Unongo v. Secretary of State for the Home Department

MUNONGO v SECRETARY OF STATE FOR THE HOME DEPARTMENT

Court of Appeal (Civil Division)

[1991] Imm AR 616

Hearing Date: 15 July 1991

15 July 1991

Index Terms:

Political asylum -- refusal of asylum by Secretary of State -- discrepancies in applicant's accounts -- chronology of events not credible -- injuries of applicant compatible with his account of ill-treatment but no evidence to link injuries with ill-treatment as claimed -- whether Secretary of State's decision unreasonable. HC 251 para 75.

Judicial review -- refusal of asylum -- whether following ex parte Brind court still restricted to a review on the principle set out in Bugdaycay.

Held:

The applicant was a citizen of Zaire who had been refused political asylum by the Secretary of State. His application for judicial review was refused by Rose J and the application was renewed before the Court of Appeal. The applicant asserted that he had been tortured in Zaire. His injuries were compatible with his account of ill-treatment but there was no evidence to show that the injuries were the result of the ill-treatment of which he complained. He had changed his account of events from time to time: the alleged sequence of events the Secretary of State had considered not to be credible. Counsel argued that in the light of all the evidence, the Secretary of State's decision was Wednesbury unreasonable. He also submitted that following ex parte Brind, the court was not so restricted as hitherto in its approach to such an application for judicial review as was before it. Held: 1. On the facts the Secretary of State's decision was not Wednesbury unreasonable. 2. Following Bugdaycay, it was not for the court to decide whether an applicant was a refugee: that was a matter for the Secretary of State: the court was restricted to determining whether the procedures had been properly observed. 3. There was nothing in ex parte Brind that altered the limited ambit of the court's jurisdiction in such cases, as settled in Bugdaycay.

Cases referred to in the Judgment:

Bugdaycay and ors v Secretary of State for the Home Department [1987] 1 AC 514: [1987] Imm AR 250. R v Secretary of State for the Home Department ex parte Brind [1991] 1 AC 696: [1991] 1 All ER 720. R v Secretary of State for the Home Department ex parte Munongo (unreported, QBD, 8 July 1991).

Counsel:

G Warr for the applicant; D Pannick for the respondent PANEL: Dillon, McCowan, Nolan LJJ

Judgment One:

DILLON LJ: This is a renewed application for leave to move for judicial review on behalf of Mr Mbangala Munongo. Leave was refused by Rose J on 8 July 1991. Mr Munongo was born at Kinshasa in Zaire, on 8 March 1955 and up to April 1990 he was employed as a bus conductor there. On 2 October 1990 he arrived in the United Kingdom from Lagos in Nigeria and claimed political asylum on his arrival. He has remained in this country ever since while his application for political asylum was being considered. On 10 December 1990 the Home Office wrote their usual letter saying that they were minded to refuse the application for political asylum, and on 15 April, after certain further interviews and discussions had taken place, the actual decision was made and leave to enter this country was refused. The basis of Mr Munongo's claim that he is a refugee with a well-founded fear of persecution if he is returned to Zaire is that on 2 April 1990, he says, he was seized by the security guards in Zaire when he was either at a bus stop in the vicinity of, or taking part in, a student demonstration. He says that he was imprisoned from that time until he escaped on 2 October 1990 and while he was in the hands of the security guards he was tortured and beaten. These aspects always make any case of a claimant for political asylum a delicate and difficult case. While his application for leave to move for judicial review was pending in the Divisional Court Mr Munongo was medically examined in this country. The medical examination was on 3 May 1991 and the report is dated 7 May 1991 by a Dr Vincent Tonge. That report set out in considerable detail the scars and marks found on Mr Munongo's body: it referred to his anxiety and depression and that he appeared to have lost weight. The opinion given by the doctor was that: "Mr Munongo gave a convincing history of imprisonment and torture. The conditions he describes were appalling and likely to have a prolonged deleterious effect on mental stability. Mr Monongo shows evidence of stress and depression likely to arise as a result of such treatment. His condition will be likely to worsen as a result of his continued detention. He could become a suicide risk. Physical examination shows numerous scars completely compatible with the history of beatings which he gives". That report was signed on 7 May 1991 and the application for judicial review came before Hutchison J on 9 May. He was evidently concerned that though the Home Secretary had only received the report on, it would seem, 8 May, the Home Office was nonetheless entirely satisfied that Mr Munongo had no valid case for political asylum and ought to be returned to Zaire. Consequently, the application for judicial review was adjourned by Hutchison J to enable the Home Secretary to reconsider the medical information concerning Mr Munongo. In the course of reconsideration the Home Secretary decided to appoint another doctor to examine Mr Munongo and report. The doctor chosen was a Dr Ian West from the United Medical and Dental Schools of Guy's and St Thomas's Hospitals. He wrote his report on 28 May 1991 having examined Mr Munongo on 16 May. He again set out in considerable detail the various scars that he found on Mr Munongo's body and his conclusion was, in summary, that Mr Munongo "has a pattern of injury particularly to his back, which is consistent with the effect of a beating with a linear hard object". In effect Dr West was saying that the pattern of injury to his forehead, left shoulder and back was consistent with the account which Mr Munongo had given of the way in which he was physically ill-treated whilst in detention in Zaire. Having had the benefit of that report, the Home Secretary reconsidered the case. But in the departmental letter of 24 June 1991 the Home Secretary points out that the medical report does not establish when, where and in what circumstances Mr Munongo's injuries were sustained nor by whom they were inflicted. It is a statement of the obvious that Dr West was not likely to be able to give any answer on those questions. The letter goes on, however, to say that having considered the medical report and all the other material the Secretary of State has concluded that the injuries were not sustained in the circumstances claimed by Mr Munongo and that Mr Munongo does not have a well-founded fear of persecution in Zaire. As the reason for that conclusion, the Secretary of State states that he does not believe Mr Munongo's account of how he came to be arrested and how he came to leave Zaire. As an additional factor, without which the same conclusion would be reached, the Secretary of State continues to believe that if Mr Munongo had a well-founded fear of persecution in Zaire he would have sought asylum in Nigeria. The two factors that the Secretary of State is concerned about apart from the failure to claim political asylum in Nigeria are, first, that Mr Munongo has changed his story. When he was first interviewed he said that he was waiting innocently at a bus stop, near the area of a student demonstration, having for reasons which he gave been late. In a later interview he said, through an interpreter, that he was a participant in the student demonstration. The other aspect is the amount of incident which on Mr Munongo's account was crammed into 2 October 1990. Mr Munongo claims that in the course of that day he escaped from prison in Zaire with the connivance of a Zairean soldier, he was equipped with a forged Swaziland passport and took a plane from Kinshasa to Nigeria. He arrived in Nigeria, spent three hours in transit there and having acquired a ticket through to London caught a plane so as to arrive in London on the same day as his escape from prison in Zaire. These are factors which the Home Secretary has found incredible. We are, as has been strenuously pointed out by the House of Lords in R v Home Secretary, ex parte Bugdaycay [1987] 1 AC 514, not the people who are to make the decision whether or not an applicant is entitled to political asylum under the Convention. That decision is the responsibility of the Home Secretary. This court, like the Queen's Bench Division, is only concerned that the correct procedures have been fairly applied. At the same time as the Bugdaycay case the House of Lords allowed an application by a Mr Musisi but that was allowed on the exceptional circumstances of his case which, so far as I can see, have no parallel in Mr Munongo's case. Looking at the facts of the present case, I am unable to say that it is Wednesbury unreasonable for the Home Secretary to take the view he does of Mr Munongo's credibility. I cannot say that any of the recognised grounds for judicial review of illegality, irrationality, or procedural impropriety have been made out. Mr Warr submitted that in the more recent decision of the House of Lords in the case of R v Home Secretary, ex parte Brind [1991] 1 AC 696, which was not concerned in any way with political asylum, the House of Lords have indicated that the law may have moved on from the considerations which had previously been regarded as necessary to found an application for judicial review and that there is something more now required that the previously understood conception of irrationality. I myself can see no such indication in the speeches in R v Home Secretary, ex parte Brind where it seems that conventional principles were applied. In the present case I see no basis for intervention by this court. Accordingly I would refuse this application. Judgment By-2: McCOWAN LJ

Judgment Two:

McCOWAN LJ: I agree.

Judgment Three:

NOLAN LJ: I also agree.

DISPOSITION:

Application dismissed

SOLICITORS:

Seifert, Sedley, Williams; Treasury Solicitor