R v. Immigration Appeal Tribunal, Ex parte Zola Ndongala

R v IMMIGRATION APPEAL TRIBUNAL
ex parte ZOLA NDONGALA

CO/2339/96 22 July 1996 Queen's Bench Division: Buxton J Appeal - refusal of leave to appeal to the Tribunal - grounds argued before the court not put to Tribunal in application for leave - not apparent on a fair reading of the determination –whether proper basis for an application for judicial review - whether detailed reasoning and analysis of evidence required where adjudicator found applicant not credible on major material matters - the limit of the court's role in analysing an adjudicator's determination. The applicant for leave to move for judicial review was a citizen of Zaire. He had been refused asylum by the Secretary of State. He appealed. His appeal was dismissed by a special adjudicator. He was refused leave to appeal to the Tribunal. Very brief grounds were submitted to the Tribunal in support of the application for leave to appeal: none was of substance. Before the court new and extensive grounds criticising the special adjudicator's determination were produced. They included not only matters never raised in the application to the Tribunal but other criticisms not evident from a reading of the determination.

Held

1. It was difficult to conclude that there was any irrationality in the decision of the Vice-President of the Tribunal in refusing leave to appeal because he did not give due weight to matters not put before him. The court would in any event be slow to review a decision of the Tribunal on grounds that did not spring from the face of the determination or were not apparent from a fair reading of it.

2.It was not incumbent on the adjudicator to detail every fact or point asserted by the applicant and to say it was rejected. There was a limit to what was required by way of reasoning where primary facts were concerned which the adjudicator was uniquely well placed to determine.

3.It was not the role of the court even in an asylum case to submit the findings made by an adjudicator to the very detailed criticism and review which had been raised in this application in respect of some factual conclusions to which the adjudicator had come.

R Scannell for the applicant

Miss E Grey for the respondent

No cases are referred to in the judgment

BUXTON J:

This is an application for leave to move for judicial review of a refusal of leave to appeal by the Immigration Appeal Tribunal. It is brought by Mr. Zola Ndongala, who came to this country from Zaire, a country of which he is a citizen, in 1994. He was refused asylum and directions were given for his removal on 9 January 1995. He appealed against that decision to a special adjudicator who heard his appeal on 7 February 1996 and 22 March 1996. Mr. Ndongala was represented throughout those proceedings by an extremely experienced firm of solicitors and by counsel, though not by Mr. Scannell who has appeared for him today. The adjudicator rejected Mr. Ndongala's application, saying that he did not find him to be a credible witness and did not accept the account that he had given: principally but not exclusively relying on the fact that he had been arrested in June 1993, being, accused then, though not apparently in the summons, of an attempt on the life of the President of Zaire, or being involved in such an attempt, it having occurred some six months previously. Mr. Ndongala's account was that he had only come to the attention of the authorities because he declined to co-operate with them well after January 1993 in activities that they were organizing, and also because he had formed a youth organization with an unfavourable attitude to the authorities called the MJPUSO. At page 10 of his determination, the adjudicator indicated that, amongst his reasons for not accepting Mr. Ndongala as a credible witness, were two letters from his brother, which would have been favourable to his claim if genuine, but which had only been produced at a resumed hearing and not at an earlier stage; and also the fact that the summons, to which reference has been made, had given no indication of what he had been accused of. The adjudicator said that if he had been accused of an attempt on the President's life in January 1993, he found it inconceivable that the summons would only be issued in July. He assumed from that that the summons must have been issued for lesser reasons, and he did not accept that after this length of time the authorities would have any further interest in the appellant. I shall return to that part of his reasoning later. Although the adjudicator accepted that Mr. Ndongala had a fear of returning to Zaire, the adjudicator did not accept that the fear was well-founded. Mr. Ndongala sought leave to appeal from the Vice-President of the Immigration Appeal Tribunal. That application was settled by solicitors very experienced in this area of work and referred only to three matters: firstly, that the adjudicator had reached a credibility decision without reference to the demeanour of the applicant; secondly, that he had been wrong to reject the veracity of the letters simply by reference to the time when they were produced in this country; and thirdly had assumed that the summons, to which I have already referred, had been issued for "lesser reasons" without any evidence to support this assumption. There was plainly no merit in the first of those points and the Vice-President of the Tribunal so held. He went on to say that, with regard to the second and third grounds, the adjudicator was fully entitled on the evidence that he had, and on his assessment of the appellant's testimony, to reject the documents in question. The Vice-President further commented that on reading the determination as a whole, the reasoning was clear and complete. In the application before me greatly extended grounds of complaint are directed at the adjudicator's decision. Firstly, it is said that it is inadequately reasoned to the extent of constituting an error of law, in that it does not indicate whether or not the adjudicator accepts what is described as the central plank of the applicant's case, his involvement with various organizations, the detention and beating of his father, and so on; and, secondly, that the adverse decision as to the applicant's credibility that the adjudicator reached was - I think this is the only way of putting it - irrational, more particularly in connection with the issuing of the summons to which I have already referred. It was the applicant's case before the adjudicator that the summons had only been issued on fictitious grounds relating to the alleged attempt to assassinate the President because of further activity the applicant had engaged in between January and June 1993. Speaking for myself, I see some difficulty in concluding, as the form of this application demands me to conclude, that a decision of the Vice-President of the Immigration Appeal Tribunal is irrational because he has not dealt with or sufficiently given weight to complaints about the decision of the special adjudicator which were never put before him. However, Miss Grey, who has appeared for the Tribunal in this matter, has not sought to press that point, but she has said, and in my judgment rightly said, that, putting it at its lowest, the court should be cautious before finding to be irrational or reviewable a decision of the Vice-President of the Immigration Appeal Tribunal on grounds that do not spring from the face of the adjudication and which are not apparent from a fair reading of it. I endorse that approach. I certainly do not accept that any of the matters of which Mr. Scannell now complains are in any way such as to be apparent on the face of the adjudicator's determination. However, I put that consideration on one side because I do go on, with some hesitation, to consider the complaints that are now made in the application which have been expanded on very fully and forcefully by Mr. Scannell, both in writing and orally. But I do so with the footnote that this, in effect, turns this application into a review of the decision of the special adjudicator, when in law and in truth the right of the citizen is limited to inviting this court to review the decision of the Immigration Appeal Tribunal or rather of its Vice-President. As to the two complaints made, first of all, as to the inadequacy of reasoning, the complaint broadly is that the substantial points put forward by the applicant in support of his case are not specifically dealt with. In my judgment, that is not necessary in a case where the adjudicator finds, as this adjudicator found, that he was not able to accept the applicant as a credible witness. The central plank of the case was that which the applicant urged on the adjudicator in evidence. If looking at the matter in the round, the adjudicator is not able to believe the major part of what the applicant tells him, and that is the substance of this determination, I cannot accept that any requirement of reasoning requires him to enunciate every point or every fact that the applicant has asserted and say that he rejects it. There must be a limit to what is required by way of reasoning when what we are concerned with is not argument or the drawing of conclusions of secondary facts from established primary facts, but rather a question that the adjudicator is uniquely well placed to determine: whether, on the central facts in the case, the applicant is telling the truth. I therefore cannot accept that this judgment or this determination suffers from lack of reasoning. So far as the adverse view of the credibility of the applicant is concerned, first of all, one has to remember (and it would be otiose for the adjudicator to say this) that he has had the benefit, which this court has not had, of actually hearing the applicant give evidence, of being examined by his own counsel and being cross-examined, and has had an opportunity to look carefully at his replies and to consider all the evidence that he gave. Secondly, the adjudicator specifically refers to two points about which he was far from satisfied. Firstly, the letters from his brother, the late production of which the adjudicator found to be critically difficult for the applicant's veracity, and it was a matter upon which, as the Vice-President of the Appeal Tribunal rightly said, he was entirely entitled, on the evidence, to come to that conclusion. Secondly, there is the matter of the summons, where the adjudicator concluded that the summons must have been issued for lesser reasons. It is important to recognise and to remember that the only evidence that the adjudicator had of why this summons had been issued was the account that the applicant gave him of what the applicant had been told by the people who came to implement this summons: the summons, on its face, apparently not indicating any ground at all. It is true that the adjudicator said that he disbelieved or found difficult to believe that that summons had been issued because of the attempt on the President's life in view of the applicant living in Kinshasha for six months between January and July 1993. But although much was made of this by Mr. Scannell, and he complained that that showed that the adjudicator simply had not understood or appreciated the applicant's case that the summons had not been issued for that reason at all but because of his activity in the youth movement, nonetheless, looking at the matter in the round, I see no grounds for saying that the adjudicator has so much misunderstood the point as to undermine in this respect all the other grounds that he had for his finding that this man was not a credible witness. It is not the role of this court, even in an asylum case, to submit the findings that an adjudicator makes of this sort to the very detailed criticism and review that this particular passage has received in this application. I see no grounds for saying that this part of the judgment in any way undermines the broad conclusion that the adjudicator reached. It was entirely within the limits of his discretion to come to the conclusion, having heard the evidence, that the summons had not been issued in respect of the attempt on the life of the President, nor had it been said to have been. I do not accept, therefore, that it is arguable that the factual conclusion reached by the adjudicator in this case was reached as a result of an error of law: which would have to be shown for this application to be arguable. As I have said, the form that this application takes points starkly to the fact that this court in these applications is, in effect, asked to review, not the decision the subject of the application, but the decision of the special adjudicator. That I have done. Without coming to any conclusion as to whether that is the correct course, I do not find arguable grounds for proceeding against the decision either of the special adjudicator or of the Immigration Appeal Tribunal. Leave to move is not granted.

DISPOSITION

Application refused

Solicitors:

Clinton Davis Cushing & Kelly, London E5, Treasury Solicitor