R v. Secretary of State for the Home Department, Ex parte Fortunado

R v SECRETARY OF STATE FOR THE HOME DEPARTMENT
ex parte FORTUNATO

CO/766/96

21 March 1996

Queen's Bench Division: Jowitt J

Political asylum-applicant had arrived in United Kingdom from Portugal where transit passenger-claim for asylum characterised as without foundation-Secretary of State proposed return to Portugal-the eight-day rule-special adjudicator concluded Portugal safe third country for previous transit passenger-whether adjudicator obliged to put to parties information which had led him to conclude in another case that Portugal, for a non-transit passenger, would not be a safe country on return. HC 395 para. 345.

The applicant for leave to move for judicial review had been refused asylum by the Secretary of State after she arrived in the United Kingdom from Portugal where she had been a passenger in transit. The Secretary of State concluded that her claim was without foundation and proposed returning her to Portugal.

On appeal the special adjudicator concluded that the interpretation by Portugal of the eight-day rule meant that on return, after having been merely a transit passenger, her claim would be considered substantively and thus Portugal was a safe third country. In an earlier case the same special adjudicator dealing with an appellant who had not been merely a transit passenger in Portugal, had concluded that Portugal was not a safe third country.

Counsel argued that the special adjudicator had erred in not putting to the parties the special information he had on the application of the eight-day rule and which had led to his earlier decision and on which he relied in the instant case.

Held

1. The adjudicator had no obligation to put to the parties information within his knowledge which had no bearing on the particular question he had to resolve in the case before him.

2. There was no evidence to suggest that the special adjudicator in the instant case had relied on any information germane to the issue, which was not before the parties.

C Moll for the applicant

Miss E Grey for the respondent

Cases referred to in the judgment:

Secretary of State for the Home Department v Khalif Mohamed and anr [1944] Imm AR 402.

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

JOWITR J: This is an application for leave to move for judicial review of a decision of the special adjudicator dismissing the applicant's appeal against the decision of the Secretary of State. This was a case which fell within paragraph 345 of the immigration rules so that the respondent could, without any breach of the United Kingdom's duties under the Convention, remove the applicant to Portugal whence she had come to this country.

Before the special adjudicator the point taken on behalf of the applicant was that she would suffer persecution in Portugal. The special adjudicator rejected that. He concluded so far as that was concerned, that Portugal was a safe third country. That part of his decision is not criticised. The part of his decision which is criticised is the part where he deals with the eight-day rule. The effect and any problem with the eight-day rule was not raised before him by either of the parties. What the special adjudicator said was this:

"Two things may be said at the beginning in this case. The first is that the opportunity of applying for asylum in Portugal when she was originally there is conceded on behalf of the appellant. Secondly, some uncertainty surrounds the applicability of the eight-day rule in Portugal, but it is clear that an applicant such as this one who is returned to Portugal having been there in transit only on the previous occasion would have eight days in which to make an asylum application and if returned to Portugal, even if she did not have a greater period than that based on the manner and circumstances of her original entry to Portugal".

What Mr. Moll, on behalf of the applicant, says about that passage is that although the point had not been raised by the parties, nonetheless whether or not the eight-day rule would affect the applicant was an important aspect of the case and one, therefore, with which the special adjudicator should have dealt and, indeed, did deal with, but Mr. Moll submits it is apparent from that passage and from one other factor, to which I shall refer in a moment, that the special adjudicator drew upon material which was not before the parties and he was at fault, as is shown by the decisions of the Court of Appeal in Abdi and Gawe [1994] Imm AR 402 and ex parte Gnanavarathan [1995] Imm. AR 64, in that he should have disclosed that material to the parties to allow them to comment on them.

It is perhaps appropriate to say briefly what is meant by the reference to the eight-day rule in Portugal. Apparently someone who enters Portugal, and in not merely in transit, should apply for asylum if he intends to, within eight days of entry. Thereafter, there is no obligation to entertain an application for asylum and the application may or may not be entertained. That was the state of the evidence before the adjudicator in a letter at page 43 of the bundle, dated 6 October 1994 from the Nationality Co-ordinator of Elena to a Mr. Francis Smith at the Refugee Legal Centre.

It seems to me that two points arise. Firstly, the requirement in the Court of Appeal judgments of disclosure to the parties of information which they have not placed before the special adjudicator, but upon which he proposes to rely, must relate to material on which he proposes to rely or is minded to consider in relation to solving the problem with which he has to deal. I put the matter in that way for this reason: on some particular asylum topics, for example, there may be a variety of information which the special adjudicator has acquired in the course of various appeals he has heard, but not every piece of information he has acquired in relation to a claim for asylum in a particular country will bear upon the particular problem before him in relation to the question of the ability to claim asylum in that country in the appeal which he is hearing. If it has no bearing upon the resolution of that problem and he does not see that it may have, I can see no reason why he is obliged to disclose to the parties what would be irrelevant material.

Mr. Moll says one can tell from the particular passage and from the fact that in May 1994 this special adjudicator had heard an appeal touching on Portugal in the case of Bernardo, that he did have special knowledge in relation to the eight-day rule. There are two letters in the bundle before me which deal with the case of Mrs. Bernardo, but there is nothing to suggest that those letters were before the special adjudicator in the appeal which comes for consideration before me. Briefly, the case of Bernardo was one in which the appellant before the special adjudicator had been in Portugal for some time, not merely in transit, but had entered the country and the special adjudicator had evidence that because she had entered the country and had been there for some time a claim for asylum by her would not be entertained by Portugal.

Those were the circumstances in which Professor Counter concluded that Portugal was not a safe third country. The facts of that case are far removed from the facts of this case. Originally one of the grounds of challenge was to the special adjudicator's finding that the applicant was only ever in transit, but that ground is no longer pursued, and it is accepted that the applicant was only ever in transit. In other words, she had never entered Portugal, so that the fate which might have been in store for her in Portugal had she, in fact, entered that country is neither here nor there. It does not bear upon the questions which arose in her case before the special adjudicator: as she had been in transit could she apply for asylum; would her application for asylum be entertained and was Portugal therefore a safe country? I say again, the information which Professor Counter, the special adjudicator, had acquired in the other case, did not bear on this case. He did though have information which bore very much on this case.

A letter was put before him. It is at page 43 of the bundle. The letter is dated 6 October 1994, again, addressed to Mr. Francis Smith of the Refugee Legal Centre and it is from the Nationality Co-ordinator of Elena. It is necessary to refer to two numbered paragraphs of that letter:

"(2)After entering in Portugal the asylum seeker must claim political asylum within eight days if he has a valid passport or within 48 hours if he has no documents (according with the new asylum Bill 70/93 of 29 September).

(3)These time limits are only applicable when the asylum seeker enters in Portuguese Territory, which means that the ICs in the transit zone of the Lisbon airport, were not in Portuguese Territory (legal fiction). So, the time limit is applicable after the return of the asylum seeker.

Even if we consider that the IC has entered in Portugal, there is a certain -gum claim was never flexibility concerning this time-limit, and an as refused in Portugal, on the basis that the asylum seeker has asked for the asylum 10 days or 20 days of the entry.

More than one month, can only be motive for the refusal".

It seems to me that those two numbered paragraphs entirely explain what the special adjudicator says in the passage at page 13 of the bundle to which I have referred already. There is some uncertainty about the applicability of the eight-day rule in Portugal to those who have entered the country. But that has no bearing on the case of this applicant, since she never actually entered and was only ever in transit.

I find no evidence at all for the proposition that in writing as he did, the special adjudicator was drawing on material which was not placed before him by the parties in the appeal which he heard. Accordingly, the ground upon which Mr. Moll seeks leave to move is not made out and there is no arguable ground that the special adjudicator drew on material which had not been before him.

Accordingly, leave is refused.

Application refused

Solicitors: Vincent Buffoni & Co, London N1; Treasury Solicitor