had not had a fair and proper hearing at first instance.
3. That had not occurred in the present case: there was dispute over the interpretation of evidence, which the Tribunal was in as good a position as an adjudicator to resolve.
Determination
The appellant is a citizen of Lebanon. The history of this case is extremely unfortunate, and it is important to set out the circumstances in some detail. The appellant arrived in the United Kingdom on 6 May 1993 and he was granted leave to enter for six months as a visitor. On 6 July 1993 he applied for asylum. The basis of his claim was that he is a Maronite Christian who supports General Aoun. He stated in his interview that he was involved in a flyposting and leafleting activity in Chekka in April 1993, and that as a result of this activity, he was at risk of being arrested by the Syrian army.
His claim for asylum was refused by the Secretary of State by notice dated 12 January 1995. The refusal letter which is dated 5 January 1995 sets out the reasons in some detail. This reads as follows:
‘You have applied for asylum in the United Kingdom on the grounds that you have a well founded fear of persecution in Lebanon for reasons of race, religion, nationality, membership of a particular social group or political opinion.
The basis of your claim is that you were a Maronite Christian and a supporter of General Aoun. Furthermore, you were wanted by the Syrian Army because of your involvement in a flyposting and leafleting incident.
You claimed that one night between 10 and 15 April 1993 you and 9 others were distributing leaflets and flyposting. These leaflets had been obtained from members of the Lebanese Army by unnamed General Aoun supporters. The following day members of the Syrian Army became aware of these posters and closed all the exits to the town. A curfew was also imposed. Members of the Syrian Army began looking for those who had been involved in the incident and you claimed that all the youths of the town were detained for questioning. You claimed that none of those who were arrested returned. You claimed that you saw the army personnel crowding the area and taking youths for questioning and as you feared these people you decided to take the precaution of leaving your home. You went to the home of an old lady who lived opposite and it was from her house that you saw the Syrian Army personnel knock on your door. You then claim to have received a phone call at the old lady's house from an old man who had seen you go into the old lady's house and therefore knew to ring you there warning you to leave immediately as you were being looked for. Though the old man who had warned you had not himself been taken in for questioning, he rented a room to a young person and the Syrian Army personnel had arrested that person whilst asking about you.
You claimed that the Syrian Army knew your name and address through their intelligence sources however you were not a member of any political or religious organisation nor have you ever been harassed or ill-treated in the Lebanon by the authorities. The Secretary of State therefore considers it highly unlikely that the Syrian Army would have had any interest in you and is of the opinion that this aspect of your claim is an invention.
You then planned to leave the area as you knew your life was going to be hell. You then went to Beirut without returning to your home. You did however have in your possession at the time your passport which was issued to you in 1992.
You claimed that there was a list which included the names of the people who had taken part in the leafleting/flyposting incident. The Syrian Army had...
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