Bambagu Manzeke v. Secretary of State for the Home Department

IN THE SUPREME COURT OF JUDICATURE

IN THE COURT OF APPEAL (CIVIL DIVISION)

ON APPEAL FROM THE IMMIGRATION APPEAL TRIBUNAL

(THE SPECIAL ADJUDICATOR)

Royal Courts of Justice

Strand

London WC2

Wednesday 18 June 1997

Before: THE MASTER OF THE ROLLS (LORD WOOLF), LORD JUSTICE POTTER, LORD JUSTICE BROOKE Bambagu Manzeke- v -Secretary of State for the Home Department

MR A NICOL QC (Instructed by Messrs Akainyah & Co, London, N4 2AG) appeared on behalf of the Appellant

MR S KOVATS (Instructed by the Treasury Solicitor, London, SW1H 9JS) appeared on behalf of the Respondent

JUDGMENT

(As approved by the Court)

LORD WOOLF, MR:

This is an appeal brought with the leave of Schiemann LJ against the decision of an Immigration Appeal Tribunal allowing an appeal by a Special Adjudicator, who had allowed an appeal from the Secretary of State.

At the outset of the hearing, Mr Kovats, who appears on behalf of the Secretary of State, applied for an adjournment on the grounds that, as a result of the political upheavals that occurred in Zaire, (the country from which the appellant had come to this country via Nigeria), for the time being the Secretary of State was not returning asylum seekers to Zaire. Mr Kovats submits that that made the appeal inappropriate for consideration by this court.

Mr Nicol, who appears on behalf of the appellant, submitted to the contrary, that the appeal would benefit the appellant if the outcome was favourable to him. He had an adverse decision of a Tribunal which could prejudice him if there was any reconsideration of his position and in the circumstances the more appropriate course was for this court to determine the appeal.

As the court had set aside a day for the hearing of this appeal and the case had a long history, we came to the conclusion that the application for an adjournment should be rejected. In doing so the court took into account that while the outcome of the appeal would very much depend on its own facts, the case raised considerations as to the relationship between Tribunals and Special Adjudicators upon which it might be useful for this court to give assistance which would be of value to Special Adjudicators and Tribunals in other asylum cases.

The appeal indicates that, regrettably, the determination of asylum issues can take a substantial time. The appellant arrived in this country from Zaire, claiming asylum on arrival, as long ago as 4 June l990. In March 1995 the Secretary of State refused that application; on 19 July 1996 the Special Adjudicator, Mrs Farrall, allowed the appeal; on 4 November 1996 the Secretary of State's appeal to the Tribunal, presided over by Mr O'Brien Quinn, was, in turn, allowed.

In his notice of appeal on behalf of the appellant, Mr Nicol sets out with admirable clarity and objectivity the matters upon which he relies in support of the appeal. He draws attention to the fact that the Tribunal recorded that, as it saw the position:

"....the Respondent was found not to be credible, his whole story of arrest, detention and escape was disbelieved."

With regard to that statement, the notice of appeal states:

"The Tribunal proceeded on a false factual premise."

It then records why the Special Adjudicator disbelieved the appellant's account of his escape from prison, which the Adjudicator says she found totally implausible. The notice of appeal continues by recording that the Special Adjudicator made no clear finding as to whether she believed the appellant's evidence that he had been beaten every day while detained. However, it also sets out her finding that she did not think he had suffered harm or injury of sufficient gravity to constitute persecution for a Convention reason, which may suggest that she did not believe this aspect of his evidence either.

In view of the latter finding, I am satisfied that the Special Adjudicator had rejected the appellant's description of what happened to him while he was imprisoned.

The notice of appeal then records that the Special Adjudicator made no clear finding as to whether the appellant had been imprisoned, but suggests, for reasons which it details, that the Special Adjudicator probably did accept that he had been imprisoned. As to that latter suggestion in the notice of appeal, again, having examined the adjudicator's decision with some care, I am satisfied that she accepted the appellant's evidence that he had been not only arrested but also imprisoned.

Finally, the notice of appeal refers to the fact that the Special Adjudicator clearly accepted that the appellant had been arrested as a result of acts committed by him in the course of taking part in a demonstration at his university. Again I would regard the notice of appeal as accurately describing the position. Therefore, the Special Adjudicator had rejected part of the appellant's evidence, but by no means all of it. To that extent, the case of the appellant is made out. The appellant has established that the Tribunal was clearly proceeding on a false factual premise, as is contended, because of the passage in its decision to which I initially referred.

In order to succeed on an appeal, it is necessary for an appellant not only to show that there has been a factual error made by an appellate body such as the Immigration Appeal Tribunal, but that that factual error is material to its decision. The notice of appeal therefore seeks to set out reasons why it contends that the factual mistake made by this Tribunal was material. In doing so, it refers to an earlier decision of this court, M [Mbanza] v Secretary of State for the Home Department Imm AR 136. In that case the division of this court was presided over by Butler-Sloss LJ, sitting with Millett and Ward LJJ. The court reviewed a decision of a Tribunal concerning a citizen in Zaire who was also seeking political asylum. In their judgments, the members of the court referred to an earlier decision of Laws J, where the facts were similar, in an unreported case of the R v Immigration Appeal Tribunal ex parte Senga reported on 9 March 1994. They then indicated that if a Special Adjudicator had come to the conclusion, as had the Special Adjudicator in the case of Mbanza, that an asylum seeker was "totally devoid of any credibility" so that the Special Adjudicator could not accept "any part of his evidence unless there is some corroboration of it", the asylum seeker would be in considerable difficulty in satisfying the reduced onus on an asylum seeker to establish the necessary factual circumstances to make out his or her claim for asylum.

The court was careful not to say that this could not happen in any circumstances, but it did indicate that it would be an exceptional case where this would be possible because the fraudulent claim would create a barrier which, while not total, would be such that it would be difficult for the asylum seeker to overcome it.

Mr Nicol submits that because part of the appellant's evidence in the present case was accepted, the fact that other parts of his evidence was regarded as incredible did not put him in the same position as the appellant in the Mbanza case, or indeed the similar position in which the asylum seeker in the case of Senga found himself. Mr Nicol submits that the mistake made by the Tribunal in this case is significant because it involved the Tribunal treating the present appellant as though he was in the same category as the appellants in those two cases.

So far I would accept the approach adopted in the notice of appeal to which I have referred, the contents of which are repeated in an amplified form in Mr Nicol's skeleton argument, and have been advanced before us orally today. It is argued that the error which the Tribunal made was significant and one which could be properly categorised as involving an error of law on the part of the Tribunal which would justify this court interfering with the decision when it is appropriate to do so. However, Mr Kovats in his submissions on behalf of the Secretary of State, while not conceding that that is the position, has argued forcefully that in this case, when you examine the decision of the Tribunal, it is to be seen that the Tribunal made its own determination of the facts. He would submit that the Tribunal was entitled to come the conclusion that the decision of the Special Adjudicator was wrong and therefore should be set aside.

The relationship between the Tribunal and Special Adjudicators is primarily dealt with by the provisions of Section 20 of the Immigration Act 1971, although asylum appeals in general are dealt with by the Asylum and Immigration Appeals Act 1993, because of the provisions of Schedule 2 to the 1993 Act. Section 20(1) of the 1971 Act provides:

"Subject to any requirement of rules of procedure as to leave to appeal, any party to an appeal to an adjudicator may, if dissatisfied with his determination thereon, appeal to the Appeal Tribunal, and the Tribunal may affirm the determination or make any other determination which could have been made by the adjudicator."

The Section is in generous terms. There is a requirement contained in the rules for the leave of the Tribunal to appeal to be obtained. However, subject to this, the Tribunal has a wide ranging jurisdiction over Special Adjudicators. Some indication as to how that jurisdiction is intended to be exercised is provided by the rules which were in force at the time of this appeal, namely the Asylum Appeals Procedure Rules l996, which came into force on 1 September 1996.

The rules of procedure make it clear that, understandably, the makers of the rules are concerned with the delays which can occur because of the existence of the code of appeals which exist in relation to asylum matters. For example, rule 41 deals with an extension of time for appealing from the Secretary of State to the Special Adjudicator. Rule 41(2) provides:

"A special adjudicator shall not extend the time limit for giving notice of appeal except where it is in the interests of justice and he is satisfied that the party in default was prevented from complying with the time limit by circumstances beyond his control."

The latter words indicate that the would-be appellant has a heavy onus to surmount if he wishes to appeal but is out of time to do so.

More immediately relevant, rule 18(1) provides:

"Subject to rule 16, the Tribunal shall not adjourn a hearing unless it is satisfied that an adjournment is necessary for the just disposal of the appeal.

(2) When considering whether an adjournment is necessary, the Tribunal shall have particular regard to the need to secure the just, timely and effective conduct of the proceedings."

Rule 16 provides:

"Unless the time limit is extended under rule 41, every appeal under this Part shall be decided not later than 42 days after the date of service on the Tribunal of the appellant's notice of appeal."

Finally, I turn to rule 17(2), under the heading "Deciding an appeal", which provides:

"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."

This last provision is of significance, not only because it gives a clear steer to Tribunals that they should avoid remitting cases to Special Adjudicators, no doubt because such remission will involve delay, but also because it indicates that the Tribunal has, where possible, to conduct any determination which will enable it finally to dispose of an appeal itself.

Particularly when determining appeals brought where it is necessary to give consideration to the general situation in particular parts of the world, it is important for Tribunals, when appropriate, to give their views as to that situation, so far as relevant, to claims for asylum in that part of the world.

In administering the asylum jurisdiction, the tribunal (whether it be a Special Adjudicator or an Appeal Tribunal) has to consider not only whether the individual asylum seeker has the necessary subjective fear to be regarded as someone who is entitled to asylum, but in addition it has to be satisfied that that fear is well-founded. Whether or not that fear is well-founded involves applying an objective standard, a standard which will depend upon the state of affairs in that particular country as well as the circumstances of the individual asylum seeker.

It will be beneficial to the general administration of asylum appeals for Special Adjudicators to have the benefit of the views of a Tribunal in other cases on the general situation in a particular part of the world, as long as that situation has not changed in the meantime. Consistency in the treatment of asylum seekers is important in so far as objective considerations, not directly affected by the circumstances of the individual asylum seeker, are involved. In this case those comments have an application.

Following Laws J's decision in the case of Senga, the case which he was considering was remitted to the Tribunal. It was subsequently remitted and returned to the Special Adjudicator and then came back before the Tribunal. So far as persecution is concerned, the Tribunal gave careful consideration to the situation generally. The decision was made in the context of the facts of that particular case. This must always be remembered. However, consideration of those facts was dependent upon material placed before it from various bodies who were aware of the situation in Zaire at that time. The Tribunal's views as to those facts would be of assistance and provide useful guidance to other Special Adjudicators and other Tribunals who were faced with similar situations. The fact that one Tribunal comes to a conclusion on the facts before it does not mean that any other Tribunal is bound to come to the same decision, but any later tribunal is entitled to have regard to the views of a decision, such as that given by the Tribunal in the Senga case, irrespective of whether that tribunal is a Special Adjudicator or an Appeal Tribunal. No doubt it was for that reason that both the Special Adjudicator and the Tribunal in this case referred to the decision of the Tribunal in the Senga case and cited passages from the decision given in that case. In my view they were right to do so. The matters which had been decided in the Senga case were at least relevant to the decision which the Special Adjudicator and the Tribunal had to reach in this case.

In the passage of its decision in this case, which is criticised for containing the error of fact to which I have referred, the Tribunal said:

"As we see the situation in this appeal, the Respondent was found not to be credible, his whole story, of arrest, detention and escape, was disbelieved and, on the evidence, we find, [1] that the Special Adjudicator was correct in so finding, thus bringing the Respondent within what was held in Mbanza. [2] And, following Senga, as although the Respondent may well face interrogation on his return, such interrogation, (which, on the evidence in this case, the Secretary of State did not believe, which the Special Adjudicator did not believe, and which we do not believe), can only establish that the Respondent does not genuinely present a danger for the government of Zaire, as he is neither a prison escapee nor a deserter from the armed forces, nor an open opponent of the government. In which circumstances, therefore, he would not be of further interest to the authorities; and any interrogation, as such, would not amount to persecution."

Having cited that passage from the Tribunal's decision, it is necessary to make reference to one or two findings by the Special Adjudicator which are relevant to what I am going to say hereafter. The first is that the Adjudicator concluded that:

"In spite of the obvious poor human rights record in Zaire, I find that the Appellant has not suffered harm or injury of sufficient gravity to constitute persecution for a Convention reason in Zaire."

The second reference was her finding that she noted the appellant had been six years in this country and:

"I find he has a genuine dread and fear of returning to Zaire of interrogation and possible persecution."

I deduce from that finding that she was concluding that, notwithstanding that while in Zaire the appellant had not suffered anything which could be described as persecution, he still, nonetheless, had a genuine fear of possible persecution if returned there.

The third matter the Special Adjudicator concluded was that in the circumstances, in Zaire, there was a real possibility of a breach of the convention in that:

"....the security forces at the airport may impute political opinions to the Appellant, and that he therefore may suffer persecutory treatment."

As I understand that last finding this meant that, following the finding that she reached that the appellant had a genuine fear, that fear was well-founded and so the appeal was to be allowed.

Returning to the passage from the Tribunal's decision which I have cited, it seems to me that the only conclusion which it is possible to reach is that, as to that last finding of the Special Adjudicator, the Tribunal took a different view. The Tribunal was forming its own view that, on the facts of which it was aware and following the Senga decision, there was no danger which could be regarded as well-founded that the appellant would be subject to persecution. That conclusion was, in my view, fatal to the appellant's appeal in this case.

I fully take into account Mr Nicol's submissions that one has not only to look at the material which the Tribunal had before it, which did not depend upon its view of the credibility of the appellant but also to take into account its view as to what had happened to the appellant himself while in Zaire. As to the last matter, the Tribunal was not in a position to form any different view from that of the Special Adjudicator. Unlike the Special Adjudicator it had no opportunity to assess the credibility of the appellant. It therefore had to act upon the Special Adjudicator's view of that credibility and what happened to the appellant while in Zaire. As I have indicated, that view was not one which involved the rejection of the entirety of his evidence. The Tribunal was, therefore, in error in treating him as someone whose evidence had been entirely rejected. However in my judgment, having regard to the findings of the Special Adjudicator, that there was nothing which happened to the appellant while in Zaire which could be described as persecution, and also giving full weight to the other findings that she made as to what happened to the appellant when he was in Zaire, I am satisfied that even if the Tribunal had not made the error as to the credibility of the appellant, it would inevitably have reached the same conclusion. This is because, in effect, the Tribunal was saying that persons in the position of the appellant, whether as described by the Special Adjudicator or as described by the Tribunal, would not have a well-founded fear of persecution which would justify their non return to Zaire.

Accordingly, although as I have indicated I consider that the Tribunal made an unfortunate mistake as to the Special Adjudicator's decision, which was perhaps contributed to because that decision is not always easy to follow, the Tribunal came to a decision upon which it would not be right for this court to interfere on this appeal.

LORD JUSTICE POTTER:

I agree.

LORD JUSTICE BROOKE:

The Immigration Appeal Tribunal is a creature of statute. Its membership is set out in Schedule 5 Part II of the Immigration Act 1971. All its members are, in essence, to be qualified professional lawyers of at least seven years' standing in one of the countries which make up the United Kingdom. Parliament clearly intended its members to bring their legal expertise and, no doubt, the experience they accumulate during the period of their membership of the Tribunal into their determinations as the appointed appellate body in this field of specialist jurisdiction.

In contrast Adjudicators and Special Adjudicators are not obliged, as a matter of law, to have legal qualifications (see Schedule 5 Part I of the 1971 Act), although it is within the knowledge of the court that the modern practice is to appoint lawyers to perform these arduous duties.

It often occurs in asylum appeals that Special Adjudicators are asked to consider reports about conditions in the different countries to which asylum seekers may return. Sometimes different Special Adjudicators reach different conclusions on the same, or much the same, evidence. This is an unfortunate fact which has led appeals and applications in such cases to be pursued right up to this court in recent months.

In those circumstances the Tribunal may perform a valuable function if it decides in any given case to review all the reports available to it relating to a particular country over a particular period of time, so as to give helpful guidance to Special Adjudicators as to how they should approach that evidence in a future case. Under the experienced chairmanship of Professor Jackson, the Tribunal performed this function in the case of Senga , decided in December 1995. It read a large number of reports which related to the treatment of asylum seekers who were returned to Zaire in the years 1993 - 1995. It also watched a video film taken by English film director of an incident at Kinshasa airport during that period.

On all this evidence the Tribunal made four findings at page 16 to 17 of their judgment in Senga:

1.   A returned asylum seeker who arrived back in Zaire without a passport could expect to be questioned by the authorities.

2.   There was evidence that asylum seekers, known by the Zairean authorities to be such, were at risk of arrest and detention by the authorities on their return while the investigation was continued.

3.   The UNHCR's reports of February and July 1995 indicated that although asylum seekers were of particular interest to the Zairean authorities on their return, if following interrogation an individual was found to have provided manifestly unfounded and false claims to asylum, he would not appear to be of further interest to the authorities. On the other hand, those reports indicated that those suspected to be in contact with anti government elements, or who might in some way be associated with such elements, were at real risk of long periods of detention and associated treatment.

4.   This view was corroborated by a report from a Zairean human rights organisation called Voice of the Voiceless. This report indicated that once it was established that the returned asylum seeker did not genuinely present a danger for the ruling powers, there was no serious problem, but that if the person returning was a prison escapee or deserter from the armed forces he might be subjected to various forms of harassment varying from solitary confinement to torture.

In other words the Tribunal considered in Senga that the evidence before it showed that the category of returned asylum seekers who might be reasonably held as such to have a well-founded fear of persecution if returned to Zaire during the period covered by the reports before it, consisted of those who were suspected to be in contact with anti government elements, or who might be in some way associated with such elements, or those who were prison escapees or deserters from the armed forces.

These are not findings of law to be treated as binding authority. They were findings of fact on a substantial volume of evidence considered by a specialist appellate Tribunal in its area of specialist expertise and, as such, were to be afforded careful attention by Special Adjudicators who were invited to consider the same general evidence relating to the same country over the same period.

In the present case, the Special Adjudicator showed that she was aware of the Tribunal's decision in Senga, to which she referred twice. On her findings, the appellant did not fall into the category of returned asylum seekers identified by the Tribunal in Senga. Instead of reminding herself of the conclusions of the Tribunal in Senga, and then going on to consider whether on the facts as found by her this appellant fell into that category, or if he did not whether there was some other reason for holding that the appellant held a well-founded fear of persecution as a returned asylum seeker who fell outside that category, she appears to have gone straight to passages in some of the documents which were before the Tribunal in Senga as if the judgement in Senga had never been delivered.

This, in my judgment, was the wrong approach, since it ignored the important public function of the Immigration Appeal Tribunal in guiding special adjudicators into adopting a consistent approach to frequently occurring factual issues of this kind on an occasion when it sought to perform that function.

For the reasons given by the Master of the Rolls, I agree that the Tribunal was justified in the conclusion it reached on this appeal and the appeal should therefore be dismissed.

Order:

Appeal dismissed. Legal aid taxation of appellant's costs. Respondent's costs not to be enforced without leave of the court.

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