R v. Secretary of State for the Home Department, Ex parte Bazilepo

R v SECRETARY OF STATE FOR THE HOME DEPARTMENT ex parte BAZILEPO

Queen's Bench Division

[1993] Imm AR 53

Hearing Date: 25 August 1992

25 August 1992

Index Terms:

Political asylum -- illegal entrant -- refusal by Secretary of State to grant political asylum -- whether Secretary of State's decision was contrary to Wednesbury principles -- whether in the events which had happened the court should investigate the precedent facts.

Held:

The applicant seeking judicial review was a citizen of Zaire. He did not have leave to enter the United Kingdom. The Secretary of State had concluded he was an illegal entrant. The applicant had then claimed political asylum. After investigation the Secretary of State refused the application. The Secretary of State noted the different accounts the applicant had given of how he had arrived in the United Kingdom, and concluded that the applicant was of poor credibility. He also took adverse to the applicant his failure to give any good reason for not claiming asylum in Belgium whence allegedly he had come to the United Kingdom. Counsel argued that following Khawaja and Thirukumar the court should look at the material facts of the case. He also submitted that the Secretary of State's decision was Wednesbury unreasonable. Held 1. Following Bugdaycay it was not for the court to enquire into the precedent facts. Only where an applicant had or claimed to have a legitimate right to enter or remain in the United Kingdom was the approach in Khawaja appropriate. 2. The Secretary of State's decision could not be faulted on Wednesbury principles. There were ample grounds on which the Secretary of State could doubt the applicant's credibility.

Cases referred to in the Judgment:

Khawaja v Secretary of State for the Home Department [1984] AC 74: [1982] Imm AR 139. Bugdaycay and ors v Secretary of State for the Home Department [1987] 1 AC 514: [1987] Imm AR 250. Thirukumar and ors v Secretary of State for the Home Department [1989] Imm AR 270.

Counsel:

I Kumi for the applicant; N Garnham for the respondent PANEL: Otton J

Judgment One:

OTTON J: This is an application by Singa-Singa Mandundu Bazilepo for leave to apply for judicial review of a decision of the Secretary of State for the Home Department dated 28 July 1992 whereby he refused the applicant's application for asylum. The applicant is from Zaire. He is currently residing in Pentonville Prison. He arrived in April 1990 in circumstances which I shall explore later. Having arrived he made an application for political asylum. The procedure which is initiated on such an application was put into effect. He is French-speaking and the initial questionnaire was completed by him in the French language. It is, if I may say so, highly intelligible French and clearly displays a command of that tongue. But, it is said, there were possibilities for misunderstanding which arose quite genuinely on the part of the applicant which led him into difficulties with the authorities thereafter. In the event the Secretary of State issued a minded to refuse letter in May 1992 in which he explored the history given by the applicant and the grounds upon which he sought asylum. He concluded that he was not satisfied that the applicant had established a well-founded fear of persecution in Zaire under the terms of the 1951 United Nations Convention relating to the status of refugees. Consequently he was minded to conclude that the applicant did not qualify for asylum. The applicant, having studied the letter, was given a further opportunity to set out and deal with all the points which had obviously led the Secretary of State to reach his conclusion. On 16 June, a further interview took place at which the legal representative of the applicant was there alongside an interpreter, Mrs Congdon. The interview was conducted in French at the subject's request. The record runs to many pages. It is quite clear that the applicant was given a full opportunity to deal with any matter if he wished to, to remove any doubts and to reconcile any inconsistencies on which the Secretary of State had based his decision. Mr Kumi, in the course of what I can only describe as an impressive and well-prepared argument, says at the end of the day the Secretary of State has ignored or not given sufficient weight to the explanations that were given to reconcile the inconsistencies which apparently had occurred. But, he says, before that stage is reached, the inconsistencies are not of real substance when one compares what the applicant originally said with what he said subsequently and that in some instances the authorities had the wrong end of the stick of what the applicant was trying to say. It is not necessary for me to go through each of the reasons given by the Secretary of State or to deal in detail with the arguments put forward. I am persuaded by Mr Kumi that in one respect at least the powers that be did get the wrong end of the stick. One of the answers he gave concerned whether or not he was required to report to the authorities in Zaire as to his whereabouts. The answer he gave was clearly misunderstood by the Home Office official. It has been interpreted and recorded that he had to report at 15-month intervals. It is quite clear from the text that what the applicant tried to say was that throughout the 15-month period he was obliged to so inform the authorities. This is a totally different interpretation from that attributed to him by the Home Office official. There are one or two other matters which seem to me to be at least peripheral and of such little significance that one wonders why the Secretary of State took the answers into account when he was considering the credibility of the applicant. For example, it seems to me to be of little consequence whether he was arrested on one or two occasions or whether he took part in a demonstration arising out of the events in Romania on the deposition of the late President Ceausescu. Having said that it is not for this court to question the reasoning process of the Secretary of State. The first question which arises is whether this court, on an application of this nature is entitled to look at the basis upon which the Secretary of State reached his decision. Mr Kumi in his submissions relied heavily upon the well-known authorities of R v Secretary of State for the Home Department ex parte Khawaja [1984] 1 AC 74 and R v Secretary of State for the Home Department ex parte Thirukumar [1989] Imm AR 270 which clearly state that in appropriate circumstances the court should look at the basis of the decision making process. I am satisfied that that line of authority is not open to Mr Kumi in this particular case. It was clearly established in the subsequent case of R v Secretary of State for the Home Department ex parte Bugdaycay [1987] 1 AC 514 and indeed referred to in Khawaja that such a situation only arises where the applicant has or claims to have a legitimate right to enter this country or to remain here in which case the heavy burden of proof comes into operation if the respondent seeks to show that the applicant is an illegal entrant. Here there can be no doubt whatsoever that the applicant has no right to enter or to remain and that he is an illegal entrant. Consequently I accept the prime submission of Mr Garnham that this court cannot explore the basis upon which the decision was reached. The only line of attack which is open to Mr Kumi is to seek to impugn the Secretary of State's decision on the well-known ground of Wednesbury unreasonableness. He has to show that there is a prima facie case of irrationality in the decision itself or that it was improperly arrived at. There can be no doubt that no criticism can be made of the procedure which was adopted in this case. The applicant was given every opportunity to state his case and he was not deprived of any right of explanation. Thus one is left with the reasoning process of the Secretary of State and the manner in which he reached his decision. In the minded to refuse letter he sets out a series of grounds upon which he doubts the credibility of the applicant. As I have already said one or two of those grounds now appear to be somewhat less convincing than they might have appeared to the Secretary of State at the time the decision was made. That is not the point. I have to look at the evidence overall and to determine whether there was evidence upon which the Secretary of State could reasonably have reached the decision that he did not accept the credibility of the applicant and whether there was evidence before him which allowed him to come to the conclusion that he was not satisfied that the applicant had established a well-founded fear of persecution. First and foremost, it seems to me, was the failure of the applicant to be frank about the manner in which he entered this country. When asked about it initially he said that he had come to the country by boat from Belgium having flown from Zaire. He subsequently changed that account and said that he flew from Brussels to Gatwick Airport. There can be no way of reconciling those two explanations; one must be true and one must be blatantly false. Therefore, on that ground alone, there was reasonable grounds for the Secretary of State to consider that the applicant's evidence was suspect. He was also asked to give an explanation as to why he had not claimed asylum in Belgium. Belgium is a signatory to the United Nations Convention relating to the status of refugees. The explanation which was given on 16 June was as follows: "I could not apply for asylum in Belgium because Belgium has direct relations and contact with Zaire. In Belgium there are many opponents to Mobotu and I may have encountered problems there." That explanation was considered by the Secretary of State and he said, in effect, that he did not accept it. That again was a matter of considerable importance to the Secretary of State and, he having rejected that explanation, there was again evidence upon which he could quite properly and reasonably come to the conclusion that he could not rely upon the credibility of the applicant. The blatant untruth and the rejected explanation on vital matters tarnished the application for political asylum. At the end of the day the burden of proof is upon the applicant to satisfy the Secretary of State that he has established a well-founded fear of persecution in Zaire and the applicant has failed to do so. That in my view was a decision that it was open to the Secretary of State to arrive at upon the evidence which was then before him. Notwithstanding the spirited application in argument advanced by Mr Kumi in his usual courteous and persuasive manner I must, with the utmost regret, dismiss this application.

DISPOSITION:

Application dismissed

SOLICITORS:

Iqbal & Co, London W2; Treasury Solicitor

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