R v. Immigration Appeal Tribunal, Ex parte Tewfik Boukhelal


CO/3542/96 25 October 1996 Queen's Bench Division: Laws J Political asylum-appeal dismissed-leave to appeal to Tribunal refused factual error by adjudicator-not apparent from determination-no reference to error in grounds put to Tribunal-whether Tribunal had obligation to search papers to identify, factual error-whether judicial review appropriate. The applicant for leave to move for judicial review was a citizen of Algeria. He had been refused asylum by the Secretary of State. His appeal was dismissed by a special adjudicator. The Tribunal refused leave to appeal. Counsel submitted that the special adjudicator had failed to consider the applicant as a member of a social group. He had also made a fundamental factual error in his account of the applicant's relevant history.


1. Albeit the special adjudicator had not referred specifically to a social group he had dealt fully with the case on the merits.

2. The special adjudicator's error of fact had not been brought to the attention of the Tribunal in grounds put to it. To discover it the Tribunal would have been obliged to scrutinise the interview notes as well as the determination, and it was not Wednesbury unreasonable for them not to have done so.

3. It was very important that appellants taking a case to the Tribunal should identify the basis on which they asserted that the adjudicator had erred. Where it was asserted that there was an error of fact it was particularly important that the point should be identified.

Miss R Chapman for the applicant

A Underwood for the respondent

Case referred to in the judgment:

R v Immigration Appeal Tribunal ex part Mustafa Arslan [1997] Imm AR 63.


This is an application for leave to move for judicial review. It relates to a decision by the Immigration Appeal Tribunal which refused the applicant leave to appeal against the determination by the special adjudicator. The special adjudicator had dismissed the applicant's appeal against the Secretary of State's refusal to grant him political asylum. The applicant is an Algerian national. The Secretary of State's letter refusing him asylum is dated 11 April 1996. The second paragraph reads:

"The basis of your claim was that your brother, Samir, was an Islamic activist and was killed by the Algerian authorities. Subsequently, the police came to your house and threatened you. Because of the fear of arrest and the general situation in the country, you decided to leave Algeria."

When the matter came before the adjudicator the appellant had, of course, put in grounds, the first sentence of which reads:

"I maintain my family have been the victims of political persecution, my brother was killed and my two other brothers have been arrested."

As I have indicated, the special adjudicator dismissed the applicant's appeal. The first submission made by Miss Chapman, on the applicant's behalf, is that the Tribunal should have granted leave because the adjudicator failed to identify or to indicate the true basis of claim to refugee status which the applicant was making, namely that he was a member of a social group, his family, and that he feared persecution by reason of that fact. It is true that the adjudicator does not articulate that proposition in his decision. The difficulty in Miss Chapman's way on this part of the case is that the adjudicator made it clear that he did not accept the whole of the factual basis on which the claim was being put forward. In assessing the applicant's evidence before him, he said:

"The witness gave evidence in a clear manner but I did not believe that he was totally accurate in his answers. I believe there was some lack of credibility in the manner of his description, both of the events in Algeria and his decision to come on a ‘translation' course at Salford University. It was clear to me that he had long-term aims to leave Algeria and this was a vehicle for doing so. In other words, I do not believe he was a totally credible witness."

Later, having carefully reviewed the background situation in Algeria, coupled with the situation of the appellant, the adjudicator said:

"...I reached the conclusion that the appellant in this case comes from a family which has had some problems with the authorities. However, he has not been arrested or charged at any time in the past and was able to leave Algeria without any difficulty on a visitors visa. Had he been of interest to the authorities in Algeria then I would have expected some difficulties in his ability to leave the country. The background to his position in the United Kingdom is that he arrived for a summer course at Salford University on a visa lasting some six months but decided to stay on following an accident at the end of his visiting period but, it was not until some three years later that he decided to apply for political asylum, overall, this must cast some considerable doubt upon the real reason why he has chosen to remain in the United Kingdom. Notwithstanding the problems which he maintains the family faces in Algeria, I am not minded to find that he is a true political refugee and that he comes within the terms of the 1951 Convention relating to the status of refugees."

The plain fact is that the adjudicator held that there was no basis on which this applicant had a well-founded fear of persecution for a Convention reason. It might have been desirable for the special adjudicator to make some reference to that category of potential refugees which arises because of membership of a social group. However, he has decided this case squarely on the merits and it does not seem to me that this first ground affords sufficient basis for the grant of leave. In the course of argument Miss Chapman took a further point. It concerns that statement by the special adjudicator which I have read and repeat for convenience:

"...he has not been arrested or charged at any time in the past"

Miss Chapman says that that is not right, on the face of the papers before the adjudicator. In his interview the applicant at one stage told the interviewing officer:

"I got arrested for ¾ hrs, A member of my family... is a police inspector and he helped in getting me released."

Later, in the interview he said:

"The police returned to our home a few times. On one of these occasions they took three of us (myself, Sonheil and Rachid) to the police station in Kaviniac. We were detained approx 5 hrs and threatened but not beaten."

The adjudicator makes no reference to the asylum interview, save in one sentence:

"The additional evidence in this case consists of the interview record with the appellant and his self-completed questionnaire."

There is no reason to suppose that the adjudicator had distinctly highlighted the two answers in the interview to which I have referred and chosen to disbelieve them. It appears, rather, that he may have overlooked those answers when he asserted that the applicant had not been arrested. This undoubtedly is a factual error by the adjudicator. I have to decide whether to grant leave to move for judicial review in relation to the decision of the Immigration Appeal Tribunal. In ex parte Arslan, given on 24 September 1996I[1]1, which happens to be a judgment of my own on an inter partes judicial review, I said this:

"It is, however, to be remembered that while the Wednesbury standard is applicable to this as to all discretionary decisions [that is to say a decision by the Tribunal to refuse leave] where the primary decision is given by statute to another decision-maker, nevertheless, in cases which touch fundamental rights, and in particular in cases of political asylum, the court approaches its jurisdiction with the most anxious scrutiny. Equally, the Tribunal must approach its jurisdiction in like spirit."

Later, at page 16 of the transcript:

"The true question is whether, given all the facts, and in particular the fact that the ground sought to be relied on was not asserted before the Tribunal, it can be said that the Tribunal has fallen foul of the Wednesbury rule, conditioned no doubt by the special scrutiny required in immigration cases. Likewise, with deference to Henry J and Kennedy J [who had given judgment in earlier learning to which I referred], it does not seem to me to be a question of the court's discretion. I am asked to say whether or not there is a reviewable error here committed by the Tribunal. That is not a question of discretion but a question of substance."

In the present case there is no trace in the grounds of appeal put before the Immigration Appeal Tribunal that the point as to whether or not the applicant has been arrested was drawn to the Tribunal's attention. The grounds put forward were short. That, of course, is no basis of criticism but here was a specific point not highlighted by Miss Chapman. As I say, it does not appear anywhere in the grounds. It seems to me that the correct question for me is whether the Tribunal fell into an error, categorised as a Wednesbury mistake, by failing to pick up this point to which their attention was not directed. I cannot see that there was any such Wednesbury failure. In order to become alive to the point the Tribunal would have had to scrutinise not only the adjudicator's decision but also the notes of interview. I cannot think that there was an obligation to do that. It would, if it existed, presumably arise in every case. It is very important that appellants taking a case to the Tribunal should identify the basis upon which they assert that the adjudicator erred. If it is a basis which concerns the adjudicator's finding of fact then it is particularly important that the point should be identified. Nothing I have said, either here or in ex parte Arslan, is intended to suggest that there are not cases in which judicial review may be had of a Tribunal's refusal to grant leave upon a point which was not taken before the Tribunal, Clearly if there was a rank failure to apply the correct rule or some other mistake springing from the face of the adjudicator's determination, different questions might arise from those which arise here. In the present case, however. I am satisfied that there can be no Wednesbury criticism of the Tribunal's decision. That being so, there is, in my judgment, nothing else in this application and leave must be refused.


Application refused


Mustafa, Manchester; Treasury Solicitor

[1]I See now p 63 above.

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