R v Immigration appeal tribunal ex parte Mohammed Dauda (No 2)

JurisdictionEngland & Wales
Judgment Date18 July 1995
Date18 July 1995
CourtQueen's Bench Division
CO/3838/94

Queen's Bench Division

Buxton J

R
and
Immigration Appeal Tribunal ex parte Mohammed Dauda (No 2)*

Miss S Harrison for the applicant

R Jay for the respondent

Cases referred to in the judgment:

Council of the Civil Service Unions v Minister for the Civil ServiceELRUNK [1985] AC 374: [1984] 3 All ER 935.

R v Immigration Appeal Tribunal ex parte Arun Kumar [1986] Imm AR 446.

Political asylum refusal by Secretary of State appeal dismissed refusal of leave to appeal to the Tribunal criticism of adjudicator's findings on credibility proper approach by Tribunal and court whether any duty on Tribunal to reconsider adjudicator's factual findings assertion that adjudicator's reasoning defective whether if so that necessarily required intervention by the court. Asylum Appeals (Procedure) Rules 1993 r. 13.

The applicant for leave to move for judicial review was a citizen of Ghana. He had been refused political asylum by the Secretary of State: the appeal was dismissed by a special adjudicator: he was refused leave to appeal to the Tribunal.

Counsel criticised the adjudicator's adverse findings on the credibility of the applicant. Counsel also argued that the adjudicator's reasoning was defective, as was her approach to parts of the evidence.

Held

1. The findings on credibility could only be successfully attacked if they were shown to be irrational, which they were not. It would need something quite out of the ordinary for the Tribunal or the court to set aside or review the findings on credibility made by an adjudicator who had heard and seen the witness.

2. The Tribunal had no general duty to rehear or reconsider the factual conclusions of the adjudicator.

3. The adjudicator's reasons for her findings on credibility and for her conclusions on the evidential value of an expert's report were sufficient: likewise she had been entitled to conclude that some material parts of the applicant's evidence were not credible.

4. In any event merely because it was submitted that it was arguable that in some particular matter the reasoning was defective, was not necessarily a reason for the court to interfere: such want of reasoning had to amount to an error of law.

Buxton J: This is an application for leave to move for judicial review of a determination of the Immigration Appeal Tribunal where they refused Mr Dauda, who was an applicant for asylum, leave to appeal against the determination of the special adjudicator dismissing in turn the appeal that was before her against a refusal of the Secretary of State to grant Mr Dauda such asylum. A number of the facts are controverted and I shall have to return to the contested facts in due course. The basic background and the Secretary of State's reasons for the original refusal can be conveniently found at pages 2 to 3 of the special adjudicator's determination. I will summarise what the special adjudicator there found, her findings in that respect not in my view being in any way controverted.

Mr Dauda is a Ghanaian citizen. He was arrested by the British police on 13 May 1994 when he was attempting to board a flight to the United States of America. He had presented to the airline staff a Dutch passport in the name of Mr Owusu, a passport that was not his and to which he was not entitled. The airline staff, understandably being concerned about this matter, referred the case to the immigration authorities and Mr Dauda was interviewed by them. He maintained throughout that initial interview that he was in fact Mr Owusu, but he was unable to give any lawful reason why he should be present in or enter the United Kingdom.

Further inquiries were then made. On 17 May Mr Dauda told the immigration authorities that he was indeed Mr Mohammed Dauda and he then made his application for asylum. He said that on leaving Ghana he had spent two weeks in Togo and then gone to the Netherlands where he had spent a week before travelling to the United Kingdom. The Secretary of State considered that the timing and circumstances of the asylum claim raised serious doubts as to whether or not the fears of persecution upon which Mr Dauda based that application were genuine. The Secretary of State did not think that his actions in failing to claim asylum at the earliest moment were consistent with somebody who sought protection from persecution. The Secretary of State was of the opinion that the applicant, Mr Dauda, had no intention of claiming asylum in the United Kingdom until he had been arrested attempting to board the flight to the United States of America.

The applicant's case before the authorities and before this court was that he feared persecution in his status as a member of the Konkomba tribe in Ghana. There was, he said, tribal fighting of a serious nature between members of his tribe and members of the Nanumba tribe, and that his family had been burned to death on his family farm by members of that latter tribe. He did not contend that he was personally involved in political activities in Ghana or that he had been personally harassed by the authorities there. The case was argued on the ground that, as a member of the Konkomba tribe, Mr Dauda was permanently at risk of ethnic attack, and further that the government of Ghana had taken no steps to control the disorder and fighting that put him at risk. The Secretary of State took the view that he would not be at risk if he returned to Ghana and that, the evidence of the general conflict indicating that it was confined to the north of the country, there was no reason why the applicant would have to return to the part of Ghana where it was alleged ethnic disorder was present, unless he personally chose to do so. There were other aspects of the account given by Mr Dauda of his journey to the United Kingdom and of his coming into possession of the passport of Mr Owusu that the Secretary of State did not believe. For all those reasons asylum was refused to Mr Dauda.

He appealed against that decision to the special adjudicator. The special adjudicator held a hearing. At that hearing the applicant was the only witness, though he had the advantage of being represented by Miss Stephanie Harrison of counsel, who has continued to represent him with great care and attention before me. The special adjudicator found Mr Dauda not to be a credible witness. That finding and its implications are in issue in the applicant's case before me and therefore I have to return to it. Quite apart from Mr Dauda's personal testimony before the special...

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7 cases
  • Borissov v Secretary of State for the Home Department
    • United Kingdom
    • Court of Appeal (Civil Division)
    • March 20, 1996
    ...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......
  • R SERGEY MIRONENKO v IMMIGRATION APPEAL TRIBUNAL Secretary of State for the Home Department
    • United Kingdom
    • Queen's Bench Division (Administrative Court)
    • March 5, 2003
    ...was entitled to take the views that he did. Buxton J, as he then was, said in R v Immigration Appeal Tribunal ex parte Dauda no 2 [1995] Imm AR 600, at page 602 that: "It would need something quite out of the ordinary for the Immigration Appeal Tribunal or this court to set aside or review ......
  • R SELVARATNAM SWEENDRAN v Immigration Appeal Tribunal
    • United Kingdom
    • Queen's Bench Division (Administrative Court)
    • February 25, 2002
    ...J which would support my conclusion that leave had to be refused in this case. In R v Immigration Appeal Tribunal ex-parte Dauda (No.2) [1995] Imm AR 600 he said that: "It would need something quite out of the ordinary for the Immigration Appeal Tribunal or this court to set aside or to rev......
  • Warnakulasuriya
    • United Kingdom
    • Queen's Bench Division (Administrative Court)
    • May 21, 2001
    ...the claimant's evidence was not credible. This is yet a further renewed application where it is necessary to refer to ex parte Dauda [1995] Imm AR 600. The court should be very slow to interfere with an adjudicator's findings of credibility in the circumstances where she has had the benefit......
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