Secretary of State for the Home Department v BALASINGHAM MAHESHWARAN [CA (Civil), 14/02/2002]
| Jurisdiction | England & Wales |
| Judge | Lord Justice Schiemann |
| Judgment Date | 14 February 2002 |
| Neutral Citation | [2002] EWCA Civ 173 |
| Docket Number | Case No: C/2001/1631 |
| Court | Court of Appeal (Civil Division) |
| Date | 14 February 2002 |
[2002] EWCA Civ 173
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE ADMINISTRATIVE COURT
(Turner J.)
Royal Courts of Justice
Strand,
London, WC2A 2LL
Lord Justice Schiemann
Lord Justice Chadwick and
Sir Murray Stuart-Smith
Case No: C/2001/1631
Julie ANDERSON (instructed by Treasury Solicitor for the Appellant)
Michael MURPHY and Mark O'CONNOR (Instructed by Ranjit & Co Solicitors for the Respondent)
This is the Judgment of the court. This is an appeal from a Judgment of Turner J. who quashed determinations of an adjudicator and of the Immigration Appeal Tribunal. The case is concerned with fairness in proceedings before an adjudicator in an immigration appeal. We understand that there has been an increasing reliance by those acting for claimants in immigration appeals on some words uttered by that judge in the course of granting an application for permission to apply for judicial review in R v Immigration Appeal Tribunal ex parte Gunn (unreported 22.1.1998) :
"It is an elementary aspect of fairness that if a Court or Tribunal is to reject on the basis of lack of truth an allegation, then there should be a specific challenge in the first place and secondly, on a reasons basis, adequate reasons should be given in the face of that forensic challenge why it has or has not succeeded."
Relying in part on those words, it was and is submitted on behalf of the claimant in the present case that if the Home Secretary does not challenge an assertion of fact made by a claimant before an adjudicator and the adjudicator does not raise with the claimant doubts about the veracity of his assertion, the adjudicator is bound to accept that assertion as proved if not to do so may be material to his determination. In our Judgment that submission is far too broadly framed. Miss Julie Anderson, who appears on behalf of the Home Secretary asks this court to reject it as one to be rigidly applied to all situations. She is right to do so.
Those who make a claim for asylum must show that they are refugees. The burden of proof is on them. Whether or not a claimant is to be believed is frequently very important. He will assert very many facts in relation to events far away most of which no one before the adjudicator is in a position to corroborate or refute. Material is often adduced at the last minute without warning. From time to time the claimant or the Home Secretary are neither there nor represented and yet the adjudicator carries on with his task. He frequently has several cases listed in front of him on the same day. For one reason or another not every hearing will be effective. Adjudicators can not be expected to be alive to every possible nuance of a case before the oral hearing, if there is one, starts. Adjudicators in general will reserve their determinations for later delivery. They will ponder what has been said and what has not been said, both before the hearing and at the hearing. They will look carefully at the documents which have been produced. Points will sometimes assume a greater importance than they appeared to have before the hearing began or in its earlier stages. Adjudicators will in general rightly be cautious about intervening lest it be said that they have leaped into the forensic arena and lest an appearance of bias is given.
Undoubtedly a failure to put to a party to litigation a point which is decided against him can be grossly unfair and lead to injustice. He must have a proper opportunity to deal with the point. Adjudicators must bear this in mind. Where a point is expressly conceded by one party it will usually be unfair to decide the case against the other party on the basis that the concession was wrongly made, unless the tribunal indicates that it is minded to take that course. Cases can occur when fairness will require the reopening of an appeal because some point of significance – perhaps arising out of a post hearing decision of the higher courts – requires it. However, such cases will be rare.
Where much depends on the credibility of a party and when that party makes several inconsistent statements which are before the decision maker, that party manifestly has a forensic problem. Some will choose to confront the inconsistencies straight on and make evidential or forensic submissions on them. Others will hope that 'least said, soonest mended' and consider that forensic concentration on the point will only make matters worse and that it would be better to try and switch the tribunal's attention to some other aspect of the case. Undoubtedly it is open to the tribunal expressly to put a particular inconsistency to a witness because it considers that the witness may not be alerted to the point or because it fears that it may have perceived something as inconsistent with an earlier answer which in truth is not inconsistent. Fairness may in some circumstances require this to be done but this will not be the usual case. Usually the tribunal, particularly if the party is represented, will remain silent and see how the case unfolds.
The requirements of fairness are very much conditioned by the facts of each case. This has been stressed in innumerable decisions – see the many citations to this effect in Rees v Crane [1994] 2 A.C.173. We have no doubt that the claimant's submission is framed in terms which are far too wide and in words which are not to be rigidly applied to every situation. Whether a particular course is consistent with fairness is essentially an intuitive Judgment which is to be made in the light of all the circumstances of a particular case – see R v Secretary of State for the Home Department, ex parte Doody [1994] 1 A.C. 531per Lord Mustill at p.560D. We turn therefore to the facts of the present case.
Mr Maheshwaran applied for asylum. This was refused by the Home Secretary. Mr Maheshwaran's appeal to the Adjudicator was dismissed. The Immigration Appeal Tribunal refused Mr Maheshwaran leave to appeal. He challenged the legality of that refusal by way of judicial review. That challenge succeeded before Turner J. Now the Home Secretary appeals to this Court.
There is a preliminary procedural point which is not contentious. Although Mr Maheshwaran's application for judicial review had as its respondent the Home Secretary and sought relief both in respect of the determination of the Adjudicator and the determination of the Tribunal, the relief sought should have been solely in respect of the determination of the Tribunal and that should have been the respondent. The Order of Turner J. purports to quash the Adjudicator's determination. Normally the only determination which is subject to being quashed in a case such as this is the determination of the Tribunal. Sometimes cases occur where all parties agree that the determination of the Adjudicator should also be quashed. In the absence of such an agreement it will normally be right to quash the decision of the Tribunal and remit the case to it thus leaving the future conduct of the case in the hands of the Tribunal.
That however is only a formal point. As a matter of substance what we are primarily concerned with is the quality of the determination of the Adjudicator. Turner J. regarded this as falling below the proper standard required by law. He did so on two grounds. The first relates to the approach adopted by the Adjudicator to evidence adduced by the appellant in relation to his sister. The second related to the logical coherence of the Adjudicator's determination and the quality of his reasoning.
The determination of the Adjudicator follows the normal format. Paragraphs 1 – 7 set out the details of Mr Maheshwaran's arrival in the United Kingdom, his interview in relation to his asylum application, the Home Secretary's refusal letter, the Notice of Appeal and the material which was before the Adjudicator. Paragraphs 8 – 12 deal with the claimant's oral evidence, paragraphs 13 and 14 with cross-examination, paragraph 15 with re-examination, paragraphs 16 with questions by the Adjudicator and paragraphs 17 and 18 with submissions on behalf of the Home Secretary and on behalf of the claimant respectively. Thereafter follows the determination of the Adjudicator. In paragraph 19 the Adjudicator correctly instructs himself in relation to the burden and standard of proof. His conclusions are contained in the remaining paragraphs of his determination of which we shall now set out the parts material to this appeal. We have supplied various emphases for ease of reference later in this Judgment.
"[20] Credibility is a key issue in this appeal. In assessing the appellant's evidence I have taken into account his obvious frightened state and the report by his GP that the appellant suffers from a lack of self-confidence as well as flash-backs and nightmares…. Whilst it is correct that the appellant did at the beginning of his asylum interview state that he sometimes made mistakes because his memory was poor, I am still not able to accept that this in itself would explain all the serious weaknesses in his evidence. While I am able to accept certain parts of his account as being reasonably likely to have occurred, I am satisfied that the appellant has substantially embellished and exaggerated his claim so as to justify his decision to leave his village near Mullaittivu even though he was not at that time under any particular pressure to do so. I shall explain my reasons for reaching that conclusion in the following paragraphs.
The appellant also claimed that in [1996] his sister had joined the LTTE....
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