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

IN THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

CROWN OFFICE LIST

3rd March 1999

Before:

MR JUSTICE RICHARDS

REGINA - v -SECRETARY OF STATE FOR THE HOME DEPARTMENT EX PARTE SOURBAH

MR A RIZA QC and MR S MUSTAFA (instructed by Raja & Co, London SW1 7BA) appeared on behalf of the Appellant

MR M SHAW (instructed by Treasury Solicitors) appeared on behalf of the Respondent

JUDGMENT

MR JUSTICE RICHARDS:

The applicant is a citizen of Sierra Leone who arrived in the United Kingdom in September 1994. He was interviewed and claimed asylum. He was subsequently interviewed a second time.

In January 1996 the Secretary of State refused his claim for asylum. The applicant appealed to the special adjudicator who dismissed his appeal in a determination dated 15th July 1997. The applicant then applied for leave to appeal to the Immigration Appeal Tribunal which refused leave in a determination notified on 5th September 1997. Leave was subsequently granted to apply for judicial review and it is the substantive hearing of those proceedings that is before me today.

In the Form 86A the applicant challenges three decisions: those of the Secretary of State, the special adjudicator and the Immigration Appeal Tribunal. The matter has been pursued before me by Mr Riza, QC, on behalf of the applicant only in relation to the decision of the IAT. In my view that is an entirely correct approach on his part. The question with which this court should be concerned on an application of the present kind is whether the decision of the IAT to refuse leave to appeal was a lawful decision. Given the existence of the immigration appellate structure, it is not appropriate to entertain separate challenges to prior decisions. That applies with particular force to the decision of the Secretary of State which has been the subject of a full appeal on the merits to the special adjudicator. The point is of less significance with regard to the special adjudicator's own decision since the court must inevitably scrutinise that decision in deciding whether the IAT's refusal of leave to appeal was lawful. The principle remains the same, however. The court is or should be concerned not with an independent challenge to the special adjudicator's decision but only with a challenge to the refusal of leave to appeal from that decision. If the court takes the view that the challenge to the refusal of leave to appeal is unfounded, that should be an end of the matter so far as judicial review is concerned. This is merely an application of the general principle that relief by way of judicial review will not be afforded in circumstances where there exists an appropriate alternative remedy. In this case the normal remedy is by way of appeal subject to any requirement as to leave.

Returning to the details of the present case, the basis of the applicant's claim to asylum was that his parents had been killed in a rebel attack (though Mr Riza suggested that that was not a material element) and that his uncle, a former member of the APC government, had been arrested by government soldiers during a second attack, had been accused of associating with the rebels and had been tortured and killed. The applicant said that if the government troops found him they would kill him.

The Secretary of State dealt with the matter shortly in his decision. He concluded that the applicant would be of no interest to the NPRC government simply on account of his uncle's alleged activities. He also considered that a state of civil unrest in Sierra Leone did not give a claim for asylum under the Convention. Moreover, he considered that the fact that the applicant remained in Sierra Leone for nearly two years after the alleged events and was able to obtain a passport immediately prior to his departure inevitably cast doubt on the credibility of his account and his claim to be in genuine need of international protection. He considered that the applicant's reasons for wishing to remain in the United Kingdom were social and economic rather than political.

When the matter came before the special adjudicator she examined the factual background to the case and set out the terms of the Secretary of State's decision letter. She referred to the evidence before her; the applicant himself had given evidence. She summarised the submissions that had been made which included, in the submissions of both parties, reference to Foreign Office reports as to the situation in Sierra Leone. She then set out the burden and standard of proof before turning to her findings. Under the heading of "Credibility" she said this:

"I did not find the appellant to be a honest and credible witness for the following reasons, in addition to the adverse impression I formed of his veracity when giving evidence before me."

She then set out 14 subparagraphs containing the reasons to which she had referred. Paragraph (xiv) itself reads:

"Each of the above points could theoretically be explained, but I have to look at the evidence overall and having heard the appellant, consider its weight and credibility. The reality is that the totality of the inconsistencies and improbabilities and the plainly false, is such, that I find that no reliance can be placed upon what the appellant has said either at interview or before me."

She went on in the next paragraph to state:

"In the result, I find that even applying the very low standard of proof applicable in asylum cases, the applicant has failed to show a serious possibility that what he has stated has occurred, did in fact occur or that he is genuinely afraid for his life or liberty if he returns to Sierra Leone or that there is a serious possibility that the appellant will be persecuted for a Convention reason, if he returns there. In my judgment the applicant came here in 1994 aged 24, simply as a young single man in order to better his circumstances."

In refusing leave to appeal from that decision the IAT stated, amongst other things:

"The special adjudicator received oral evidence and assessed its credibility: the tribunal will not lightly interfere with findings of fact in such cases. The special adjudicator did not regard the applicant as honest and credible: her reasons for that conclusion are set out in detail on pages 6, 7 and 8 and 9 of her determination.

The special adjudicator appears to have considered all the evidence before her, properly directing herself as to the correct standard of proof. She decided the case on the evidence as a whole and the decision is properly supported by that evidence. There is no misdirection in law. In view of the special adjudicator's findings on the applicant's credibility, an appeal to the tribunal would have no prospect of success."

Mr Riza advances a number of grounds of challenge to the IAT's refusal of leave. His submissions, as embodied in a skeleton argument submitted to the court only at the outset of the hearing, depart significantly from those set out in the skeleton argument previously settled by his junior. For reasons that I shall come to, however, I think that the essential issues engaged by this appeal are much the same as those originally advanced by the applicant and more importantly that the essential answer to them is the same, namely the adverse findings on credibility reached by the special adjudicator.

The way in which Mr Riza puts the matter, first, is by reference to the objective situation in Sierra Leone. He states in graphic language that the state of affairs is terrible. He refers to butchery and other outrages. He says that the Secretary of State is not currently removing people to Sierra Leone because of that state of affairs. He suggests that there is inherent in that an acceptance by the Secretary of State that such people have a well-founded fear as to their safety. Looking at the general situation, he submits that plainly there is a well-founded fear for the safety of anybody, such as the applicant, who might return to Sierra Leone.

He goes on to say that where there is well-founded fear of that kind the subjective element in the dual subjective/objective test required in considering the application of the Convention pales into insignificance. If the objective situation is such as to make likely death, injury or serious loss of liberty, the question of the subjective fear of the applicant is virtually insignificant. He refers to a passage in a tribunal decision, Muamba, which is conveniently set out in paragraph 11 of the special adjudicator's decision in the present case. The passage in question reads:

"We add only that it may well be that an adjudicator may dismiss an appeal simply on the ground that any fear which may exist is not well-founded. Conversely, it may well be that where a fear is well-founded it would be the rare case in which the fear was not thought to be held. Nevertheless, it is clear that there are subjective and objective elements to each asylum claim."

The central sentence in that passage indicates that where there are good reasons why a fear may exist it is unlikely that the subjective fear will be found not to exist. It is, I think, a somewhat different point from the suggestion by Mr Riza that the question of subjective fear pales into insignificance. Nonetheless, the broad way in which he puts it is that, having regard to the objective situation, one should be at the very least slow to reject an existence of a subjective fear.

Pausing there, it seems to me that the first difficulty about the approach that Mr Riza has adopted in those introductory submissions is that it fails adequately to distinguish between broad questions of danger and the specific question, relevant to a case of the present kind, of the application of the Convention; that is to say, the question is not simply whether there is a fear or a well-founded fear, but whether there is a well-founded fear of persecution for a Convention reason.

As Mr Shaw submitted on behalf of the Secretary of State, the difficult situation in Sierra Leone is a matter separate from the question of refugee status. The existence of civil unrest or civil war in a country does not in itself qualify those who have left the country, such as the applicant, for refugee status. An obvious example of that is the case of Adan v The Secretary of State for the Home Department [1998] 2 WLR page 702. In that case it was held by the House of Lords that the applicant did not qualify for refugee status, notwithstanding the atrocities committed in the course of civil war in Somalia. Moreover, that was a case where the applicant had been believed as to his account of events. The case shows clearly that the existence of civil unrest and even atrocities in Sierra Leone cannot in itself establish the existence of refugee status on the part of an applicant. An applicant must still show that he has a well-founded fear of persecution for a Convention reason. Moreover, the fact that the Secretary of State is not presently removing people to Sierra Leone does not constitute an acceptance on his part that the conditions for refugee status are in any way met in relation to those people. The reason for not removing people at present is essentially a compassionate reason, having regard to the situation in the country, and does not entail any acceptance of refugee status on the part of such people.

So, when one is examining whether a person from a country such as Sierra Leone, in which there exists civil unrest, qualifies for protection under the Convention, one has to come back to the essential Convention tests. In the present case the applicant failed at the first hurdle, that of subjective fear. As I have indicated, the special adjudicator made a clear and strong finding rejecting the applicant's claim to have a fear of persecution on a convention ground.

That finding as to the absence of a subjective fear is something that at the end of the day Mr Riza, in my judgment, has failed to grapple adequately with. The applicant has not begun to show that the findings on credibility by the special adjudicator were in any way wrong in law or were unreasonable. There was an ample factual basis for those findings which are impregnable. I shall come in a moment to a separate contention that the special adjudicator failed to have adequate regard to the situation in the country and, I should say, a contention that she failed to direct herself properly as to the significance of lies or exaggeration. It suffices at this point, however, to indicate that I reject the submissions advanced under those heads and that one is left in this case with clear and strong adverse findings on credibility which ultimately are fatal to the applicant's claim.

Moving on, Mr Riza submits that the IAT failed properly to fulfil its function "as an extension of the decision making process", see Ravinchandran v Secretary of State for the Home Department [1996] Imm AR 97 at 112. It is said that in a case where, even if the special adjudicator's decision cannot itself be successfully impugned, there is, nonetheless, material before the IAT suggesting a change in circumstances and casting doubt on the conclusions reached by the special adjudicator, then the IAT should grant leave to appeal and examine the substance of those matters.

It is submitted that in the present case the tribunal's attention was drawn to the state of political disorder in Sierra Leone and, it is said, to the worsening state of such political disorder. The tribunal, however, did not apply its mind to that question and that omission renders the refusal of leave to appeal unlawful. There were matters before the tribunal that called for the grant of leave in order that the developing situation and its implications for the special adjudicator's conclusions could be properly examined.

As to that Mr Shaw rightly draws attention, first, to the absence of a sound factual premise to the contention. The ground of appeal to the IAT referred in general terms to the tribunal's power to grant leave on the basis of changing circumstances in a country making it unsafe for an appellant to return, but under the specific grounds of challenge, in paragraph 7 of the grounds of appeal, what is said is that the special adjudicator was wrong to agree with the Secretary of State that there was no serious possibility of persecution for a Convention reason if the applicant returned to Sierra Leone:

"It is respectfully submitted Sierra Leone is still experiencing political disorder and the country is said to be in a grip of terror and the applicant will certainly be inviting death if he returns to Sierra Leone."

I do not find in that passage or elsewhere in the grounds any assertion that there had been a material change in the situation in Sierra Leone since the date of the special adjudicator's decision, or any indication that the tribunal was being invited as a separate exercise to consider whether, even if the special adjudicator's decision was correct, nonetheless matters had changed to a point where doubt was cast upon the continuing validity of her conclusions. In those circumstances, it seems to me that it was not incumbent on the tribunal to deal specifically with that point.

So far as concerns what was before the special adjudicator herself (and the ground of appeal that I have cited does refer obliquely to what was before the adjudicator) the tribunal have indicated in their decision that she appeared to have considered all the evidence before her and to have directed herself properly. It is plain, in my judgment, that the special adjudicator did indeed consider not just the subjective question of credibility but also the objective evidence as to the state of affairs in Sierra Leone. As I have already mentioned, express reference is made to Foreign Office reports on that issue. Such references are made in the context of the parties' submissions, but there is no reason to doubt that the special adjudicator had them in mind in relation to her conclusions. In the event it was not necessary for her to deal further with them in her conclusions because of her very clear adverse finding on credibility.

The material in question cannot avail the applicant in any event since it does not support the contention as to the existence of persecution in Sierra Leone. Indeed a Foreign Office report that was before the special adjudicator, dated 9th October 1996, stated in terms, "there appears to be no evidence of persecution as defined by the 1951 United Nations Convention". Certainly there was nothing in that material capable of undermining the conclusions reached by the special adjudicator with regard to the applicant. In my judgment the way in which this matter was dealt with by the IAT in refusing leave to appeal cannot be faulted.

That really covers a further separate submission made by Mr Riza, to the effect that the special adjudicator had failed to evaluate the applicant's credibility in the light of the objective circumstances in Sierra Leone. I detect no such failure in her reasoning and, as I have said, I see nothing in the material as to the objective circumstances that could undermine the specific conclusions that she had reached on the question of credibility.

There is, however, a further point that is taken in relation to the special adjudicator's approach to credibility. It is submitted that she failed properly to direct herself that people lie, exaggerate and embellish for many reasons, including for the purpose of bolstering a genuine case. What is said by Mr Riza is that there ought to be an express self-direction, equivalent to the Lucas direction given to juries in the course of criminal trials, and that in the absence of such a self-direction the conclusions reached with regard to credibility are flawed.

Reference is also made to a tribunal decision called Chiver, the relevant passage of which is cited in paragraph 12.23 of McDonald's Immigration Law and Practice. It reads:

"It is perfectly possible for an adjudicator to believe that a witness is not telling the truth about some matters, has exaggerated the story to make his case better, or is simply uncertain about matters, but still to be persuaded that the centre piece of the story stands."

In the present case it is noteworthy that there was no suggestion on behalf of the applicant before the special adjudicator that if he was found to be lying or embellishing his account in certain respects, nonetheless the centrepiece of the story should be believed. The matter was presented to the special adjudicator in terms of a submission that his story should be believed in its entirety. In any event it is plain that the special adjudicator's findings were the result of a wholesale, though balanced, rejection of the applicant's credibility. Paragraph 12(xiv) which I have already read indicates that she had regard to the possibility that particular matters could be explained away, but that it was the combined effect of the "totality of the inconsistencies and improbabilities and the plainly false" that led to the conclusion that no reliance could be placed upon the applicant's evidence.

In those circumstances nothing could possibly turn on the absence of an express self-direction of the kind that Mr Riza says should have been included in the decision. It is clear that the special adjudicator was taking a proper overall view of the applicant's evidence.

Finally, Mr Riza has submitted that the case of Adan, which I have already cited, does not adversely affect the applicant's position and indeed can, in a sense, be relied upon. The point is made that in Adan it was held that in a case of civil war an applicant, in order to establish refugee status, must show fear of persecution for Convention reasons over and above the ordinary risks of clan warfare, or at least over the ordinary risks of whatever civil unrest there existed in the country.

In the present case Mr Riza submits there was arguably civil war. It would be for the tribunal to decide on giving leave whether there was in fact a civil war. Further, he submits by reference to the detailed matters put forward by the applicant in his interviews, in particular, that if the applicant were to return to Sierra Leone he would at least arguably be liable to be singled out because of his perceived association with his deceased uncle and his deceased uncle's politics. Thus there would be an arguable differential impact upon him such as to justify a finding that he was a refugee in accordance with the principles laid down in Adan.

That submission fails on the basis of the special adjudicator's findings of fact. The matters relied upon by Mr Riza as arguably rendering the applicant liable to be singled out are matters which were rejected by the special adjudicator as part of her overall rejection of the applicant's credibility. In the light of what I have said as to the absence of any proper basis of challenge to her findings on credibility the submissions made by reference to Adan must, in my view, fail.

I believe that I have covered all of the principal matters that have been raised in submissions before me. If not I apologise to Mr Riza, but it suffices to indicate that for the reasons that I have given, and in particular my view that the findings on credibility cannot be impugned and are ultimately decisive of the case, that this application must be dismissed.

MR SHAW:

My Lord, I understand that the applicant is legally aided. There is, therefore, no application for costs.

MR RIZA:

My Lord, may I have legal aid taxation?

MR JUSTICE RICHARDS:

You may.

MR RIZA:

My Lord, I have considered this and I have obviously had to make up my mind now, although I anticipated the possible outcome. My Lord, may I have leave to appeal to the Court of Appeal on the proper approach of the IAT in a case where the situation is in a state of flux? I know that your Lordship has found against me factually, but I am applying for leave to appeal on the basis of the objective situation as it appeared even to the adjudicator on account of the submissions that I made to your Lordship on the approach of the well-foundedness, independently of whether it was for a convention reason or whatever.

My Lord, that, in my submission, at this stage seems to be a point which perhaps the Court of Appeal ought to consider. Certainly it would be helpful for the tribunal to know that in a it. They are aware they have the power but they do not seem to be applying it when situation where it changes that they have this power because I do not think they are aware of they write their determinations. But, my Lord, I would like leave to appeal to argue that point further; that is to say a free standing, well-founded fear of persecution on credibility and matters of that kind.

MR JUSTICE RICHARDS:

Mr Riza, I am not going to give you leave to appeal. As you have indicated, I have found against you on the facts and fairly comprehensively so. This is not a case, in my judgment, which is appropriate for the Court of Appeal.