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

ex parte FADIA NADER


16 July 1997

Queen's Bench Division: Scott Baker J

Tribunal-leave granted to Secretary of State against determination by special adjudicator-appeal allowed-remitted to different adjudicator whether appropriate to seek judicial review of grant of leave - whether within discretion of the Tribunal to remit a case to the same or another adjudicator Asylum Appeals (Procedure) Rules 1996 r 17

Application for leave to move for judicial review of the decision of the Tribunal to grant leave to the Secretary of State to appeal against the determination of a special adjudicator allowing the appeal of the applicant against the refusal of the Secretary of State to grant him asylum and the subsequent decision of the Tribunal to remit the case for hearing de novo by another adjudicator.

Counsel argued that leave should not have been granted and in the event the case should not have been remitted to another adjudicator.


1. The application for judicial review of the decision to grant leave was misconceived. The grant of leave was subsumed in the appeal itself.

2.It was manifest from the grounds submitted in support of the application for leave to appeal and the subsequent findings of the Tribunal that the determination was defective.

3.It was a matter of discretion for the Tribunal whether a case was remitted to the same or a different adjudicator and the court would rarely interfere with that discretion.

Miss V Miszkiel for the applicant Miss E Grey for the respondent

No cases are referred to in the judgment

SCOTT BAKER J: This application for leave to apply for judicial review came before the court with a time estimate of 30 to 40 minutes supported by Miss Miszkiel, counsel for the applicant. That estimate has regrettably proved wholly erroneous. It is most regrettable that such an erroneous time estimate was given because of the inconvenience that it causes to other litigants and to the court list.

The applicant is a Lebanese national who arrived in the United Kingdom on 23 October 1993 using a false EEC passport. Two days later he claimed asylum.

Briefly, the background history can be set out as follows. In 1989 he joined a defence battalion of the Lebanese forces. In 1990 he took part in military operations in the Lebanon during the war with General Michel Aoun. In 1992 he joined the Lebanese army and in 1993 he transferred to the military police, within, as I understand it, the Lebanese army. On 13 September 1993 he was on duty during a Hezbollah demonstration and was ordered to shoot at the demonstrators. Several were killed. He then apparently remained in hiding, before coming to the United Kingdom, as I have mentioned, on 23 October 1993.

On 17 June 1994 the Secretary of State refused his claim for asylum. He appealed to the special adjudicator. On 11 September 1996 the special adjudicator allowed his appeal on the basis that she accepted the truth of his account of the events in the Lebanon and that he had a well-founded fear of persecution from Hezbollah.

On 2 October 1996 the Secretary of State applied for leave to appeal to the Immigration Appeal Tribunal. The Tribunal granted leave on 15 October 1996 and on 13 November 1996 heard the appeal. On 23 December 1996 the Immigration Appeal Tribunal allowed the appeal and remitted the matter for rehearing before another adjudicator.

Judicial review is sought, first of all, against the Immigration Appeal Tribunal's decision to grant leave to appeal, that is the decision of 15 October 1996, and secondly, against the Tribunal's decision to remit the asylum appeal to a fresh adjudicator, that being the decision of 23 December 1996.

As to the first point, the grant of leave, in my judgment this aspect of the application is wholly misconceived. The grounds of appeal that caused the Immigration Appeal Tribunal to grant leave are to be found at page 21 of the bundle. They are set out in five separately numbered paragraphs. It is unnecessary for me to recite each of them.

Miss Grey observes that, from the view point of giving leave, it is only necessary that the Tribunal should find one of them to be an arguable ground.

If the Immigration Appeal Tribunal was in error in its decision to grant leave, then it seems to me that the inevitable conclusion is that, when the appeal is heard, the appeal will fail. If it does not fail because of some error on the part of the Tribunal, then that is the appropriate moment to seek judicial review. In fact in this case the Immigration Appeal Tribunal allowed the appeal. The grant of leave, in my judgment, is in fact subsumed in the appeal itself. The grant of leave is not a decision which, in my judgment, is amenable to judicial review in this case.

Miss Grey, on behalf of the respondent, outlines her more detailed argument at page 2 of her skeleton. She points out that the applicant could never have succeeded in challenging the, leave by way of judicial review before the appeal was heard and that, as a matter of logic, the position should be no different after the hearing of the appeal. It is, she argues, to that decision to which any application for judicial review should be directed. She goes on to contend that the interlocutory status of ‘leave' is reinforced by the fact that the Tribunal does not have to give reasons for its decision to grant leave. She also points out that the Tribunal is not limited in its jurisdiction to considering the points advanced by the parties in the application for leave. Suppose there was an error of law apparent on the face of the determination that the parties never mentioned, the Tribunal would be bound to have regard to it.

So it may be wholly artificial to examine the decision to grant leave with reference only to the grounds that are put before the Immigration Appeal Tribunal. Thus, I conclude that there is absolutely nothing in the leave point.

The remaining question is whether the applicant has an arguable case upon the legality of the decision to allow the appeal. The Immigration Appeal Tribunal was concerned about a number of matters in the decision-making process of the special adjudicator. The Tribunal said (at page 36 of the bundle):

"...the absence of clear findings of fact on material issues and on the credibility of the witnesses that she heard we are unable to do so."

The "so" being satisfied that the adjudication in the case was satisfactory. Thus, the concerns of the Tribunal were as to inadequate reasoning and inadequate findings of fact.

Helpfully, Miss Grey has set out in numerical form at page 3 of her skeleton argument the particular matters that caused the Tribunal concern. They are as follows:

(a)There was no finding of credibility in relation to the applicant's brother, ie no indication that the special adjudicator had addressed her mind to this issue. The applicant's brother gave evidence on behalf of the applicant, but the applicant himself did not give evidence.

(b)There was no finding in relation to the disturbance at the interview. On 28 April 1994, when the applicant was interviewed by the Home Office in connection with his asylum claim, there was a disturbance involving the applicant, his brother and the interpreter.

(c)The issue of the applicant's passport was not explored, although if he had travelled on a genuinely issued Lebanese passport, as he said he had at his asylum interview, his whole claim would fall to the ground. In fact at various times the applicant gave three accounts of the circumstances in which he left the Lebanon: first, that he had a genuine passport; second, that he had a fake Lebanese passport; and third, that he had no passport at all. The special adjudicator did not deal with this at all during the course of her decision.

(d)The issue of the reason for discrepancies between the accounts given at various interviews was not explored. The applicant had apparently said in a statement that was not before the special adjudicator, that any discrepancies were due to his mental state but that statement was not before the special adjudicator. The Immigration Appeal Tribunal stated:

"In a case in which the appellant was not giving evidence it really was incumbent on the court to satisfy itself that it had the material relied upon. "

There was medical evidence before the special adjudicator to suggest that the applicant was suffering from post-traumatic stress disorder, cognitive impairment and severe amnesia.

(e)No questions were asked of the applicant's brother regarding the applicant's mental state.

(f)There was no exploration of the possibility that the applicant's fear was genuine but nevertheless not objectively well-founded.

The conclusion of the Tribunal was that they simply could not, in the circumstances, be satisfied that the adjudication was satisfactory.

Miss Grey points out that it is not necessary for the Tribunal to be satisfied as to each one of these six deficiencies: one alone would be sufficient if the Tribunal was of the view that it was not merely a peripheral matter that would have made no difference to the decision but went to the heart of the decision-making process.

Miss Grey has alighted on two points in particular. The first was the fact that, although the applicant had made two written statements, one of those two statements was never before the special adjudicator at all, and that, in this type of situation, particularly where the applicant himself, perhaps for perfectly good reason, does not give evidence, it is incumbent upon the tribunal considering the matter-in this case the special adjudicator-to make sure that all the relevant material is in front of her.

The respondent has never seen that second statement. It is said that it did make reference to the applicant's ill health. However, in my judgment the Tribunal was perfectly correct in coming to the conclusion that here was a serious deficiency in the decision-making process.

The other point highlighted and expanded upon by Miss Grey is the issue of the false passport to leave the Lebanon. The special adjudicator made no mention of it at all. Miss Grey says that, whilst it is accepted that it is not necessary for an adjudicator to make findings of fact on every issue, there is a duty to make findings on the main issues in the case.

In my judgment, far from the Immigration Appeal Tribunal's decision to allow the appeal and to remit the case to another special adjudicator being irrational or in some way flawed, it was, on the face of it, an entirely appropriate decision.

The question has also been raised as to whether it was appropriate for the Tribunal to remit the matter to a fresh adjudicator. In paragraph 11 of her skeleton argument Miss Miszkiel points out:

"The test is that the Tribunal shall determine the appeal itself unless it is necessary in the interests of justice and that it would save time and avoid expense to remit the case to the same or another special adjudicator for determination, and that is rule 17."

Miss Miszkiel underlines the word ‘and'.

It seems to me that this is a matter that is within the discretion of the Tribunal and it is something upon which this court would not readily interfere. However, in this case, bearing in mind the inadequate reasoning and the inadequate findings of fact, it seems to me entirely appropriate that the matter should go back and be considered de novo by a fresh adjudicator. If the original adjudicator reached the right conclusions, albeit having expressed inadequate reasons, then the applicant has nothing to fear from this fresh exercise taking place. If, on the other hand, the special adjudicator in fact through an erroneous reasoning process came to the wrong conclusion, then it is clearly in the interests of justice that it should now be put right.

Of course one sympathises with the applicant, particularly in the light of his apparent mental condition, but I do not think that that is a good reason for interfering with the decision of the Immigration Appeal Tribunal which seems to me in all respects to have been a lawful decision.

In those circumstances the application for leave is refused.

Application refused

Solicitors: Aaronson & Co, London, SW5; Treasury Solicitor

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