R v. Secretary of State for the Home Department, Ex parte Thadeus Babatunde Ogunshakin

R v SECRETARY OF STATE FOR THE HOME DEPARTMENT
ex parte THADEUS BABATUNDE OGUNSHAKIN

CO/192/96

19 January 1996

Queen's Bench Division: Macpherson J

Appeal-asylum—dismissal-analysis of documentary evidence-whether adjudicator obliged to record findings on evidential weight of each document-whether entitled to take overview of the evidence.

The applicant for leave to move for judicial review was a citizen of Nigeria. He had been refused asylum by the Secretary of State: his appeal to a special adjudicator was dismissed: he was refused leave to appeal to the Tribunal.

In seeking judicial review of that refusal his counsel complained that the adjudicator had failed fully to analyse the documentary evidence before him and had not assessed its evidential weight document by document. The documents purported to show the political involvement of the applicant through his membership of a club in Lagos.

Held:

1. The adjudicator was not obliged to record an assessment of the evidential value of each document put to him.

2. He was entitled to review that documentary evidence and to record his general conclusion as to its authenticity.

M S Gill for the applicant

R Jay for the respondent

No cases are referred to in the judgment

MACPHERSON J: The applicant in this case in Thadeus Babatunde Ogunshakin. He is just under thirty years old. He comes from Lagos, Nigeria. He arrived in this country on 11 September 1994 presenting false documents. On 14 September 1994 he sought asylum.

On 19 October the Secretary of State refused his claim for asylum and, as he was entitled to do, the applicant lodged an appeal which was heard by a special adjudicator, Mr. Law, on 7 November 1995. The applicant was present and he was represented. Documents were submitted which the applicant stated had been produced by the organisation to which he said he belonged in Lagos. That organisation was a club called "The Sole Mates". In his questionnaire he was asked what the club was. He said:

"It is The Sole Mates Social Club. We have a small room in a bungalow owned by our President's father. The club was formed four years ago. We have sixty members. I joined on inception. I became Secretary last September. The object was seeking the welfare of the members. The members used to help each other. In June we held a demonstration against the military government because it will not restore the president elect."

The extent of this man's political activity was confined to his activities in connection with that club. The adjudicator went into considerable detail into all that he had heard. The time came when, in his written decision, he set out the standard to which he had to conform. That standard is set out at the bottom of page 42. There is no need for me to read the full paragraph but it is a careful analysis of where the burden of proof rested, which was upon the appellant, and of the standard of proof to be achieved. He finished off by saying:

"Any uncertainty of facts is to be weighed in the balance rather than being excluded, as it would be, if the balance of probabilities are the sole criterion."

He said, in order to stress the correctness of his analysis, that:

"The burden of proof was a lighter burden than that of the balance of probabilities."

Mr. Gill sensibly accepts that, apart from the general moot point about objectivity or subjectivity, the analysis was perfectly correct. Furthermore, as Mr. Jay points out, the adjudicator said at the top of page 43:

"What I have to decide is whether the appellant has been politically active in the way described and in the consequences described and, if so, whether that means he has a well-founded fear of persecution for a Convention reason."

That question which he posed to himself immediately followed his analysis of the burden and standard of proof. Thereafter, as Mr. Gill indicates, the adjudicator dealt with various aspects of the case as it was presented to him. For example, he dealt with the possible existence and activity of a Mr. Abbertan, who was said to be a lawyer, in obtaining this man's release after arrest. He also dealt with a series of documents which were put in to try to persuade the Secretary of State and the adjudicator that the club had been involved in considerable political activity. That is a portmanteau way of describing the effect of the documents. What he said in connection with the documents was that they seemed to be strange because, for example, it was odd or strange that the authors of an anti-government leaflet would risk reprisals by publishing their names and address, together with the telephone number. It seems to me that was a perfectly justifiable comment. In addition, in connection with another document, the adjudicator said:

"Given that the appellant said in evidence that no-one signed on behalf of the President this creates doubts as to the authenticity of one or both documents."

Mr. Gill's complaint about these findings is that they are not properly analysed findings of fact applying the proper standard of proof. It is true that the adjudicator did not take each piece of evidence and apply what is called "the ten per cent rule" but, in my judgment, he was not bound to do that. It would never be easy in a case like this to reach a final conclusion in connection with each document as to its authenticity. What the adjudicator had to do was to consider the weight of various pieces of evidence put before him and apply all of the evidence to the question which he rightly posed to himself. In my judgment that is, in the end, exactly with the adjudicator did. He concluded on page 47 of the bundle in this way:

"The Sole Mate Club may well exist, but I am far from satisfied that it is more than a social club. I am not satisfied with the authenticity of the documents produced or the fact that the appellant had been politically active in the way described or that he was arrested and beaten by other prisoners while in police custody. I note that there is no evidence other than the appellant's word that the injuries were said to be sustained just three months before his arrival in the United Kingdom."

Taking all that into account the adjudicator then said:

"The appellant has failed to discharge the burden of proof. I am not satisfied that he has a well-founded fear of persecution for a Convention reason and this appeal is dismissed."

That is the conclusion that he reached. In my judgment he was perfectly justified in assessing all the evidence without reaching concrete conclusions on each individual part of it. He was entitled to apply all the evidence to his thinking as he came to his decision and posed to himself the right question assessed in accordance with the standard of proof which had been properly set out in his decision.

Looking at the question of the Sole Mates Club, it does not seem to me that there is any flaw in the adjudicator's analysis in connection with that either. Again, overall, he had to consider whether the Sole Mates Club was more than a social club. He was far from satisfied that it was more than a social club. In my judgment, he reached a justifiable and sensible conclusion in that regard.

There is some comfort generally in this case, as it seems to me, for when one looks at the whole of it, there was very little evidence that this man was involved in political activity at all. If he was arrested he was released and he came out of Lagos on the ordinary flight. He did have false documents and so he used a subterfuge in that way. There is no evidence that he was one of those who have unfortunately been harassed in the unfortunate political situation which prevails in Nigeria at present. He must go back whence he came. This application is dismissed.

Application dismissed

Solicitors: Tyndallwoods, Birmingham; Treasury Solicitor