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

IN THE SUPREME COURT OF JUDICATURE

IN THE COURT OF APPEAL (CIVIL DIVISION)

ON APPEAL FROM THE QUEEN'S BENCH DIVISION

(CROWN OFFICE LIST)

(MR JUSTICE JOWITT)

Royal Courts of Justice

Strand

London WC2

Monday 1st December 1998

Before: LORD JUSTICE MORRITT, LORD JUSTICE ALDOUS, LORD JUSTICE HUTCHISON

Regina- v -The Secretary of State for the Home Department ex parte Said Muhammed Hilal

MS N ROGERS (Instructed by Sen & Co, 472 High Street, Wembley, Middlesex, HA9 7AY) appeared on behalf of the Appellant

MR A McCULLOUGH (Instructed by The Treasury Solicitors, Queen Anne's Chambers, 2F Broadway, London SW1H 9JS) appeared on behalf of the Respondent

JUDGMENT

(As approved by the Court)

LORD JUSTICE ALDOUS:

The applicant was born in Tanzania in 1968. He travelled to this country on 9th February 1995. He claimed asylum on arrival on the basis that he had been a member of the Civic United Front, and as such was likely to be executed if he returned. By a letter dated 29th June 1995 the Secretary of State notified the applicant of his decision to refuse him asylum. The applicant appealed. His appeal was heard by a special adjudicator, Mr Yelloly, in November 1996. He dismissed the appeal. The applicant applied for leave to appeal and that was refused by the immigration appeal tribunal on 10th June 1997. There was no application for judicial review of that decision.

In January and April 1997 the applicant sent further evidence to the Secretary of State which the applicant believed supported his application for asylum. He requested that the documents should be referred to the special adjudicator under section 21 of the Immigration Act 1971. In letters sent in 1998, culminating in a letter of 23rd April 1998, the Secretary of State refused to refer the matter to the special adjudicator. The letter of 23rd April ended in this way:

"The Secretary of State doubts the authenticity of the documents that you have submitted but points out that, even if the aforementioned medical certificate and police summons were genuine, and even if your client's account was true, there is still no likelihood of his claim succeeding as there is no reason why he could not return to live safely and without harassment on mainland Tanzania.

In the light of the above, the Secretary of State does not believe that your client's case would benefit from further consideration by the Adjudicator or Tribunal under Section 21 (which consideration would be advisory in status in any event) and does not propose to make such a reference."

On 18th May 1998 the applicant sought judicial review of that decision in the letter of 23rd April, upon the ground that the Secretary of State was arguably wrong in law in not exercising the power given to him under section 21 and his decision was Wednesbury unreasonable. That application came before Jowitt J who on 1st July 1998 refused leave to move for judicial review. The applicant renews his application before this court.

Section 21 of the Immigration Act 1971 provides:

"Where in any case -

(a) an adjudicator has dismissed an appeal, and there has been no further appeal to the Appeal Tribunal, or the Tribunal has dismissed an appeal made to them in the first instance by virtue of section 15 above…the Secretary of State may at any time refer for consideration under this section any matter relating to the case which was not before the adjudicator or Tribunal."

The correct approach under that section was set out by Sir Thomas Bingham, Master of the Rolls, in Mustapha Khaldoun v The Secretary of State for the Home Department [1996] Imm AR 200 at 203:

"Miss Harrison reads that section [the Master of the Rolls had just read section 21] as meaning effectively this. If a special adjudicator has dismissed an appeal and material is put before the Secretary of State for his attention which might have affected the decision of the special adjudicator had it been before the special adjudicator at the time of his hearing, then the Secretary of State should, as a matter of legal obligation, refer the matter back to the special adjudicator. I have to say for my part that that seems to me a totally impermissible restriction of a discretion conferred by section 21(1) in broad terms, and I am fortified in reaching that conclusion by an analysis made of it by Judge J in R v Secretary of State for the Home Department, ex parte Bello, an unreported decision of 25 May 1995. In that case Judge J, having read the section said:

'The beneficial purpose of this provision is obvious and needs no elaboration. It means that notwithstanding that all the appropriate procedural steps have been exhausted, if fresh relevant material becomes available, the Secretary of State may refer material which was not before the adjudicator (or the Tribunal) for a report. However, the reference, if made, does not create or result in a second appeal. The adjudicator's obligation is to report his opinion on the fresh material if it is referred to him. The decision to accept or reject and the weight to be attached to the report remains with the Secretary of State.

The Secretary of State is not obliged to make any reference merely because fresh material becomes available. He is entitled not to do so and to evaluate the material for himself in each individual case, bearing in mind that the case being considered is an application for asylum with the grave potential consequences that can arise if an incorrect decision is reached.'

In other words, the Secretary of State asks himself under the section, 'Do I need the benefit of a report from the adjudicator before making a final decision in the light of this new material, or am I in a position, despite this new material, to form a reliable judgment of my own?' His decision on that question is not beyond the reach of judicial review, either if he fails to refer in a case where it is clear beyond argument that he should, or if he makes a decision in the light of that material which is unsustainable."

To enable the significance of the new evidence, which was submitted to the Secretary of State, to be appreciated, it is necessary to set out some of the background facts. The applicant lived on Zanzibar and he claimed to have become a member of the CUF in 1992. He said he had been arrested in August 1994 and detained until November of that year and was tortured. The special adjudicator did not believe the applicant. His reason was that the applicant had not mentioned his arrest and torture at his first interview, although he had had an opportunity to do so. The special adjudicator concluded that if the torture had actually occurred, then he would have said so at his first interview. Secondly, the applicant had said at the hearing that his brother had been arrested before him. The special adjudicator concluded that that was contrary to what he had previously said. The special adjudicator did not accept that the brother had been tortured and killed. Thirdly, the applicant had also given evidence that the authorities in Zanzibar had, as a result of opening a package that he had sent to his parents, sought to summons his parents as he had tarnished the good name of the government. The special adjudicator drew attention to the fact that the relevant documents had not been produced to support the applicant's evidence, and that clearly also affected his credibility.

The new evidence which has been produced has been supported by an affidavit stating that the documents are authentic. It would therefore be right to so assume. Firstly there is the document relating to the death of the applicant's brother. The hospital records show that he died of fever on 20th January 1995. They do not throw light upon the trouble that the applicant had in dealing with dates, nor do they support his evidence that his brother was tortured. There is, however, a medical report, appearing on page 45 of the bundle, which appears to be a report to the police, which states that the applicant had haemorrhaged through his nose and had headaches which were produced by hanging his body upside down. That document does support the applicant's evidence that he was tortured in 1994. There is also what appears to be a police summons dated 25th November 1995, directing that the parents of the applicant should attend the police station. The difficulty, of course, with that document is that it is dated 25th November, whereas the package which the applicant sent appears to have been sent two days later.

The new evidence was sent to the Secretary of State and he considered it. On 20th March he said in a letter:

"The material provided with your letter of 29th April 1997 was carefully considered by the Secretary of State but he remains of the view that your client has not established a well-founded fear of persecution. The Secretary of State notes that the appellate authorities found your client's evidence to lack credibility. The Secretary of State also notes that the additional evidence was available to your client at the time of his appeal hearing and he considers that it cannot be regarded as sufficient explanation for the discrepancies in the various statements made by your client or sufficient to restore credibility to him. The Secretary of State remains of the view that members of the CUF have no reason to fear persecution in Tanzania because of their support for the party. On 17 August 1996, the CUF were able to hold their first rally on Zanzibar since the 1995 elections, which passed off peacefully. The Secretary of State is aware of a report on the voice of Tanzania on 13 August 1997 that the CUF had been banned from holding public rallies in the Western Region of Zanzibar. The report, however, made it clear that this was because of concerns for public safety and law and order since the CUF could not guarantee peace at its rallies in the area. Moreover, the Secretary of State remains of the opinion that there was no reason why CUF members who allegedly experienced problems on Zanzibar could not easily travel to the mainland where they could receive the protection of their national authorities.

The Secretary of State does not believe that your client's case would benefit from further consideration by the Adjudicator under section 21 (which consideration would be advisory in status in any event) and does not propose to make such a reference."

Solicitors acting on behalf of the applicant replied to that letter giving reasons as to why the evidence had not been produced and as to why it was material. To that letter the Secretary of State replied on 23rd April. I have read part of it already.

The letters show that the Secretary of State considered the evidence and his decision of the 23rd April was made on the assumption that the medical certificate and police summons were genuine and that the applicant's evidence was credible. The Secretary of State came to the conclusion that there would be no point in sending the case back, as the applicant could return to live safely and without harassment on the mainland in Tanzania.

Miss Rogers, who appeared for the applicant, submitted that the Secretary of State had been unreasonable in not referring the case back to the special adjudicator. She submitted that the correct approach in law was firstly to decide whether the applicant had a well-grounded fear which would provide a basis for asylum, and then go on to consider the question of internal flight. She submitted that the Secretary of State had not approached the matter in the correct way. She went on to submit that the conclusion reached by the Secretary of State was Wednesbury unreasonable.

As stated in Khaldoun, the Secretary of State must consider the new material. In my view he did just that. He must then ask himself:

"Do I need the benefit of a report from the adjudicator before making a final decision in the light of this new material, or am I in a position despite this new material to form a reliable judgment of my own?"

In my view he did just that. He concluded that he could form a reliable judgment. His conclusion was that the applicant could live safely and without harassment on the mainland in Tanzania.

Was the conclusion reached by the Secretary of State unsustainable in the sense of being Wednesbury unreasonable? I believe it was not for a number of reasons. Firstly, there is no evidence to suggest that the conclusion reached by the Secretary of State was wrong. His conclusion, that the applicant could live without harassment on the mainland of Tanzania, is supported by the documents in the case. It was based on an up to date assessment of the position, and there is nothing to suggest that it is Wednesbury unreasonable. Secondly, the reasonableness of living on the mainland was an issue at the hearing before the special adjudicator.

The special adjudicator did not have to make a conclusive finding on it, as he disbelieved the applicant. Thirdly, no additional factors making it unreasonable for the applicant to live on the mainland have been proposed on his behalf, despite the fact that the letter of the Secretary of State is dated 23rd April of this year.

In my view this is a case where it is not possible under section 21 of the Act to start the process all over again. Section 21 allows a report to be produced. The report would not have added to the information that was necessary to enable the Secretary of State to come to the conclusion that he did. I therefore would refuse leave.

LORD JUSTICE HUTCHISON:

I agree.

LORD JUSTICE MORRITT:

I also agree.

ORDER:

Application dismissed. Legal aid taxation of the applicant's costs.