R v Immigration appeal tribunal ex parte Nalokweza
| Jurisdiction | England & Wales |
| Judgment Date | 25 November 1995 |
| Date | 25 November 1995 |
| Court | Queen's Bench Division |
Queen's Bench Division
Hidden J
R Scannell for the applicant
S Kovats for the respondent
Cases referred to in the judgment:
Rohima Bibi and ors v Entry Clearance Officer Dhaka [1986] Imm AR 103.
Mohammad Karim v Visa Officer Islamabad [1986] Imm AR 224.
Save Britain's Heritage v Number 1 Poultry LtdWLRUNK [1991] 1 WLR 153; [1991] 2 All ER 10.
R v Immigration Appeal Tribunal ex parte Omar Ali [1995] Imm AR 45.
Gnanavarathan and Norbet v A Special Adjudicator [1995] Imm AR 64.
R v Immigration Appeal Tribunal ex parte Mehmet Yazik [1995] Imm AR 98.
R v Secretary of State for the Home Department ex parte Kabuiku (unreported, QBD, 24 February 1995).
R v Secretary of State for the Home Department ex parte Bamra (unreported, QBD, 24 February 1995).
Adjudicator determining appeal remitted for hearing de novo first adjudicator had concluded appellant had been credible that finding not criticised by Tribunal in remitting case no oral evidence led before second adjudicator whether second adjudicator on analysis of evidence entitled to conclude appellant not credible whether bound by credibility findings of first adjudicator.
Appeal refusal of leave to appeal by Tribunal whether short form of reasons adequate.
The applicant seeking leave to move for judicial review was a citizen of Uganda. He had been refused asylum by the Secretary of State. He appealed. The special adjudicator heard evidence from the applicant: she concluded he had been credible as to his account of material past events. She allowed the appeal. The Secretary of State successfully appealed to the Tribunal on the ground that the adjudicator had not fully considered the likelihood of persecution in the future. The Tribunal saw no reason to disagree with the adjudicator's findings on credibility but remitted the case for hearing de novo. When the case went before the second adjudicator he heard no oral evidence. He carefully considered the evidence before him however and concluded that the applicant had not been truthful. He dismissed the appeal: the Tribunal refused leave to appeal.
In challenging that refusal of leave to appeal, counsel argued that it had not been open to the second adjudicator to make adverse findings on credibility; he was bound by the findings in that regard of the first adjudicator, the more so because of the Tribunal's comments. He further argued that the reasons given by the Tribunal for refusing leave to appeal had been inadequate.
Held
1. The Tribunal had remitted the case for hearing de novo. That meant that there was a fresh hearing and the second adjudicator could not be bound by any of the findings of the first adjudicator.
2. All the grounds put to the Tribunal were adequately covered in its short form of refusal.
Hidden J: In this application for judicial review the applicant seeks an order of certiorari to quash a decision of the Immigration Appeal Tribunal of 13 February of this year. That decision refused him leave to appeal against the dismissal by a special adjudicator of his appeal against the Secretary of State's refusal of his application for asylum on 1 December 1993.
The case is unusual in that it concerns an appeal to the Immigration Appeal Tribunal from the decision of a second special adjudicator, since a decision by an earlier special adjudicator in the applicant's favour had been successfully appealed by the Secretary of State to an Immigration Appeal Tribunal, which had in July 1994 remitted the matter to be heard de novo before a different adjudicator.
It is pertinent to point out that the decision of the first special adjudicator, Mrs Weinberg, had included favourable findings as to credibility on the part of the applicant, which the decision of the second adjudicator, Mr O'Brien Quinn, did not, a point which is central to the main argument before me.
Put simply Mr Scannell submits that it is incumbent on the second special adjudicator to take cognisance of the decision of the first adjudicator who had seen the applicant and had made positive findings on his credibility. By way of a second submission he says that on the facts of this case it was incumbent on the Tribunal to do more by way of reasoning than it did.
The applicant is a Ugandan national who arrived in the United Kingdom on 29 May 1993 and claimed asylum on arrival.
The Secretary of State, in a decision letter of 1 December 1993, refused that application. The applicant appealed that decision to the first special adjudicator, who, in a determination dated 6 May, found the applicant to be a credible witness and allowed the appeal on the basis that she was satisfied that he had demonstrated a reasonable degree of likelihood that he would be persecuted for a Convention reason if he were returned to Uganda.
On 19 May 1994 the Secretary of State appealed. On 24 May 1994 leave to appeal was granted. On 24 June 1994 the appeal was heard. On 8 July 1994 the appeal was allowed and the matter was remitted for a hearing de novo before an adjudicator other than Mrs Weinberg.
In allowing the appeal the Tribunal concluded that the adjudicator was entitled to believe the applicant and that it could not be argued that the belief in the applicant's story was contrary to other evidence. At the hearing on 17 January of this year before the special adjudicator, Mr O'Brien Quinn, the applicant did not give evidence. Later in January the appeal was dismissed by the special adjudicator, who made trenchant adverse credibility findings as a result of a close scrutiny of what the applicant had stated at the previous hearing and at interview. In February 1995 the applicant sought leave to appeal and on 13 February the Tribunal dismissed that application. That is the history of these proceedings until now.
It is noteworthy that the Secretary of State's decision letter at page 34 of the bundle came to a conclusion on the basis of what the applicant had said in his May 1993 interview about spending three months in Kenya whereas his passport and air ticket only showed he was in transit and secondly, the fact that the applicant was unsure and unclear of the date of his father's arrest and death. The respondent considered that your account of your circumstances generally lacks credibility.
On the other hand, the first special adjudicator on appeal from that decision in her determination and reasons found the appellant a credible witness, a quiet somewhat bewildered man who only at one point when after having described now a lieutenant had helped him to escape he broke down. She also found that in giving replies in response to detailed questions of how he got through the airport and on to the 'plane, there was no hesitation in his replies. She said that having considered the totality of the evidence before me and having found the appellant credible I find the authorities could well have wished to question the appellant bearing in mind the activities of his father and the fact that he had worked in the shop with his father.
She concluded that she was satisfied that the appellant had demonstrated a reasonable degree of likelihood that he would be persecuted for a Convention reason if he was returned to Uganda and she was satisfied that he had no knowledge of the help, if any, which the appellant's father was giving to rebel forces in Uganda.
The Immigration Appeal Tribunal, dealing with the application for leave to appeal from the first special adjudicator made by the respondent, found as to credibility that the adjudicator was entitled to believe the applicant and it cannot be argued that the belief in the applicant's story was contrary to other evidence before the adjudicator. Because the adjudicator found the applicant to be a credible witness, the Tribunal, therefore, approached the case on the basis that the applicant's evidence accurately reflect the facts that have occurred.
The issue for the Tribunal was whether the adjudicator, having found the applicant to have been treated as he said he was, then simply read the past into the future and found that there was a reasonable likelihood of persecution because of the treatment he had received in the past. The Tribunal's reason for remitting...
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