R v. Immigration Appeal Tribunal, Ex parte Fadi Kozhaya Nader

IN THE SUPREME COURT OF JUDICATURE

IN THE COURT OF APPEAL (CIVIL DIVISION)

APPLICATION FOR LEAVE TO MOVE FOR JUDICIAL REVIEW

Royal Courts of Justice

The Strand

London W C2

Monday 8th December, 1997

Before: LORD JUSTICE EVANS, LORD JUSTICE HOBHOUSE, LORD JUSTICE PILL

REGINA

Respondent

- v -

IMMIGRATION APPEAL TRIBUNAL

ex parte Fadi Kozhaya Nader

Applicant

MR S COX (Instructed by Messr Aaronson & Co, London SW5 9BA) appeared on behalf of the Applicant

MISS L GIOVANNETTI (Instructed by the Treasury Solicitor) appeared on behalf of the

JUDGMENT

MR JUSTICE PILL:

This is a renewed application for leave to apply for judicial review. Application was made to Scott Baker J on 15th July 1997 and he refused leave. The appeal is from a decision of the Immigration Appeal Tribunal made on 3rd December 1996. They allowed an appeal from a Special Adjudicator who on 16th September 1996 had allowed an appeal from the Secretary of State's refusal to grant asylum to the applicant, Fadi Kozhaya Nader. The Immigration Appeal Tribunal remitted the case to a different Special Adjudicator for hearing de novo.

The applicant is a citizen of Lebanon. He was born on 15th September 1972. In 1989 he joined a Lebanese militia known as Lebanese Forces. In 1992 he joined the regular Lebanese Army and claims that acting as a soldier in that army he was involved in an incident on 13th September 1993 in the course of which he shot at Hezbollah protesters.

In seeking asylum the applicant's case, as summarized by the Special Adjudicator, was that the applicant:

"... is in danger from Hezbollah which undoubtedly has a strong presence throughout Lebanon and that the government would not offer him effective protection."

Having set out parts of the evidence, including a medical report from Dr Turner of the Traumatic Stress Clinic, the Special Adjudicator found at page 121:

"I am prepared to accept the appellant's account of events as being true. I find that whether or not there was some misunderstanding in relation to the interpreter at the interview, and whoever has the right of the situation, the appellant's basic account is reasonably consistent and any inconsistencies accounted for in the medical evidence so that the matter of the interpreter does not make much difference either way. I am unable to reach a conclusion as to what exactly happened on that day."

That finding was made in the context of a hearing at which the applicant did not give evidence. He submitted two statements, unfortunately only one of which was before the Special Adjudicator. Two witnesses were called, the applicant's brother and an interpreter. They gave an account of what happened when the applicant was interviewed.

In refusing asylum the Secretary of State had declined to accept the credibility of the applicant. Reasons were given in the letter of 17th June 1994, which is set out at pages 34 and 35 of the bundle. The Special Adjudicator accepted his credibility. She went on to consider the information before her as to events in Lebanon and found that matters relating to 13th September 1993 are still regarded as current. On that ground she allowed the applicant's appeal.

In relation to the comparative brevity of her reasoned decision she stated:

"It should be appreciated that it is not possible, without producing a document of inordinate length, to take the matter sentence by sentence and reject or accept each piece of evidence. Nor, in my view, is it necessary to do so. I have given appropriate weight to the evidence in accordance with the direction I have above given myself. Looking at the evidence as a whole and bearing in mind my assessment of the credibility of the appellant, I conclude, on the lower standard of proof as set out above, the appellant has shown that he has a well-founded fear of persecution for a Convention reason if he returns to Lebanon."

There is an appeal to the Immigration Appeal Tribunal from the findings of a Special Adjudicator, upon the facts and the law. It is open to the Immigration Appeal Tribunal to make its own findings of fact. That Tribunal did not find the hearing before the Special Adjudicator to have been satisfactory. I refer to parts of the reasoned decision:

"There are certain matters which must appear in the adjudicator's determination and one of those matters is that there should be a clear finding of credibility in respect of the witnesses called to give evidence. No finding was made in respect of the appellant's brother and the adjudicator failed to resolve what had occurred at the interview. There is, for example, the matter of the appellant's passport."

Having considered that, the Tribunal continued:

"If the appellant's claim at interview that he left Cyprus with a genuinely issued Lebanese passport was correct then his whole case would fall to the ground. That was a matter that expressly required resolving by the Special Adjudicator in our view. The question of the passport received no mention whatsoever. As we have observed the Adjudicator has failed to resolve the problem of what went on at the interview. Problems do not end there as we have pointed out the appellant's statement makes no reference to his claimed medical difficulties."

Miss Miszkiel, that is counsel for the applicant before the Tribunal, said this was because there was an earlier statement which she assumed had been lodged in the papers before the Special Adjudicator. The earlier statement apparently dealt with the appellant's state of mind.

"Unfortunately it appears the Special Adjudicator only had one of these statements before her. In a case in which the appellant was not giving evidence it really was incumbent on the Court to satisfy itself that it had the material relied on. It is somewhat surprising that no questions were in fact addressed to the appellant's brother concerning the appellant's claimed psychiatric state. ... The Adjudicator appears not to have explored the significance of the Consultant's tentative findings that the appellant might suffer from a delusional system based upon a history of genuine fear. ... Nevertheless, we do feel that the matter called for more careful analysis."

I have not included the whole of that page of the Tribunal's reasoning but I believe I have included the most material parts.

Following further comments the Tribunal concluded:

"However, we simply cannot be satisfied that this adjudication is satisfactory. We considered whether we would be able to deal with the matter ourselves, but in absence of clear findings of fact on material issues and on the credibility of the witnesses that she heard we are unable to do so."

A reference is then made to a change in the rules, bringing into force the 1996 Procedure Rules. The Tribunal continued:

"We certainly do not read Rule 2 as absolving an appellate authority from making findings on the material issues and cases involving medical evidence require particularly careful analysis."

On behalf of the applicant, Mr Cox submits that the finding of the Special Adjudicator which was in the applicant's favour should not have been treated in the way it was by the Immigration Appeal Tribunal. The applicant was entitled to retain the benefit of the Special Adjudicator's favourable finding. It is only if there is good reason, Mr Cox submits, that the Immigration Appeal Tribunal can set aside that decision. What they should have done was to accept the finding of the Special Adjudicator or, if they could not accept it, then resolve the matter for themselves as they were entitled to do. There were no sufficient grounds for setting aside the finding of the Special Adjudicator and ordering a rehearing. Mr Cox accepts that there were "quite a lot" of discrepancies between what was contained in the one of two statements of the applicant, which the Special Adjudicator had before her, and what the applicant said at interview. There was a discrepancy, for example, in relation to the passport. He claimed at interview that he came out of hiding and obtained a passport. He stated in his statement that that event did not occur and that as a member of the Lebanese Army he would not in any event be entitled to obtain a passport.

Mr Cox submits first that the Special Adjudicator was entitled to make the finding of fact which she did and to accept the credibility of the applicant. She had sufficient grounds for doing so and she stated them sufficiently. He submits that in their reasoning the Immigration Appeal Tribunal have misunderstood the approach of the Special Adjudicator and have themselves taken bad points in their criticism of it. For example, they have put too high the duty upon a Special Adjudicator to make a clear finding on credibility in respect of the witnesses called to give evidence. That, he submits, is not a universal duty and was not a duty which arose in this case because the evidence of the two witnesses was not evidence in relation, for example, to events in Lebanon but was simply evidence as to what had happened at the interview of the applicant by the immigration authorities.

He has set out in his skeleton argument the findings, as he sees them, of the Immigration Appeal Tribunal in relation to the conclusion of the Special Adjudicator and submits that they do not have merit. A further example is the surprise they expressed at the failure to question the applicant's brother as to the applicant's mental state. It is submitted that there was no duty to ask any such questions and the failure to ask them does not invalidate the Special Adjudicator's conclusion.

Mr Cox relies upon the case of the R.v. Immigration Appeal Tribunal ex parte Patel [1996] Imm.A.R 161. In that case the Immigration Appeal Tribunal had quashed a decision of a Special Adjudicator on the ground that there were procedural faults in the hearing before the Special Adjudicator. Carnworth J considered the allegation of procedural irregularities, rejected them and found that the finding of the Special Adjudicator should stand. He also considered an argument raised before him by counsel for the Secretary of State that the reasoning of the Special Adjudicator was insufficient and he rejected that argument too. It is a similar argument to that put forward by Mr Cox upon the hearing of this application.

What this court has to consider is whether it is arguable that the Immigration Appeal Tribunal were not entitled to take the course they did. As I said, their duty was to consider both the facts and the law, and they had a power to hear and determine the matter for themselves. They also had the power, which in the event they exercised, to remit the matter for a fresh hearing before a different Special Adjudicator.

In my judgment the Immigration Appeal Tribunal were entitled to take the course they did. The key sentence in the Special Adjudicator findings I have read. It is a finding in favour of the credibility of the applicant based upon a reading of his statement together with the evidence of Dr Turner:

"... that it was extremely likely that there would be significant discrepancies in histories given which were explainable in the context of the appellant's mental state."

There may be cases where an applicant does not give evidence, and where it may be open to the fact-finding tribunal to accept that considerable discrepancies which occur between evidence in the form of a statement and the contents of an interview are sufficiently explained by the contents of a medical report. Each case must be taken upon its own merits. However, in my judgment the Immigration Appeal Tribunal were right to say that, in a situation such as this, a careful analysis of the evidence is required. What the Special Adjudicator has done is simply to find that all the inconsistencies which were present are sufficiently explained by the medical evidence which was before her. In my judgment the Immigration Appeal Tribunal were entitled to say that a finding of that kind did require an explanation a good deal fuller than the one which was given by the Special Adjudicator. Specific findings were required in the particular circumstances of this case.

I find some force in the detailed criticisms by Mr Cox of the Immigration Appeal Tribunal's findings. If they were finding a general and invariable duty upon a Special Adjudicator to make a clear finding of credibility in respect of each witness, then that puts the matter too high. I find some force in detailed criticisms made upon other parts of their reasoning. However, in the particular situation which arose in this case they were fully entitled to take the view that the hearing before the Special Adjudicator was unsatisfactory. It has to be considered against the background which I have indicated. I am satisfied that in the manner in which they have expressed themselves the Immigration Appeal Tribunal were taking an overall view of the case. I quote again:

"In a case in which the appellant was not giving evidence it really was incumbent on the Court to satisfy itself that it had the material relied upon."

In this case not only did the applicant not give evidence before the Special Adjudicator but that Adjudicator had before her only one of the two statements which he had made. This was a case where, if the credibility of what the applicant had put into the statement before the Adjudicator was to be accepted, then further reasoning and findings were required of the Special Adjudicator. For these reasons I do not consider that there is an arguable case to be placed before this court and I would refuse the renewed application.

LORD JUSTICE HOBHOUSE:

I agree that this application should be refused for the reasons given by my Lord, Lord Justice Pill.

LORD JUSTICE EVANS:

I also agree.

ORDER:

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