R v. Immigration Appeal Tribunal, Ex parte Nalokweza

R v IMMIGRATION APPEAL TRIBUNAL
ex parte NALOKWEZA

CO/1047/95

25 November 1995

Queen's Bench Division: Hidden J

Adjudicator-determining appeal remitted for hearing de novo-first adjudicator had concluded appellant had been credible-that finding not criticised by Tribunal in remitting case-no oral evidence led before second adjudicator-whether second adjudicator on analysis of evidence entitled to conclude appellant not credible-whether bound by credibility findings of first adjudicator.

Appeal-refusal of leave to appeal by Tribunal-whether short form of reasons adequate.

The applicant seeking leave to move for judicial review was a citizen of Uganda. He had been refused asylum by the Secretary of State. He appealed. The special adjudicator heard evidence from the applicant: she concluded he had been credible as to his account of material past events. She allowed the appeal. The Secretary of State successfully appealed to the Tribunal on the ground that the adjudicator had not fully considered the likelihood of persecution in the future. The Tribunal saw no reason to disagree with the adjudicator's findings on credibility but remitted the case for hearing de novo. When the case went before the second adjudicator he heard no oral evidence. He carefully considered the evidence before him however and concluded that the applicant had not been truthful. He dismissed the appeal: the Tribunal refused leave to appeal.

In challenging that refusal of leave to appeal, counsel argued that it had not been open to the second adjudicator to make adverse findings on credibility; he was bound by the findings in that regard of the first adjudicator, the more so because of the Tribunal's comments. He further argued that the reasons given by the Tribunal for refusing leave to appeal had been inadequate.

Held

1. The Tribunal had remitted the case for hearing de novo. That meant that there was a fresh hearing and the second adjudicator could not be bound by any of the findings of the first adjudicator.

2. All the grounds put to the Tribunal were adequately covered in its short form of refusal.

R Scannell for the applicant

S Kovats for the respondent

Cases referred to in the judgment:

Rohima Bibi and ors v Entry Clearance Officer Dhaka [1986] Imm AR 103.

Mohammad Karim v Visa Officer Islamabad [1986] Imm AR 224.

Save Britain's Heritage v Number 1 Poultry Ltd [1991] 1 WLR 153; [1991] 2 All ER 10.

R v Immigration Appeal Tribunal ex parte Omar Ali [1995] Imm AR 45.

Gnanavarathan and Norbet v A Special Adjudicator [1995] Imm AR 64.

R v Immigration Appeal Tribunal ex parte Mehmet YaZik [1995] Imm AR 98.

R v Secretary of State for the Home Department ex parte Kabuiku (unreported, QBD, 24 February 1995).

R v Secretary of State for the Home Department ex parte Bamra (unreported, QBD, 24 February 1995).

HIDDEN J: In this application for judicial review the applicant seeks an order of certiorari to quash a decision of the Immigration Appeal Tribunal of 13 February of this year. That decision refused him leave to appeal against the dismissal by a special adjudicator of his appeal against the Secretary of State's refusal of his application for asylum on 1 December 1993.

The case is unusual in that it concerns an appeal to the Immigration Appeal Tribunal from the decision of a second special adjudicator, since a decision by an earlier special adjudicator in the applicant's favour had been successfully appealed by the Secretary of State to an Immigration Appeal Tribunal, which had in July 1994 remitted the matter to be heard de novo before a different adjudicator.

It is pertinent to point out that the decision of the first special adjudicator, Mrs Weinberg, had included favourable findings as to credibility on the part of the applicant, which the decision of the second adjudicator, Mr O'Brien Quinn, did not, a point which is central to the main argument before me.

Put simply Mr Scannell submits that it is incumbent on the second special adjudicator to take cognisance of the decision of the first adjudicator who had seen the applicant and had made positive findings on his credibility. By way of a second submission he says that on the facts of this case it was incumbent on the Tribunal to do more by way of reasoning than it did.

The applicant is a Ugandan national who arrived in the United Kingdom on 29 May 1993 and claimed asylum on arrival.

The Secretary of State, in a decision letter of 1 December 1993, refused that application. The applicant appealed that decision to the first special adjudicator, who, in a determination dated 6 May, found the applicant to be a credible witness and allowed the appeal on the basis that she was satisfied that he had demonstrated a reasonable degree of likelihood that he would be persecuted for a Convention reason if he were returned to Uganda.

On 19 May 1994 the Secretary of State appealed. On 24 May 1994 leave to appeal was granted. On 24 June 1994 the appeal was heard. On 8 July 1994 the appeal was allowed and the matter was remitted for a hearing d, novo before an adjudicator other than Mrs Weinberg.

In allowing the appeal the Tribunal concluded that the adjudicator was entitled to believe the applicant and that it could not be argued that the belief in the applicant's story was contrary to other evidence. At the hearing on 17 January of this year before the special adjudicator, Mr O'Brien Quinn, the applicant did not give evidence. Later in January the appeal was dismissed by the special adjudicator, who made trenchant adverse credibility findings as a result of a close scrutiny of what the applicant had stated at the previous hearing and at interview. In February 1995 the applicant sought leave to appeal and on 13 February the Tribunal dismissed that application. That is the history of these proceedings until now.

It is noteworthy that the Secretary of State's decision letter at page 34 of the bundle came to a conclusion on the basis of what the applicant had said in his May 1993 interview about spending three months in Kenya whereas his passport and air ticket only showed he was in transit and secondly, the fact that the applicant was unsure and unclear of the date of his father's arrest and death. The respondent considered "that your account of your circumstances generally lacks credibility".

On the other hand, the first special adjudicator on appeal from that decision in her determination and reasons "found the appellant a credible witness, a quiet somewhat bewildered man who only at one point when after having described now a lieutenant had helped him to escape he broke down". She also found that "in giving replies in response to detailed questions of how he got through the airport and on to the 'plane, there was no hesitation in his replies". She said that "having considered the totality of the evidence before me and having found the appellant credible I find the authorities could well have wished to question the appellant bearing in mind the activities of his father and the fact that he had worked in the shop with his father".

She concluded that she was satisfied that the appellant had demonstrated a reasonable degree of likelihood that he would be persecuted for a Convention reason if he was returned to Uganda and she was satisfied that he had no knowledge of the help, if any, which the appellant's father was giving to rebel forces in Uganda.

The Immigration Appeal Tribunal, dealing with the application for leave to appeal from the first special adjudicator made by the respondent, found as to credibility that "the adjudicator was entitled to believe the applicant and it cannot be argued that the belief in the applicant's story was contrary to other evidence before the adjudicator". Because the adjudicator found the applicant to be a credible witness, the Tribunal, therefore, approached the case on the basis that the applicant's evidence "accurately reflect the facts that have occurred".

The issue for the Tribunal was whether the adjudicator, having found the applicant to have been treated as he said he was, then simply read the past into the future and found that there was a reasonable likelihood of persecution because of the treatment he had received in the past. The Tribunal's reason for remitting the matter to the second special adjudicator was that "the applicant's case that there is a reasonable degree of likelihood of future persecution of the same type as that which has occurred in the past required a positive assessment as to whether there is a reasonable degree of likelihood of repetition".

The Tribunal said "in other words although the applicant may well have been in fear of like events occurring in the future to those which had occurred in the past it must be shown that fear is well-founded in the sense that there must be a reasonable likelihood of the matters recurring".

In 'the end, the view of the Tribunal was that it was not shown that the adjudicator assessed that reasonable degree of likelihood of events recurring on the whole of the evidence before her and they added "we have to say arguably she gave undue weight to the letter produced at the hearing". It is not necessary for me to go into the contents of that letter.

The applicant, therefore, had at this stage a favourable finding as to credibility in front of the special adjudicator which had been endorsed by the Tribunal. The matter was only being sent back by the Tribunal to a second special adjudicator because of the Tribunal's decision as to the first adjudicator's approach to future events and to the weight given to that letter.

Before the second special adjudicator the hearing took a different form from that before the first adjudicator. At the start of the proceedings counsel for the applicant informed the adjudicator that he would not be calling the applicant to give evidence and would rely upon the evidence given by him as set out in the record of proceedings at the original hearing before Mrs Weinberg. Thus, Mr O'Brien Quinn heard counsel in argument and submissions on the main points upon which the Tribunal had ordered the rehearing.

The adjudicator reminded himself of the reasons for the ordering of a hearing de novo and then said at page 89:

"However, while I must, obviously, take account of the reasons given by the Tribunal for its decision, I must hear this case de novo, and make my decision on the facts, evidence and submissions made before me, bearing in mind Patel (7697) Bibi [1986] Imm AR 103 and Oamar-Uz-Kaman (8868). In this connection, and in view of the appellant's decision not to give evidence I ascertained from Mr Acheampong and Mr Harper that they accepted the situation that I could rely upon the record of the previous proceedings and make any finding necessary for the decision of this appeal, on the basis of that record."

He later went on to consider the evidence and said at page 90:

"I have accordingly carefully examined the evidence before me and, in the first place, having considered the appellant's evidence at interview and having compared it with that which he gave at original hearing, with regard to the activities of the appellant's father, I find that I am not satisfied that the appellant has been entirely consistent in his story. At his interview, in reply to question 32, he never once said that his father had been supplying arms to the rebels or that he was aware that he was, but said that whatever his father had been doing had been going on for a long time, that he had seen a number of guns on one particular unspecified date, had asked his father about that but had been told to concentrate on the loading. However, in evidence before the special adjudicator, he said that his father had been supplying goods to the rebels fighting his own army, but in reexamination, he said that he had suspected his father was not doing the right thing, but that he did not know. Looking at that evidence, and at the evidence generally, on this aspect of the case, and taking into account Mr Acheampong's submissions, I find that I am not at all satisfied with the appellant's evidence that his father was smuggling guns or arms to the rebels in the north. In my considered opinion it is most unlikely that the appellant's father, if he were a lieutenant in the NRA, living and operating far from the area where the rebels were fighting, would become involved in gun running and expose himself to be investigated and possibly cashiered from the army, if not killed."

He found the appellant's evidence to be contradictory at one stage and said at page 9 1:

"Having weighed up the evidence on this whole aspect of the matter, and using the Sivakumaran and Kaja standard I find that the appellant's evidence is so vague and contradictory that I do not believe that he has

been telling the truth, and I find him not to be a credible witness."

Later, on the question of when the applicant's passport was issued and whether the applicant was in custody at the time it was so issued, he said at page 9 1:

"I have given this evidence the most careful consideration, and I find that I am not satisfied that the appellant has been telling the truth, as I find it very difficult to accept that the passport would have been issued 12 days before the appellant signed it, as if the lieutenant had to use bribery to get the passport he would have made sure that everything in the passport was in order particularly its date of issue. In my considered opinion, I find, as a fact, that the passport was issued on the date stated on it and that the appellant was not in custody at that time. If, therefore, he was not in custody, where was he? And, further, he never accounted for the lapse of time between 26 May and 29 May 1993."

I pause to say that in relation to that finding there is a discrete reference to it in around six of the eventual grounds that were before the Tribunal in the decision impugned in this case. As to the assistance which the applicant claimed Lieutenant Mujure gave him, the adjudicator found the applicant:

"Was not telling the truth as to what he claimed the lieutenant did and I find him not to be a credible witness. In my considered opinion it is a most unlikely story and not one worthy of belief. I find that it is not true and I find that the appellant is not a credible witness."

The adjudicator finally concluded that the applicant had not established there was a reasonable chance, substantial grounds for thinking, or a serious possibility that he would be persecuted for a Convention reason were he to be returned to Uganda. The adjudicator, accordingly, dismissed the appeal.

The applicant appealed against that decision to the Immigration Appeal Tribunal for leave to appeal. The hearing was on 14 February 1995 before Mr Maddison. His determination set out 11 grounds of appeal and continued in these words:

"No further grounds have been submitted. The representatives must understand it does not assist for grounds in a barely legible form to be submitted. Such grounds should be typed. The adjudicator heard no oral evidence. No witnesses were led before him. The adjudicator appears to have considered all the evidence before him, properly directing himself to the proper standard of proof. The adjudicator came to clear adverse findings of fact after giving to each element in the evidence the weight he considered appropriate: the Tribunal has read all the papers on file. It considers that the conclusions of the adjudicator are fully supported by the evidence. There is no misdirection in law. In the opinion of the Tribunal this is not a proper case in which to grant leave and such leave is refused. "

Mr Scannell, for the applicant, attacks that finding on the basis that there was a clear obligation on the Tribunal to give reasons which had to be proper, intelligible and adequate. He relied in support of that proposition on Lord Bridge's words in Save Britain's Heritage v No I Poultry Ltd [1991] 1 WLR 153 at 166. He relied further in support of his submissions on two unreported decisions of Brooke J in granting leave to apply for judicial review. Those were both decided on Friday 24 February of this year and they are the cases of R v Secretary of State for the Home Department ex parte Kabuiku and ex parte Bamra.

Mr Scannell submitted that both cases were cases involving refusal of leave by Mr Maddison, the Tribunal in this case, and his case was that the grounds of appeal manifestly required more by way of reasoning than the pro forma terms of the refusal. He said that his grounds of appeal, like those in Kabuiku, included an assertion that the arrest of the applicant's father was on the basis of imputed political opinion and he conceded very frankly that the way in which he was submitting that such an assertion appeared in his grounds of appeal was that it appeared "albeit somewhat exiguously expressed", as he put it, in those grounds but he sought to make the point nonetheless.

In Kabuiku Brooke J dealt with the point on imputed political opinion in these words at page 5C to E:

"In other words, this was application for the Immigration Appeal Tribunal to consider a point which was in a sense a freestanding point, regardless of whether there was a finding that he had previously been treated badly for political reasons, that he would suffer persecution as a perceived opponent of the Government if he returned, regardless of whether or not he had been persecuted previously."

Miss Webber had explained that this is a point sometimes referred to as being persecuted for "imputed political opinion". At 6F Brooke J looked at the decision which was then attacked. He said:

"I now look at the decision of the Immigration Appeal Tribunal to see how the learned Chairman dealt with this particular submission. He recited at length in his judgment all the grounds of appeal which he received. He then, in a four paragraph judgment, referred to the applicant's oral evidence and he found the events on which the claim for asylum was based in no way to be credible. He then said the adjudicator appeared to have considered all the evidence before him, properly directing himself as to the proper standard of proof, and referred to the clear adverse findings. He then said:

'The Tribunal has read all the papers on file. It considers that the conclusions of the adjudicator are fully supported by the evidence, bearing in mind his assessment of witnesses he heard and the adjudicator's assessment of the oral evidence. There is no misdirection in law. The adjudicator accepted that the applicant may have been imprisoned and ill-treated in Zaire, but did not accept that it had been shown his imprisonment was in any way linked with activity which might found a claim for asylum. Likewise the medical evidence was not linked to any such experience.'

Those, he said, were conclusions to which the adjudicator, having seen a witness, was entitled to come. Read as a whole the determination is a full, fair and reasoned review of the applicant's case."

But Brooke J then went on to say this:

"I am quite unable to find in that very short judgment any consideration of the point to which I have referred in paragraph 5(a) of the grounds. Although the teamed Chairman had said in standard form, 'the Tribunal has read all the papers on file', he does not deal with the complaint made in paragraph 5(a), that the adjudicator failed to deal properly with a point based on imputed political opinion. It is difficult to see that this court could be satisfied that he had considered, in the context of that submission, the additional evidence which the applicant was seeking to put before him, which in the exercise of the Tribunal's discretion they might or might not decide to admit under their very general powers to admit further evidence under their rules of procedure."

He finally said at page 8H:

"On that limited ground I consider that this is a case in which it is arguable that the learned Chairman ought to have granted leave."

Mr Scannell sought to argue that that case was an exact parallel with the instant case and that the imputed political opinion founded in Kabuiku was, in fact, raised in his ground 11. Despite the shortcomings of that paragraph it is right that I do read paragraph 11 at this stage. It said this:

"The adjudicator's conclusion that the arrest of the appellant's father in consequence of a lawful investigation into a criminal act is contrary to the well-documented perception by Ugandan authorities of such activity as a sign of subversion and the expressed judicial authority to exclude it out of consideration would be contrary to the spirit of the Convention."

A mere reading of the paragraph is sufficient to explain why Mr Scannell was forced to concede that, if the point was raised in that paragraph 11, it was "somewhat exiguously expressed". As to Bamra Mr Scannell relied on a passage from the judgment of Brooke J at 4D which reads:

"This point was taken on the application for leave to appeal to the Immigration Appeal Tribunal. It was not taken with the clarity with which Mr Owen Davies has deployed it in this court, but Mr Robin Tam very fairly takes no point on that. I do not find then. in the very short judgment of the learned Chairman of the Appeal Tribunal, that he drew his attention to the particular point that was being raised. He dismissed the application for leave to appeal in very general terms, in terms which I find familiar from other adjudications by that particular learned Chairman, and in these circumstances, in my judgment, fairness requires me to grant leave to apply for judicial review of the decision of the learned Chairman."

Finally on his point on credibility, Mr Scannell said that in making good the submissions about the failure of Mr O'Brien Quinn to deal with the Tribunal's endorsement of the first adjudicator's acceptance of the applicant's credibility, he relied on the observations of Sedley J in R v Immigration Appeal Tribunal ex parte Ali [1995] Imm AR 45 and 47 that the dicta about the need for the most anxious scrutiny need only apply now to the appellate process. He says in the instant case the applicant's account had been believed in a manner specifically endorsed by the Tribunal yet the applicant now faced removal on the basis of disbelief without any cognisance whatsoever being taken of such background.

In additional submissions supporting his skeleton argument, Mr Scannell said that there was no authority dealing with the appropriate approach to a remitted asylum case. Certainly none of the Tribunal authorities relied on by the respondent were asylum cases under the 1993 Act. Under the framework of the Asylum and Immigration Appeals Act 1993 it was manifestly in the interests of justice that there be consistent justice (see, for example, albeit in the context of third country appeals, the decision of the Court of Appeal in Gnanavarathan v A Special Adjudicator and Norbet v A Special Adjudicator [1995] Imm AR 64).

Mr Scannell referred me to the case, but I do not find it of particular help in that it is dealing with a situation where different adjudicators come to different determinations in relation to third country questions.

Mr Scannell said the applicant's case here was remitted for hearing de novo. The basis of the remitting was quite clear and indeed Mr O'Brien Quinn heard submissions from the applicant's representative on such basis, but appeared to have given little indication of the possibility of his going behind the Tribunal's endorsement of the first adjudicator's approach to credibility.

Mr Scannell said it could not be fair or in the interests of justice in an asylum case for an appellant to lose all, or indeed, any benefit, of a positive assessment of credibility where such assessment was not able to be successfully challenged on appeal to the Tribunal. He submitted that on the facts of this case the proper course at the very least required the applicant to be given some benefit of the positive view of his credibility reflected by the aforementioned background.

He submitted on the facts of this case that the adjudicator's approach should have been similar to that of the Court of Appeal where the judges have made findings of fact, that is to say he should be slow to interfere with such findings and Mr Scannell referred me to order 59/1/55 of the Supreme Court Practice. He said, finally, that Mr O'Brien Quinn erred in failing to take any cognisance of the positive assessment made by Mrs Weinberg on the basis of having seen and heard the appellant.

Mr Kovats, for the respondent, submitted that Mr O'Brien Quinn had correctly considered the evidence that had been given before the first adjudicator, Mrs Weinberg, and also the reasons of the Immigration Appeal Tribunal and that consideration of those matters were set out in paragraphs two, four and six of his determination.

Mr Kovats submitted that Mrs Weinberg's opinion was not a relevant consideration for Mr O'Brien Quinn since it was not evidence and the matter had been remitted for a hearing de novo before a fresh adjudicator. That was inconsistent with using the first adjudicator's opinion as a relevant consideration, not least because it would be impossible to know what weight to give to the first adjudicator's opinion, which the Tribunal had found to be flawed. If the first adjudicator had made adverse findings of credibility, asks Mr Kovats, against the appellant, would the appellant have been submitting that the second adjudicator would be entitled to rely on those findings?

Mr Kovats said the authorities, some of which Mr O'Brien Quinn referred to, support his approach and he referred me to Bibi v Entry Clearance Officer Dhaka reported in [1986] Imm AR 103, in which it was held that when an application is remitted for hearing de novo the adjudicator rehearing the case is entitled to have regard to the record of the evidence given in previous proceedings.

He also referred me to Karim v Visa Officer Islamabad reported in the same volume at page 224 where Bibi was followed and it was held that the adjudicator should have regard to the record of proceedings in the earlier hearing, but should not have regard to the earlier determination.

Mr Kovats submitted that Mr O'Brien Quinn properly assessed the credibility of the applicant's account by examining the evidence relating to his experiences and Mr O'Brien Quinn was clearly aware of the Uganda context. He said that it was not necessary for the Tribunal to deal in its determination with all the grounds of appeal individually. The points were sufficiently identified by the Tribunal's endorsement of the special adjudicator's determination. For that submission he relied on the authority of R v Immigration Appeal Tribunal ex parte Yaziki [1995] Imm AR 98 at page 99 where Auld J said this:

"Mr Soorjoo also complains that the Immigration Appeal Tribunal did not give proper reasons for its refusal of leave to appeal. He says that it adopted a standard formula, which is seen in many of these cases, and if it had not rehearsed the grounds of appeal, one would not know to which application for leave to appeal it related.

The first point to observe is the one which was made by Mr Burnett, that the Immigration Appeal Tribunal was deciding whether to grant leave to appeal, not considering a substantive appeal. In such a proceeding it is not necessary for the Tribunal to refer expressly to each individual ground advanced before it, certainly not in most cases where the points of law are clearly identified in the adjudicator's determination and ruled on by him, and where it can clearly be stated, without itemising them, that the various points sought to be advanced by way of appeal are unfounded. It is enough generally for the Tribunal to say simply they can see no error of law in the adjudicator's determination. It may be, where the proposed grounds of appeal are particularly elaborate and numerous, or call for some special line of reasoning, that the Tribunal might find it appropriate to go beyond a short statement that it finds no point of law worthy of appeal. But that should not be necessary in most cases."

Mr Kovats then turned to deal with the various 11 grounds of appeal set out in the determination of the Tribunal. He was in so doing seeking to answer the argument Mr Scannell had originally put forward in seeking to assert that all 11 of his numbered grounds set out in that determination at page 95 were viable points.

It is sufficient for the purpose of this judgment to point out that in reply Mr Scannell was forced to concede, after Mr Kovats' analysis, that he could only sensibly submit that five, six, seven and eight should have been considered in more detail by the Tribunal. He had first asserted that ground six in particular was made good on the basis of what Mr O'Brien Quinn erroneously stated in his decision, the matter about the dates between May 26 and 29 to which I have already referred. Grounds five, six, seven and eight of the notice are as follows:

"5.The adjudicator misdirected himself on the evidence concerning the date on which the passport was issued. Passports are not necessarily signed on the same date as issued by the passport holder hence the adjudicator's conclusions that the appellant could not have been in custody on 12 May 1993, on the date of the issue of the passport is untenable.

6.The appellant did give an account of what transpired between 26 and 29 May in accordance with the questions asked thereon.

7.The necessity (sic) of the lieutenant's concoction of the false identification for the appellant as an employee for Kamwokya was to help him avoid detection through the road blocks from his hideout to Entebbe airport.

8.The adjudicator's views of the dealings between the appellant and the lieutenant do not take proper account of the corruption and nepotism in Uganda and the way of normal standards of probity and accountability have been undermined in that country. the adjudicator's approach wrongly imports standards of efficiency and discipline which are normally expected in this country, into what prevails in Uganda, though such high standards of moral rectitude are sometimes lamentably undermined in this country."

The answer to those submissions said Mr Kovats was that none of the grounds were such that leave should have been granted. He submitted that the adjudicator was entitled to rely on the applicant's changing evidence as to whether he was aware that his father was supplying rebels and was entitled to find it implausible that his father would have been supplying rebels for a long time when the local government used to ask what was going on.

Equally, the applicant did give differing accounts of the circumstances of his father's arrest. In his evidence before the first adjudicator that was not addressed by Mrs Weinberg in her determination and is a further illustration of why Mr Kovats says it would be wrong to rely on her findings of credibility.

Dealing with the specific matters in paragraph five, six, seven and eight Mr Kovats conceded that the applicant did give an account of the events between 26 and 29 May 1993 which is not what the special adjudicator found, when though he made that concession he pointed out that the explanation of those four days was, in fact, one day short. Mr Kovats submitted that the adjudicator was entitled to find on the evidence that the applicant had given no satisfactory explanation of the false Kamwokya identity and was entitled to find the conduct of Lieutenant Mujure implausible.

In relation to all the other grounds of appeal Mr Kovats submitted that they were matters in relation to evidence that the adjudicator was entitled to find.

Those then were the contrary contentions on either side which I have to resolve.

At the end of the day Mr Scannell's main point remained that in the special circumstances of this case it was incumbent on the second adjudicator to take cognisance of what the first adjudicator had said, she having seen the applicant and made positive findings on his credibility.

In the course of argument, I put to Mr Scannell the question, "What else should the second adjudicator have done?" Mr Scannell was not able readily to answer that question, but he eventually indicated that Mr O'Brien Quinn might have said either to himself or at the hearing itself something to the effect that, "I am going to be very slow to differ from the view taken by the first special adjudicator". To my mind Mr Scannell's difficulty in answering that question epitomises the problem in this case and in any case where there is a hearing de novo. I do not think that the provisions of order 59/l/55 to which I was referred and the cases dealing with the Court of Appeal approach to cases where the trial judge is alleged to be wrong in his decision as to the facts, assist me.

The whole point about the Tribunal's order was that it was for there to be a second hearing de novo. The Tribunal had power under the rules to remit the matter either to the same adjudicator who had heard the first appeal or to "some other adjudicator". The Tribunal made the decision that the remittal should be to another adjudicator. No complaint is made of that decision. In those circumstances the hearing was bound to be a fresh hearing and the fresh adjudicator could not be bound by the findings of the first adjudicator.

At the hearing before the second adjudicator there were present the applicant and his counsel. A decision was freely taken by the applicant that he would not give evidence, but would rely on his evidence set out in the record of the first appeal. Again, no criticism is directed to that decision nor indeed could it be in view of the authorities of Bibi and Karim. In those circumstances it seems to me that, however much one might sympathise with an applicant who once had a positive credibility finding and later lost it, the decision of the Tribunal to order a second hearing de novo is one that left the second adjudicator completely free to come to findings that were entirely his own. Those findings were against the applicant's credibility, but there was nothing unlawful, irrational or procedurally improper about the second adjudicator being able to come to such conclusions. That ability is a necessity of a hearing de novo. It follows that looking at this case with the anxious scrutiny which I must afford it, Mr Scannell's argument fails.

His second submission, that on the facts of this case it was incumbent upon the Tribunal to do more by way of reasons than it did equally, in my judgment, must fail. I remind myself of the decisions by Brooke J at the leave stage in Kabuiku and Bamra in relation to decisions of the instant Tribunal, Mr Maddison. There were not, however, in the instant case any freestanding arguments of the type which it was arguable at the leave stage that the Tribunal had failed to consider in Kabuiku, despite Mr Scannell's arguments in relation to his paragraph 11 of his grounds.

Equally, in relation to the other ten grounds set out in the notice of appeal, they were satisfactorily dealt with in the decision of the Tribunal. They were essentially complaints as to the adjudicator's findings on the evidence. It is true that in relation to the sixth ground the applicant had, in fact, given an account of what transpired between 26 and 29 May and the adjudicator's finding that he did not can therefore be criticised on that basis. However, the explanation which the applicant gave, in fact, missed out a whole day. More important than that, however, it is in my view, in any event, inconceivable that there could have been any difference in the eventual finding had the adjudicator found fault only with one day rather than with four.

I am satisfied that there is no reasonable possibility that this point had a decisive influence on the decision of the second adjudicator.

I have to conclude, therefore, that the reasons given by the Tribunal were proper and adequate reasons. I remind myself of what was said by Auld J, as he then was, in Yaziki and the passage that I have previously cited. At the end of that judgment he said:

"I have looked at proposed grounds of appeal here to see whether they called for any more reasoning by the Tribunal in expressing its decision to refuse leave. The main ground of law on which Mr SoorJoo relies, in respect of which I have found against him, is adequately dealt with by the Tribunal's decision. There is no misdirection in law."

Auld J then went on to look at the other matters and said this:

"The other matters set out in the proposed grounds of appeal are barely matters of law at all. As is so often the case in applications for leave to appeal to the Tribunal, they are matters of fact, criticisms of the adjudicator's findings of fact dressed up as points of law. I see no reason, in the circumstances of this case, for the Tribunal to have said any more on this refusal of leave. Accordingly, the application is refused."

For the same reasons, when looking at the decision in this case, I am satisfied that those words are equally applicable to the case before me. It follows that this application must fail.

Application dismissed

Solicitors: B M Birnberg & Co, London SE1; Treasury Solicitor

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