R v. Secretary of State for the Home Department, Ex parte Ahmed Aissaoui
- Author: High Court (Queen's Bench Division)
- Document source:
-
Date:
11 November 1996
R v SECRETARY OF STATE FOR THE HOME DEPARTMENT
ex parte AHMED AISSAOUI
CO/1391/96
11 November 1996
Queen's Bench Division: Collins J
Asylum-appeal-dismissal-Tribunal had remitted case for hearing de novo-second adjudicator had read the determination of first adjudicatorwhether improper for him to have done so-whether desirable for previous determination to be removed from file.
The applicant for leave to move for judicial review was a citizen of Algeria. He had been refused asylum by the Secretary of State. He had appealed. This appeal had been dismissed by a special adjudicator. On appeal to the Tribunal the appeal was allowed to the extent that it was remitted for hearing de novo by another adjudicator. The second adjudicator recorded in his determination that the determination of the first adjudicator had been on file and "I had the advantage of having perused it". An application for leave to appeal to the Tribunal from that second determination was refused.
Counsel submitted that it had been improper for the second adjudicator to have read the determination of his colleague.
Held:
1. There was no reason in principle why the second adjudicator should not have read the determination by the first adjudicator, when a case was remitted for hearing de novo, provided he did not allow it in any way to influence the decision he had to make on a fresh consideration of the whole case. The phrase used by the adjudicator was unfortunate but there was no evidence in the determination that the adjudicator had been influenced by the earlier determination.
2. It would however be desirable for a previous determination to be removed from the file.
Miss N Finch for the applicant
Miss L Giovannetti for the respondent
No cases are referred to in the judgment
COLLINS J: This is a renewed application by Ahmed Aissaoui for leave to move for judicial review of a decision of the Immigration Appeal Tribunal refusing him leave to appeal against the dismissal of his appeal to a special adjudicator against the refusal of the Secretary of State to grant him leave to remain in this country on the basis that he was seeking asylum.
The decision in question was dated 7 March 1996. The applicant is an Algerian national who was born on 20 April, 1965. He arrived in this country on 22 October 1994 as a stowaway on a ship which arrived at North Shields.
He applied for asylum upon his arrival. By letter of 9 November 1994 the Secretary of State refused his application for asylum. The Secretary of State said in that letter:
"The basis of your claim was that you feared persecution from the FIS in Algeria because you were a Government supporter. You claimed that if you returned to Algeria you would be forced to either kill or be killed because of the political situation there. You further said that your brother, a police officer, was killed by FIS militants in November or December 1993. The Secretary of State has noted your fear of persecution from the FIS, but considers that it would be reasonable to expect you to seek and receive protection from your own national authorities who remain in control in Algeria. He considers therefore that you cannot be regarded as a refugee under the terms of the 1951 Convention.
"The Secretary of State further noted that you had not been in any way involved in politics in Algeria and that you had never been threatened by FIS supporters either directly or indirectly. He therefore does not find it credible that you would come to the attention of the FIS.
"Your brother was killed by Islamic militants in the course of his duties as a police officer. The Secretary of State is not satisfied that you could have demonstrated this would have a bearing on your position as you are not, nor have ever been, employed by the Algerian security forces."
The applicant himself had, in fact, left Algeria and gone to work, it would seem possibly illegally, in Italy for a period of time and following that had returned to Algeria. Now unfortunately his family, that is to say his mother and younger brother, were killed in an earthquake in Algeria. His family home was destroyed and his father apparently was in hospital. That meant that there was nothing left for him in Algeria. He had an elder brother who was a policeman and was killed at the end of November 1993 by the FIS. In addition his uncles are members of their representative local councils and government supporters. He himself, however, was not in any way politically active.
He accepted that he had never come to the attention, so far as he was aware, of the FIS or any terrorist organisation which acted on its behalf. It is noteworthy that in one of the answers that he gave to the questions put to him in the interview held to see whether he should be granted asylum he said:
"My eldest brother was killed by the Islamic group first, I do not fear that will happen to me."
It is fair to say that that was to some extent contradicted in material that he put before the adjudicator.
He was asked also:
"Have you ever suffered any threats or persecution through your brothers or family indirectly?"
The answer to that was: "No."
He appealed against the refusal. The appeal was heard by a special adjudicator at Leeds, Mr. Parkes and his appeal was dismissed on 3 August 1995. He applied to the Tribunal for leave to appeal against that decision; the appeal was allowed and the Tribunal directed that there should be a fresh hearing, what is described as a de novo hearing, before a fresh adjudicator. That decision was given on 5 October 1995. Essentially the reason behind that was this; Mr. Parkes had referred to the background of the case, had referred to the brother who had been killed and had gone on:
"It seems to me that anyone can be at risk in a country where there is terrorism. The example in the report [that is to say the Amnesty report that was put before him] is an attack upon relatives of a serving gendarme. That sort of attack must surely be more likely than one directed at the brother of a now long dead policeman."
That passage was said to contain two errors.
First of all, "long dead" was a misdescription of the position because by the time that the adjudicator was hearing the matter the brother had been dead for less than two years. Secondly, there was an error in the comparison with the events in the report because that was concerned with the attacks on a retired gendarme.
The Tribunal decided that the matter had to go back on the basis that where an adjudicator had erred in describing factual evidence the determination could only be upheld if those errors were shown to be irrelevant to the conclusion, and that could not be said for certain, and therefore the matter should be reconsidered.
So it was that it came again before the second special adjudicator, Mr. Grewal, on 31 January of 1996. He too dismissed the appeal and the Tribunal refused an application for leave from that determination.
Essentially, there are two grounds raised, although on analysis they really come down, as Miss Finch says, to one, which has two parts to it. In the course of his determination the adjudicator referred to the background and he said:
"The appellant's appeal was heard by my fellow special adjudicator Mr. Parkes at Leeds and his determination was delivered orally on 4 August 1995. A copy of the determination is contained in the file and I had the advantage of having perused it. Mr. Parkes dismissed the appeal in this case on 3 August 1995."
He then referred to the appeal to the Tribunal and said that the matter had been remitted for a hearing de novo before him.
Miss Finch relies on the sentence where he says he had had the advantage of having perused the determination. She says that he should not have read it at all and the way he has expressed himself suggests that he has been or may have been influenced by it.
Reference is then made in the grounds to the Amnesty report and to a suggested failure by the adjudicator properly to have regard to that report. It is said that he does not indicate whether he accepted or rejected what was contained in that report and it is not clear whether the appeal has been dismissed on the basis that the position is not as Amnesty says or because even if the position is as Amnesty says, the applicant has not shown a genuine fear of persecution.
In the course of his adjudication the adjudicator indicate that he had clearly in mind the background. He said, in terms, that knowledge of conditions in the country was an important element in assessing the appellant's credibility and it was for him to assess the validity of his evidence and the credibility of his statements. He then went on to enumerate nine separate matters which he said that he had taken into consideration, which led him to decide that he was not persuaded that the applicant had a genuine fear of persecution.
At the end of those he refers, as he puts it, to himself having carefully perused all the documents in the file, particularly the appellant's interview notes, various reports that he had been presented with by the two representatives and the Secretary of State's refusal letters, and that he had given careful consideration to all the documents; and he found, having considered all those factors, that the appellant was exaggerating his fears.
I asked Miss Finch whether, without the reference to the previous decision by the previous adjudicator, she could argue that the decision was one which was irrational or was otherwise flawed. Understandably she had some difficulty in submitting that it was. It is clearly carefully reasoned and the material upon which he relies is material upon which he could properly rely. The only question therefore in reality is whether the reference to having perused the previous determination means that the whole has to be reconsidered.
It is no doubt inevitable that the previous determination will be on the file. It may be inevitable that the adjudicator looks at it. It seems to me that there is no reason in principle why he should not, provided, of course, that he does not allow it in any way to influence the decision that he has to make on a fresh consideration of the whole case. It may be that it would be desirable that steps were taken not to include such a decision in the papers, because that would avoid any question of a suggestion that the adjudicator had been wrongly influenced in any way by it; but that does not seem to me to be in the least essential and adjudicators can surely be trusted to carry out their functions in a proper fashion.
The only thing, as it seems to me, that this adjudicator has perhaps done wrong is to have expressed himself as he did. If he had merely said that the copy had been contained in the file and he had read it but he wanted to make clear that he was not to be influenced by any conclusions reached in it there would have been no problem at all. It is the use of the words: "I had the advantage of having perused it", that has given rise to any possible difficulty and it perhaps was a slightly unfortunate way of expressing himself.
When one looks at the decision in the round, in my judgment it clearly was one which he was entitled to reach: it is all properly reasoned. Indeed, this is a case where it is frankly difficult to see that in reality any other decision could sensibly have been reached.
This was a case where, on all the material, it was plain that the applicant felt, understandably, that he had no real future in Algeria. He had tried Italy but, for whatever reason, had not been able to remain there and it seemed clear on the face of it that this was indeed, as the Secretary of State believed, a case of an economic migrant rather than an asylum seeker.
In all those circumstances it seems to me that this is a case where Harrison J, when he refused the application for leave on the papers, was absolutely correct and indeed he said in four sentences all that I have said at much more length. It is worth quoting his reasons because they, in my judgment, encapsulate the correct approach:
"There is no indication that the special adjudicator's perusal of the previous adjudicator's determination influenced his decision. The special adjudicator had regard to documentary evidence relating to the situation in Algeria. After considering all the evidence he gave clear reasons why he concluded that you did not have a well-founded fear of persecution. There was no error of law arising from the decision."
This application is refused.
Application dismissed
Solicitors: David Gray & Co, Newcastle upon Tyne; Treasury Solicitor
Disclaimer: Crown Copyright
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.