Mario v. Secretary of State for the Home Department

MARIO v SECRETARY OF STATE FOR THE HOME DEPARTMENT

Immigration Appeal Tribunal
His Honour Judge Pearl (President), Miss P. G. Liverman JP and Mrs M. Simon
6 March 1998

Asylum - Credibility - Inconsistent findings of credibility by different special adjudicators - Weight to be attached to findings of special adjudicator who has seen and heard a witness - Approach to conflicting background material on human rights practices in country of feared persecution - Circumstances in which Immigration Appeal Tribunal should remit an appeal-Delay in promulgation of determinations-Asylum appeals (Procedure) Rules 1996, rr 17 23 (2) The appellant, a citizen of Lebanon, applied for asylum in July 1993 on the grounds that he was a Maronite Christian who supported general Aoun and that, because of his political activities in Chekka, he was at risk of being arrested by the Syrian Army. The Secretary of State refused the appellant's application in January 1995. The appellant appealed to a special adjudicator who allowed his appeal on 11 September 1996 after generally finding the appellant to be credible. The Secretary of State appealed to the Immigration Appeal Tribunal. The Tribunal, after finding that the special adjudicator had misdirected himself as to the appropriate standard of proof, allowed the appeal and remitted the matter back of another special adjudicator to be heard de novo. On 5 August 1997 the appellant's appeal came before a second special adjudicator who, without hearing any oral testimony, dismissed the appeal on the grounds that the appellant was not credible and, alternatively, that on examination of the documentary evidence, the appellant's fears were not well-founded. The appellant appealed to the |immigration Appeal Tribunal. Before the Tribunal the Secretary of State, in reply to the appellant's submissions, invited the Tribunal the Secretary of State, in reply to the appellant's submissions, invited the Tribunal to, first, uphold the second special adjudicator['s findings on credibility and, secondly, to attach little weight to the Amnesty International and Human Rights Watch reports and instead focus upon the US department of State report. Held - allowing the appeal - (1)Findings upon the credibility of an appellant could be arrived at even though the appellant was not called to give evidence. However, as the second special adjudicator, unlike the first, had not heard oral testimony from the appellant, the findings of credibility arrived at by the first special adjudicator were preferable to those of the second special adjudicator. Accordingly, it was reasonably likely that the core of what the appellant had described in his evidence had happened and that, in consequence, it was reasonably likely that the appellant had a subjective fear of persecution. (2)As the US Department of State report itemised particular objective evidence of concern, there was no major conflict between the US Department of State report and those of Amnesty International and Human Rights Watch. Insofar as there was a conflict, the well-documented and sourced reports of the non-governmental organisations were to be preferred to the unsourced Department of State report. Accordingly, if the appellant were returned to Lebanon there was a reasonable degree of likelihood that he would be picked up, handed to the Syrian forces and persecuted because of his political opinions imputed to him as a result of his earlier anti-Syrian activities. Obiter; (1) The effect of rr 171[1] and 23 (2)2[2] of the Asylum Appeals (Procedure) Rules 1996 was to create a presumption in favour of the tribunal hearing a case itself, even if that meant that the Tribunal had to hear oral testimony. Although there would be circumstances where remittal would be appropriate, it should be confined to cases where the appellant had been denied a fair or proper hearing before the special adjudicator. (2) As asylum appeals require anxious scrutiny, the Tribunal will usually remit a case to another special adjudicator where the period between the hearing and the dictation of the determination is more than 3 months. Cases referred to in judgment
Goose v Wilson Sandford &Co (1998) The Times, February 19, CA Kaja v Secretary of State for the Home Department [1995] Imm AR 1, IAT R v Secretary of State for the Home Department ex parte Bakis [1996] Imm AR 487, CA Mr P. Jorro (Refugee Legal Centre) for the appellant Mr I. Richards (Home Office presenting officer) for the respondent HHJ PEARL (PRESIDENT); The appellant is a citizen of Lebanon. The history of this case is extremely unfortunate, and it is important to set out the circumstances in some detail. The appellant arrived in the UK on 6 May 1993 and he was granted leave to enter for 6 months as a visitor. On 6 July 1993 he applied for asylum. The basis of his claim was that he is a Maronite Christian who supports General Aoun. He stated in his interview that he was involved in a flyposting and leafleting activity in Chekka in April 1993, and that as a result of this activity, he was at risk of being arrested by the Syrian Army. His claim for asylum was refused by the Secretary of State by notice dated 12 January 1995. The refusal letter which is dated 5 January 1995 sets out the reasons in some detail. This reads as follows;

'You have applied for asylum in the UK on the grounds that you have a well-founded fear of persecution in Lebanon for reasons of race, religion, nationality, membership of a particular social group or political opinion.

The basis of your claim is that you were a Maronite Christian a supporter of General Aoun. Furthermore, you were wanted by the Syrian Army because of General Aoun. Furthermore, you were wanted by the Syrian Army because of your involvement in a flyposting and leafleting incident.

You claimed that one night between 10 and 15 April 1993 you and nine others were distributing leaflets and flyposting. These leaflets had been obtained from members of the Lebanese Army by unnamed General Aoun supporters. The following say members of the Syrian Army became aware of these posters and closed all the exits to the town. A curfew was also imposed. Members of the Syrian Army began looking for those who had been involved in the incident and you claimed that all the youths of the town were detained for questioning. You claimed that none of those who were arrested returned. You claimed that you saw the army personnel crowding the area and taking youths for questioning and as you feared these people you decided to take the precaution of leaving your home.

You went to the home of an old lady who lived opposite and it was from her house that you saw the Syrian Army personnel knock on your door.

You then claim to have received a phone call at the old lady's house from an old man who had seen you go into the old lady's house and therefore knew to ring you there warning you to leave immediately as you were being looked for. Though the old man who had warned you had not himself been taken in for questioning, he rented a room to a young person and the Syrian Army personnel had arrested that person whilst asking about you.

You claimed that the Syrian Army knew your name and address through their intelligence sources however you were not a member of any political or religious organisation nor have you ever been harassed or ill-treated in the Lebanon by the authorities. The Secretary of State therefore considers it highly unlikely that the Syrian Army would have had any interest in you and is of the opinion that this aspect of your claim is an invention.

You then planned to leave the area as you knew your life was going to be hell. You then went to Beirut without returning to your home. You did however have i your possession at the time your passport which was issued to you in 1992.

You claimed that there was a list which included the names of the people who had taken part in the leafleting flyposting incident. The Syrian Army had told your neighbours that your name was on this list and that you were wanted for questioning. You assumed that someone had given your name under torture.

The Secretary of State considers that this unsubstantiated claim was likely to be an invention made to bolster your application for asylum.

You stayed in Beirut for 2 weeks believing your life to be in danger.

You kept moving about because you thought that the Syrian Army would come and arrest you. A Syrian military man asked a nearby shop owner if there was anybody from the northern part of the country specifically Chekka, your home town, living there. Your landlord went to the corner shop and the shop owner had asked him, this is how you knew you were being followed.

The Secretary of State does not find this aspect of your claim credible considering your claimed level of involvement with supporters of General Aoun. Nor does he consider it credible that the Syrian forces would expend resources attempting to trace you in Beirut for the same reason.

Whilst in Beirut you phoned someone in the UK requesting that they fax, on your behalf, an invitation to visit the UK to the British Embassy in Beirut. This fax was dated 14 April 1993. The visa was issued on 24 April 1993 and you travelled to the UK on 6 May 1993. You claimed asylum on 6 July 1993 having been informed that you were still wanted. The Secretary of State noted that the flyposting incident took place some time between 10 and 15 April 1993 and that some time after this event you left for Beirut. This discrepancy in the dates given further undermines the credibility of your claim.

In the light of all the evidence provided and for the reasons given above the Secretary of State has concluded that you do not qualify of refugee status.'

He appealed and the matter was heard by Mr M E Curzon Lewis on 31 July 1996. Mr Curzon Lewis allowed the appeal. The Secretary of State appealed this determination, and leave was granted by the Tribunal on 15 October 1996. The tribunal heard the appeal on 8 November 1996 and by a determination notified on 13 January 1997, the Tribunal allowed the appeal to the extent that it was remitted for hearing de novo by an adjudicator other than Mr Curzon Lewis. The Tribunal (14453) stated that Mr Curzon Lewis had fundamentally misdirected himself as to the appropriate standard of proof. Moreover he had failed to give any or adequate reasons for concluding that there was a 10% chance of the respondent being persecuted as a returnee. The matter came before Ms Gill on 5 August 1997. Her determination was prepared on 1 September 1997 and was signed on 12 September 1997. She heard no live evidence given at the hearing before him, namely from p 1 to the top half of p 19. This contains a summary of all the evidence given before Mr Curzon Lewis, but does not contain his findings. Ms Gill came to the conclusion that the entire story is a fabrication from beginning to end to support a bogus claim for asylum and she dismissed his appeal for that reason. She went on to say that even if the appellant's story were true, she did not consider that the appellant had a well-founded fear of persecution based on the documentary evidence she had considered and which is referred to in her determination. The appellant was granted leave to appeal to the Tribunal by a determination notified on 27 October 1997 and we heard Mr P. Jorro in support of the appeal and Mr I. Rechards who appeared on behalf of the Secretary of State on 17 February 1998. We have set out these bare facts because this case is a very good example of the unfortunate situation which arises when asylum claims are not dealt with expeditiously. Almost 5 years have now expired since the appellant arrived in this country, and it is totally unacceptable when decision-makers are unable to reach a conclusion on the bona fides of a claim within a reasonable period of time. Rule 23 (2) of the 1996 rules states that the overriding objective (of the conduct of appeals) shall be to secure the just, timely and effective disposal of appeals. Regrettably, this Tribunal has to conclude that the conduct of this appeal falls below the acceptable standards. The asylum claim was made on 30 July 1993. The interview date was 25 October 1994. The decision was communicated on 12 January 1995. The case was heard before Mr Curzon Lewis on 31 July 1996. His 23-page determination was signed on 11 September 1996. The remittal de novo was signed on 13 January 1997. Pausing there, and given that this Tribunal wishes to lay down general guidelines for the future, it is necessary to say quite firmly that this Tribunal will not remit de novo in similar cases. Rule 17 of the 1996 rules makes it clear that there should be a presumption that the Tribunal should hear the case itself. There will of course be cases when remittal is appropriate, but these should be confined to cases where the appellant had been denied a proper hearing before the adjudicator. This was certainly not the case so far as the Secretary of State was concerned in the proceedings before Mr Curzon Lewis. He may not have liked Mr Curzon Lewis. He may not have liked Mr Curzon Lewis's conclusions and he legitimately had much to complain about the use of the language which was used in the assessment of the evidence. But this is a different matter to saying that the appellant (in this case the Secretary of State) had been effectively denied a fair and proper hearing at first instance. The criticisms should not prevent the Tribunal, in a future instance, from hearing the case itself, even if it be necessary for oral evidence to be called. In his submissions before us, Mr Jorro expanded upon the grounds of appeal. These read as follows;

'(1)The adjudicator finds the appellant not to be credible finds his account of his reasons for leaving, and fearing to return to Lebanon to be ''a fabrication from beginning to end to support a bogus claim for asylum'' (antepenultimate paragraph on p 12 of the determination refers). The adjudicator bases this finding on a list of alleged discrepancies between the appellant's accounts given at various stages i the asylum determination procedure (pp 8-12 of the determination refer). It is submitted that the adjudicator's adverse findings on the appellant's credibility are flawed and should not be relied upon by the Tribunal for the following reasons;

(a)It is submitted that most of the supposed discrepancies concerning numbers of people, dates of events and time periods between events are very petty and really should not form the basis or even part of the basis of an adverse credibility finding against an asylum-seeker. For example, in the first of these supposed discrepancies (numbered (1) on p 8 of the determination) the appellant's credibility is impugned because in describing the number of people involved in the ''flyposting incident'' he apparently at different times used the expressions ''a few'', ''approximately 10'' and ''between 5 and 10''. It is submitted that the other supposed discrepancies meticulously itemised by the adjudicator are of a similar petty nature and should not be held against the credibility of an asylum-seeker who under formalised and pressurised circumstances has, at different times, given an account of a series of events that occurred up to more than 3 yeas earlier. It is submitted that the adjudicator's approach of going through the evidence with a fine comb and thereby inevitably finding petty discrepancies with which to impugn the appellant's credibility has no proper place in the determination of an asylum appeal involving as it does the gravest of possible consequences if the adjudicator's decision is wrong; cf Yusuf Ozer (IAT 12233) per the Tribunal at p 12; ''As Sivakumaran has emphasised in company with a long line of decisions thereafter the severe consequences of an error make it important that a Tribunal charged with deciding issues of this nature must not only bear in mind the criteria set out in these cases but be able to apply them and in our view apply them in a liberal manner''. Sivakumaran [1988] Imm AR 147, 152 per Lord Keith of Kinkel quoting Lord Diplock admonishing those such as the adjudicator to bear in mind ''the relative gravity of the consequences of the court's expectation being falsified either in one way or the other'', and Kaja [1955] Imm AR 1

(b)The adjudicator's adverse findings on the appellant's credibility are based on the oral evidence that he, the appellant, gave before another adjudicator at a previous hearing rather than on any oral evidence given before her, the current adjudicator. It is to be noted that the adjudicator who actually heard the appellant's evidence concluded that;

''Although there are discrepancies, I accept [the appellant's representative's] submission, based on Chiver [IAT 10758 -also referred to the present adjudicator], that the central core of the appellant's story has remained consistent''(p 171 of the Tribunal bundle prepared for the Tribunal hearing that resulted in the remittal of the appeal for hearing de novo refers).

That adjudicator went on to find the appellant to be a generally credible witness and allowed his appeal. It is submitted that, as a matter of law, if an experienced asylum adjudicator finds a witness's testimony to be credible there must be a reasonable degree of likelihood that the witness is telling the truth (cf Kaja [1995] Imm AR 1) and it is to be noted in this context that on appeal to the Tribunal from the previous adjudicator's determination, the current respondent did not seek to challenge the adjudicator's findings on the appellant's credibility - p 3 of the Tribunal determination number 14453 refers - but only challenged his mathematical formula for describing the Sivakumaran standard of proof and it was on this basis only that the appeal was allowed by that Tribunal and remitted for hearing de novo. It is further submitted the Tribunal can and should take account of the previous adjudicator's positive findings on the appellant's evidence: cf Ather Matud Khan IAT 11610 set aside by order of the court of Appeal 2207/95 (27 June 1995) on the basis of grounds of appeal specifically alleging error on the Tribunal's part in refusing to consider a previous adjudicator's positive credibility findings on hearing an appeal from a second adjudicator's negative determination.

In Boakye-Yiadom (IAT 12818) more than one adjudicator heard a witness give the same evidence. One believed it, another did not and the Tribunal resolved the matter by hearing the witness's evidence themselves. In the present case only one adjudicator has heard the appellant give evidence and he believed the appellant. Consequently it is submitted that the Tribunal should not rely on the (second) adjudicator's adverse finding on the appellant's credibility.

(2)It is submitted that notwithstanding the adjudicator's adverse findings on the appellant's credibility, her determination is against the weight of the background evidence before her. It is submitted that on the basis of that background documentary evidence there is a reasonable degree of likelihood that if the appellant - a Maronite Christian-were returned to Lebanon now having been out of the country for over 4 years and having claimed asylum abroad, he will be detained at the airport by the pro-Syrian Lebanese and/or Syrian authorities and will be interrogated as to his antecedents. It is submitted that as a part and/or a consequence of that interrogation the appellant will be persecuted by reason of imputed anti-Syrian political opinions and/or his religion. Accordingly it is submitted that the adjudicator erred in dismissing this asylum appeal.'

Mr Richards reminded us that the appeal before us is the appeal from the decision of Ms Gill. He said, correctly in our view, that it is possible to arrive at findings of credibility even though the asylum-seeker is not called to give evidence (R v Secretary of State for the Home Department ex parte Bakis [1996] Imm AR 487). He commented that there were 13 itemised points referred to by Ms Gill going against the credibility of the appellant and he submitted to by ms Gill going against the credibility of the appellant and he submitted that taken cumulatively the adjudicator was entitled to arrive at the conclusion she did. He reminded us further that Ms Gill had gone on to state that even if the story of the flyposting were true, she had arrived at an assessment that there was no reasonable likelihood of a well-founded fear of persecution. In his submission, this assessment was justified by the evidence. We have looked carefully at the evidence which was given before Mr Curzon Lewis. This evidence was not challenged at the first appeal before the Tribunal, and this evidence was of course the basis for Ms Gill's findings. Mr Curzon Lewis made one finding on this evidence; Ms Gill made another finding as she was perfectly entitled to do so. In the recently reported case of Goose v Wilson Sandford & Co (1998) The Times, February 19, the Court of Appeal stated that in normal circumstances the trial judge who had seen and heard the witnesses had an advantage which was likely to prove decisive when findings were disputed on appeal. In that case, the Court of Appeal severely criticised a 20-month delay between hearing evidence and the judgment, and it referred to other cases with 5 months' delay and 8 months' delay where the Court of Appeal had censured the trial judge. In an area such as asylum, where evidence requires anxious scrutiny, the Tribunal will usually remit a case to another adjudicator where the period between the hearing and the dictation of the determination is more than 3 months. There were no such concerns in this case. We look at the evidence, as we must do, de novo. We apply the appropriate standard, namely; is there a reasonable likelihood that the appellant is telling the truth? (Kaja v Secretary of State for the Home Department [1995] Imm AR 1.) We find as a fact (a) that it is reasonably likely that the core of what he described in his evidence happened; and (b) that in consequence it is reasonably likely that he has a subjective fear of persecution. To that extent, we prefer the assessment by Mr Curzon Lewis (who had the advantage of hearing the witness) to that of Ms Gill and in so doing adopt the argument of Mr Jorro in his first ground of appeal. We must therefore consider the objective evidence which we have available to decide whether this appellant, admittedly not a major player in Lebanese politics, but nevertheless a Maronite Christian who engaged in flyposting in 1993, has a well-founded fear of persecution if returned to Lebanon. Is there a reasonable likelihood that he would be persecuted for a Convention reason? We have looked carefully at the new material submitted by Mr Jorro: (1)Amnesty International Urgent Action, 23 December 1996 (2)Human Rights Watch: May 1997 (3)Amnesty International -Lebanon October 1997 (4)US State Department Report on Lebanon, January 1998. It is clear from these documents that Syria maintains a force of 35,000 troops in Lebanon (1 at p 1). Dozens of people were arrested in December 1996 following certain incidents, in particular when a Syrian mini-bus was attacked. Some were released but the rest are believed to be detained at the Ministry of Defence (1 at p 1). It is estimated that the number of detainees has reached 200, and those arrested include followers of General Aoun (1 at p 1). There is a disturbing account about the abduction and unlawful detention of Gabi 'Aql Karam in 1997 (2 at p 30). Amnesty International report on the hundreds of people who have been arrested for political reasons by the army, security forces, military police, and Syrian military personnel. In particular there have been instances of arrests in connection with the distribution of leaflets or the expression of an opinion critical of the Lebanese Government or of the Syrian presence in Lebanon (3 at p 57). Most disturbingly is the statement of AI 3 at p 78:

'The body of evidence collected by AI from accounts of former detainees at the Ministry of Defence suggests that torture normally accompanies the interrogation of detainees associated with certain political groups'

AI detail the torture methods which have been described to them - electric shocks, food and sleep deprivation, hanging on the Ballanco, in addition to threats and the use of abusive language. Mr Richards in his submissions asks us to give only minor consideration to these reports and instead he relied on the US State Department report for 1997 where at 4 at p 89 it is said the there are no reports of politically motivated disappearances in that year. However, on the same page the US State Department report does say that the Government uses arbitrary arrest and detention. We have to say that insofar as there is a conflict between the report of the State Department and the AI and Human Rights Watch reports (and we do not think there is a major division opinion here), we to an extent feel more comfortable with the well-documented and sourced reports of the non-governmental organisations. The US State Department report is not sourced. But even this report 4 at p 90 accepts that 'Human rights groups credibly report that detained persons are sometimes transferred to Syrian custody and imprisoned in Syria. The number of persons cannot be determined accurately, but President Hrawei in a televised interview last year stated that 210 Lebanese were in Syrian custody'. And further down the same p 90 'Syrian forces reportedly detain persons'. Mr Richards asked us to focus on the US State Department report as more objective than the other reports. We are not convinced that Mr Richards is correct in this assertion for the reasons set out above, but we need not make a choice between conflicting reports because we are of the view that the US State Department report itemises particular objective evidence of concern in any event. Looking at all the evidence in this case, we have formed the view that there is a reasonable likelihood that if the appellant were to be returned to Lebanon he would be picked up and handed to he Syrian forces. There is a reasonable likelihood that he would then experience persecution of the kind highlighted in the reports to which we have referred. It is a reasonable likelihood that this would happen, not necessarily because he is a Maronite Christian (after all the President is from that community) but because of the political opinions imputed to him as a result of his earlier anti-Syrian activities. For these reasons, his fear is well founded, and we allow the appeal of the appellant from the determination of Ms Gill. Appeal allowed.

[1] Rule 17 of the 1996 rules reads; '(1) Except where an appeal is determined without a hearing in accordance with Rule 35 or summarily i accordance with Rule 36, a hearing shall be held to decide an appeal. (2) Unless it considers - (a) that it is necessary in the interests of justice, and (b) that it would save time and avoid expense to remit the case to the same or another special adjudicator for determination by him in accordance with any directions given to him by the Tribunal, the Tribunal shall determine the appeal itself. [2] Rule 23(2) of the 1996 rules reads; -The overriding objective shall be to secure the just, timely, and effective disposal of appeals and, in order to further that objective, the authority may give directions which control the preparation for, and conduct of, any hearing'

This is not a UNHCR publication. UNHCR is not responsible for, nor does it necessarily endorse, its content. Any views expressed are solely those of the author or publisher and do not necessarily reflect those of UNHCR, the United Nations or its Member States.