R v. Immigration Appeal Tribunal, Ex parte Senait (Belayeneh Tefara)

IN THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

(DIVISIONAL COURT)

Royal Courts of Justice

The Strand

London WC2A WLL

Friday 2 October 1998

Before: MR JUSTICE KEENE

REGINA-v-IMMIGRATION APPEAL TRIBUNAL (EX PARTE BELAYENEH TEFARA SENAIT)

MR A DIAS (Instructed by Messrs White Ryland, London, W12 2BR) appeared on behalf of the Applicant.

MISS E GREY (Instructed by The Treasury Solicitor, London SW1H 9JS) appeared on behalf of the Respondent.

JUDGMENT

MR JUSTICE KEENE:

This is an application for judicial review of a decision by the Immigration Appeal Tribunal dated 15 May 1997 refusing leave to appeal against a determination by a special adjudicator whereby this applicant's appeal against a refusal of asylum was dismissed.

The applicant is a citizen of Ethiopia born in 1956. She entered the United Kingdom on 30 May 1993 and sought leave to enter as a visitor for eight days. She was granted temporary admission pending consideration of her case. On 25 June 1993 she applied for asylum on the basis that she was a member of the Amhara tribe, who were being oppressed by the regime in Ethiopia. She said in the self-completed questionnaire:

"Since December 1992, the current transitional Government has taken wide-spread brutal action against the Amhara people, and recently my brother who is a University student was also we fear, taken away by the Government. As a result of this, I fear that the same would happen to me because of my outspoken views. I therefore decided to flee the country."

No mention was made in that questionnaire of membership by the applicant of any political party or organisation.

She was interviewed almost a year later on 24 June 1994. This time she referred to having joined the All Amhara People's Organisation ("AAPO"). In response to a question about her involvement with that organisation she stated:

"I was an ordinary member. I used to contribute a little money for leaflets and used to go to the meetings."

When she was asked to give details of the structure of that organisation she said she did not know the structure. She also referred to her brother having disappeared from university.

The Secretary of State refused asylum on 28 November 1994. Her appeal was determined by a special adjudicator. At the appeal hearing the applicant gave evidence that she had been a founder member of AAPO and that she was publicly known as highly connected in AAPO. She also called as a witness the secretary of the United Kingdom branch of that organisation, General Dilnessaw, who stated that he knew the founder members of AAPO, one of whom was, he said, related to the applicant. I note that he did not refer to the applicant herself as having been a founder member.

After setting out the appropriate legal tests, the special adjudicator stated in his decision:

"The striking feature of this case is the extent to which the evidence before me differed from the story originally told. The Appellant told me she was a founding member of AAPO, one of the ten people present at the clandestine meeting held on 17 July 1991. She named five of those persons but was reluctant to disclose the others for security reasons. She told me she was active in the information and public relations department of AAPO, distributing political pamphlets and that the reason for her decision to claim asylum was that her friend Mr Kibedi, a unit leader in AAPO, told her in 1993 that Tigrean security had obtained a list of names of prominent AAPO members and that she should find a way to save her life."

The special adjudicator went on to say that those claims had to be contrasted with the statement of her case in her questionnaire and with the account given in interview in which she had said that she was an ordinary member of AAPO contributing a little money for leaflets and going to meetings. He also referred to her answer that she did not know the structure of the organisation. He then continued:

"The Appellant explained her failure to disclose the depth of her involvement by saying she did not trust the interpreter and did not know that everything she said was confidential. I am unable to accept either of those explanations. The Appellant is an intelligent, widely travelled person who must have realised not only the significance of her asylum interview but also have understood the statement she signed at B3 that any information she provided would be treated in confidence. She must also have understood that if she was unhappy with the presence of the interpreter (who was standing by in case needed, the Appellant having said she was happy to be interviewed in English) she could have asked for his removal. Nor do I find any explanation for the Appellant's failure to state her case fully in her self-completion questionnaire statement."

The adjudicator went on to refer to the applicant's frequent visits to the United Kingdom in the nine months before her arrival here in May 1993, most recently a visit one week before her arrival on 30 May. On that occasion she had travelled on Ethiopian Airlines on staff tickets bearing her name. The adjudicator clearly felt that this did not fit in with her story. He then stated:

"Similarly, I do not accept that she was telling the truth about her brother. Although she has been consistent in referring to him, the story has grown in the telling. In her statement (A6) she said `Recently my brother who is a university student was also we fear, taken away by the government'. At interview (B19) she said: `My half brother....disappeared from the university (December 1992). He was a member of the AAPO. We don't know where he is - he's not in prison - I don't know whether he is dead or not'. In her evidence before me she told me her brother organised his own part of a peaceful demonstration which she attended as a supporter; that the Government opened fire on the demonstration and that one of her brothers `was among these victims'; his whereabouts were unknown. These accounts cannot be reconciled."

The adjudicator concluded that he was satisfied that the account which the appellant had given to him of her founding role and activities for AAPO was false and that the true level of her involvement was more closely related to that in her interview and questionnaire. He also referred to the extensive documentary evidence about the situation in Ethiopia saying that he had paid particular attention to the United States State Department report of March 1996 which he regarded as an impartial assessment. He concluded:

"In the result, I accept the Respondent's statement in the letter of 12 June 1996 that AAPO is not a proscribed organisation and that its head office is based in Addis Ababa; members are free to operate within the law as the majority do and suffer no harm as a result. On my finding that the Appellant has never held anything but a lowly role in AAPO, I agree with the Respondent that there is nothing in her political activities which would attract adverse attention from the Ethiopian authorities were she to return to Ethiopia at the present time."

Consequently he dismissed her appeal by a decision notified on 18 April 1997. The Appeal Tribunal refused leave to appeal upon 15 May of that same year.

On behalf of the applicant, Mr Dias advances two main arguments. The first is that there were material errors in the special adjudicator's determination such that leave should have been granted by the Immigration Appeal Tribunal. The second main ground is that the IAT should have been aware of and had regard to its own decision in the case of Jamal v Secretary of State or the Home Department, a decision notified on 1 April 1997 shortly before the special adjudicator's decision in this case. It was that second ground, I add, which particularly persuaded Buxton J, as he then was, to grant leave in this case. I deal first, however, with the first group of arguments which are advanced today on behalf of the applicant.

1. The Special Adjudicator's Decision

Under this heading, Mr Dias makes three points, all of them attacking the special adjudicator's decision. First he notes that the special adjudicator accepted evidence given by General Dilnessaw in so far as it dealt with facts as opposed to an assessment of the situation in Ethiopia. Therefore it is submitted that the adjudicator should have taken into account the fact that the applicant was not merely a low level member of AAPO, but was also related to a founder member of AAPO, namely her uncle. It is said that the adjudicator did not reflect this fact in his decision.

The respondent, who has been represented today by Miss Grey, takes the point that this argument about the applicant's prominence because of her relationship with her uncle was not something which was raised in the grounds of appeal to the Immigration Appeal Tribunal. It is right that in the notice of appeal to the tribunal some reference was made to the evidence of General Dilnessaw and to his reference to the applicant's uncle having been a founder member of AAPO. However, that reference is made simply in the context that the evidence of the General was corroborative of the applicant's evidence. Ground 5 of the notice seeks to deal with the fact that the General's evidence did not name the applicant herself as a founder member. The notice states that the fact that the then appellant, was not being named as a founder member, did not detract from her presence at the founding meeting in July 1991.

On reading the notice of appeal, the point made by Miss Grey is a sound one. The grounds of appeal were not raising any question of a failure on the part of the special adjudicator because of some particular prominence or risk attaching to this present applicant because of her uncle's activities, or because of her relationship with her uncle. The way the matter was raised was quite different. Nor was this an obvious point which the IAT should have taken of its own volition, as is the case with certain matters: see the Court of Appeal decision in the case of Robinson v Secretary of State for the Home Department and the Immigration Appeal Tribunal [1997] Imm AR 568 (CA) to which I shall refer.

In any event I do not accept that the adjudicator overlooked the fact that the applicant was the niece of a founder member of AAPO. His ultimate finding was that she was a low level member of that organisation. Her relationship to her uncle did not mean she was actively involved in that organisation as she claimed to be at the appeal hearing, nor was there any evidence other than her own testimony that she would be at risk because of the blood relationship. The evidence of General Dilnessaw did not go to establish that point. The special adjudicator's conclusion that the applicant would not attract adverse attention from the Ethiopian authorities was supported by the evidence of her frequent travels abroad without any apparent hindrance. Those travels included frequent visits to this country, one, as I have already indicated, only a week before her final arrival here on 30 May 1993.

In those circumstances it does not seem to me that there was anything in the special adjudicator's conclusions on this aspect which renders that decision vulnerable to intervention by this court. His conclusion about her role and status was one which he could properly reach on the evidence for him.

Mr Dias then criticises the special adjudicator's finding in respect of the applicant's credibility on the topic of her brother and his fate. It is submitted that that finding by the special adjudicator, which I have already quoted, was unjustified. Mr Dias argues that, although in her questionnaire/interview she had referred to the disappearance of her brother, the evidence which she gave before the special adjudicator was not necessarily inconsistent with those earlier accounts. It is submitted that the phrase used at the hearing by the applicant, namely that one of her brothers was amongst one of the victims, did not necessarily mean that he had in some way been injured.

When that phrase is read in context, the context being that the Government opened fire, according to the applicant, on the demonstrators and one of her brothers was amongst the victims, the obvious conclusion to draw is that her brother had indeed been shot and at least wounded in some way. That was not a reference which had appeared in any of the earlier accounts which she had given of the fate of her brother. In those circumstances, the special adjudicator was entitled to take into account that inconsistency in arriving at a conclusion on the credibility of the applicant. I can see nothing in this point which founds a challenge to the vires of that decision.

The final matter raised under this first main ground concerns the special adjudicator's conclusions about the situation existing in Ethiopia as based on the documentation put before him. It is submitted by Mr Dias that the conclusion reached by the adjudicator was unreasonable, which I take to mean Wednesbury unreasonable, that is to say that the conclusion was perverse.

It is contended that the special adjudicator was wrong in placing so much reliance on the US State Department report of March 1996 and that there was before him other material, in particular a report on the situation in Ethiopia by Mr Patrick Gilkes, which was not at one with the State Department report. Furthermore, Mr Dias argues that the US report was not dealing specifically with the problems of AAPO members, unlike the report compiled by Mr Gilkes.

In response to that Miss Grey emphasises that the special adjudicator's reliance on the State Department report was not a matter raised in the grounds of appeal to the IAT, nor indeed was any question of the documentation before the special adjudicator raised in those grounds of appeal. In those circumstances she contends that the IAT cannot be criticised for not having applied its mind to this particular point.

It is right that, in the notice of appeal to the IAT, nothing was said about the documentation concerning the situation in Ethiopia, and this particular argument which has been raised in this court by Mr Dias was not advanced. In those circumstances it is difficult to see that the IAT can be said to have gone wrong because it did not address such an issue. This was in no sense an obvious point in the sense referred to in the case of Robinson. It is one of those points which seems to be attributable to the ingenuity of counsel who has been instructed to argue this matter on the judicial review hearing.

I have read the US State Department report and there are passages within it which could properly form the basis for the adjudicator's conclusion. That is particularly so in respect of a passage in the State Department report which says:

"Opposition parties and human rights organisations were able to hold press conferences and public meetings without apparent retribution."

That one passage in isolation does not fully reflect, I accept, some of the other comments in that report which indicate that there were instances of problems experienced by political parties and activists in Ethiopia. Nevertheless, it was for the special adjudicator to decide what weight to attach to the various reports before him. I, or the Immigration Appeal Tribunal, might possibly have reached a different conclusion based on that documentary evidence but the IAT was not asked to deal with this point and I am not the appellate body. I can only intervene if the special adjudicator has acted irrationally or has in some other way made himself open to judicial review. There was nothing irrational in my judgment about the special adjudicator's findings in respect of the situation in Ethiopia.

In those circumstances I can only conclude that the first main set of grounds advanced on behalf of the applicant cannot succeed.

2. The case of Jamal

The main point which was seen by the learned judge who granted leave in this case as having, arguably, some merit was the second main ground raised by Mr Dias. It arises from the fact that the Immigration Appeal Tribunal had made a decision in the case of Jamal, notified to the parties in those proceedings shortly before the special adjudicator's determination was given in this case. In Jamal the tribunal had reached certain conclusions about the situation in Ethiopia and the position of AAPO supporters.

The evidence before the special adjudicator and the IAT in Jamal was not the same as in the present case, but in Jamal the IAT said:

"The principal ground of appeal is that the Adjudicator erred in law in coming to his conclusions about the present situation in Ethiopia on the basis of his own findings of fact and on the facts of the Reports upon which he relied ie the Amnesty International and US State Department Reports. We have perused them carefully and it is clear that there is no supporters them for the Adjudicator's view that ordinary supports of the AAPO will not be particularly targeted or ill-treated today."

The tribunal referred to a report of 8 February 1997 from Mr Patrick Gilkes and concluded:

"We are of the view that the Special Adjudicator erred in his assessment of the situation regarding the Ethiopian Government's attitude to AAPO supporters today and the likelihood of their persecution, even on the basis of the evidence and Reports before him. But if one adds Mr Gilkes' expert view, the matter, in our judgment, becomes clear and beyond doubt. It seems to us, there must be at the very least, a reasonable likelihood that the Appellant would face persecution if he were now returned to Ethiopia."

That decision in Jamal was not before the special adjudicator in the present case, nor was it put before the IAT on the application for leave to appeal. I understand that the reason for that was that it was not known about by the applicant's advisers at the relevant dates. It is something which has since been discovered. Nonetheless, Mr Dias submits that, had that decision been placed before the IAT, the tribunal might well have granted leave. He makes the point that as a matter of principle it is desirable to have consistency in decisions upon the same matters, particularly when they are dealing with a factual situation in the same country at approximately the same time. In support of that proposition he refers to a passage from the decision of the Court of Appeal in the case of Bambagu Menzeke v Secretary of State for the Home Department [1997] IAR 524 at 529. The Master of the Rolls giving the lead judgment there said:

"Consistency in the treatment of asylum seekers is important in so far as objective considerations, not directly affected by the circumstances of the individual asylum seeker, are involved. In this case those comments have an application."

I note that the Court in that same case went on to say on the following page:

"The fact that one Tribunal comes to a conclusion on the facts before it does not mean that any other Tribunal is bound to come to the same decision, but any later Tribunal is entitled to have regard to the views of a decision, such as that given by the Tribunal in the Senga case, irrespective of whether that Tribunal is a special adjudicator or an Appeal Tribunal. No doubt it was for that reason that both the special adjudicator and the Tribunal in his case referred to the decision of the Tribunal in the Senga case and cited passages from the decision given in that case. In my view they were right to do so. The matters which had been decided in the Senga case were at least relevant to the decision which the special adjudicator and the Tribunal had to reach in this case."

I respectfully agree with that passage. That is dealing with material which is put before a tribunal. The significant factor in the present case is that that decision in Jamal was never put before the either the special adjudicator or the IAT. What is the situation in those circumstances? Mr Dias submits, first, that the Court of Appeal decision in the case of Robinson, the reference to which I have already given, indicates that the Immigration Appeal Tribunal should of its own volition have taken this point because of the existence of the decision in Jamal. He relies on a passage in the case of Robinson which appears at paragraph 39 thereof. It reads as follows:

"Because the rules place an onus on the asylum-seeker to state his grounds of appeal, we consider that it would be wrong to say that mere arguability should be the criterion to be applied for the grant of leave in such circumstances. A higher hurdle is required. The appellate authorities should of course focus primarily on the arguments adduced before them, whether these are to be found in the oral argument before the special adjudicator or, so far as the Tribunal is concerned, in the written grounds of appeal on which leave to appeal is sought. They are not required to engage in a search for new points. If there is readily discernible an obvious point of Convention law which favours the applicant although he has not taken it, then the special adjudicator should apply it in his favour, but he should feel under no obligation to prolong the hearing by asking the parties for submissions on points which they have not taken but which could be properly categorised as merely 'arguable' as opposed to 'obvious'. Similarly, if when the Tribunal reads the special adjudicator's decision there is an obvious point of Convention law favourable to the asylum seeker which does not appear in the decision, it should grant leave to appeal. If it does not do so, there will be a danger that this country will be in breach of its obligations under the Convention. When we refer to an obvious point we mean a point which has a strong prospect of success if it is argued. Nothing less will do. It follows that leave to apply for judicial review of a refusal by the Tribunal to grant leave to appeal should be granted if the judge is of the opinion that it is properly arguable that a point not raised in the grounds of appeal to the Tribunal had a strong prospect of success if leave to appeal were to be granted."

It is submitted that here there was a strong prospect of success and that this was an obvious point which the IAT should have taken of its own volition, namely, the existence of the findings in the case of Jamal.

This is a misunderstanding of the decision in the Robinson case. Robinson was dealing with an obvious point of law which the IAT should take of its own volition, even if not raised in the notice of appeal. This is made clear in paragraph 37 of the decision in Robinson where the Court of Appeal said:

"It follows from what we have said that it is the duty of the appellate authorities to apply their knowledge of Convention jurisprudence to the facts as established by them when they determine whether it would be a breach of the Convention to refuse an asylum seeker leave to enter as a refugee and that they are not limited in their consideration of the facts by the arguments actually advanced by the asylum seeker or his representative." (Emphasis)

That is a clear reference to their knowledge of Convention jurisprudence, which is consistent with the references in paragraph 39 of that same decision to an obvious point of "Convention law". Consequently, arguments of law not raised by an appellant should be taken of its own volition by the appellate tribunal if they are obvious ones. However, Robinson was not seeking to require the Immigration Appeal Tribunal to search for other decisions of its own, or indeed of special adjudicators, which might have reached certain findings of fact relevant as facts to the case instantly before it. The decision in Jamal is one on which this applicant would be seeking to rely because of its findings of fact as to the situation in Ethiopia at a given time and as to the risks to AAPO supporters at that time. That is the bearing which Jamal might have on the present case.

Although Mr Dias seeks to characterise the Jamal decision as a ruling (I use his word), it is not a ruling of law. The decision in Jamal is a conclusion of fact, based on such evidence as was put before it and dealing with the state of affairs in Ethiopia at a particular time. Its relevance to the present case could only have been as a further piece of evidence for the appellate authorities to take into account in arriving at their own conclusions.

Of greater relevance to the present situation which faces this court is another Court of Appeal decision in the case of Gnanavarathan and Norbert [1995] Imm AR 64. Those were linked cases concerning previous decisions of special adjudicators on a relevant topic. The Court of Appeal dealt in those cases with the issue of previous decisions by special adjudicators as to whether France and Italy were safe third countries. In one of the two linked cases, that of Norbert, the applicant had not put before the adjudicator four previous decisions by other adjudicators dealing with the situation in France. In those four previous decisions, other adjudicators had decided they were not satisfied on the material before them that the Home Secretary's certificate that France was a safe third country was soundly based. However, when judicial review was sought, the applicant placed before the court copies of those earlier decisions, two of them being very recent at the time of one of the decisions being challenged in the case before the Court of Appeal. The court thus had to deal with the situation where there were in existence previous decisions dealing with the factual situation in relevant countries, some of those decisions being recent ones, and it went on to ask a question which is relevant to the present case. I quote from the leading judgment of Glidewell LJ at page 70:

"How far, if at all, was Mr Timmons required to take those decisions into account? In my view, he was under no obligation to search the files for other decisions. Normally an adjudicator must decide on the material placed before him. However, if he already knows of other earlier decisions, he is entitled to take them into account as a record of the facts upon which they were based. But, if he is going to do that, he must draw to the attention of the parties those decisions, and give the parties an opportunity to comment upon them."

It will be observed that the court clearly held that the special adjudicator is under no obligation to search the files for other decisions which might have some bearing on the appeal with which he is dealing. I regard that as relevant to the present case because I can see no material distinction between the position of the Immigration Appeal Tribunal and the position of a special adjudicator. However much it may be desirable to achieve consistency in the IAT's approach and special adjudicators' approach to a common factual issue, a proposition which in principle I accept, the IAT is not required as a matter of law, any more than is a special adjudicator, to play an investigative role and to seek to discover further evidence of its own volition, whether in the form of its own previous decisions or in any other form.

If such earlier decisions are placed before it and it regards them as relevant, it must take them into account. Equally it may, if it chooses, take such previous decisions into account, if it is aware of them, even if they have not been cited by the parties before it, so long as it ensures that the parties are aware of those earlier decisions. If it is not aware of such earlier decisions, it is in my judgment not obliged to seek out such decisions. I both follow and respectfully agree with the Court of Appeal decision in the case of Norbert to which I have referred. In the present situation it is not suggested that the Immigration Appeal Tribunal was aware of the decision in Jamal at the time when it refused leave in the present case.

If it be thought that this situation could give rise to a sense of injustice as between appellants where different results arise in respect of apparently similar, or relatively similar, facts, I can only say two things. First, any case can only turn on the evidence put before the tribunal in question. The problem here arose because the Jamal decision was not put before the IAT by those advising this applicant. Secondly, the remedy of a dissatisfied applicant in a situation such as this may lie in seeking the exercise of the Secretary of State's powers under section 21 of the Immigration Act 1971, which gives the Secretary of State power to refer a matter back to the IAT if he regards it as something which is relevant to the present matter. I observe that a decision by the Secretary of State under section 21 not to exercise that particular power is something reviewable by this court.

I in no way seek to indicate what would or should be the decision of the Secretary of State if such an application were made, or will now be made, by the applicant in this case or with what the decision of this court might be, were any such decision by the Secretary of State sought to be challenged on judicial review.

Finally, faced with the decision in the Gnanavarathan and Norbert cases, Mr Dias sought to argue that, even if the appellate body need not search for other previous decisions of its own, nonetheless, if the matter came before this court on judicial review, this court could send it back because of the discovery of such earlier decisions. That seems to be an argument without any substance or merit whatsoever. It provides no basis for judicial review that some fresh evidence has been uncovered since the decision of the appellate body. That is a basis upon which an appeal jurisdiction can be exercised. The jurisdiction vested in this court on judicial review is, as the name indicates, that of review and not one of appeal. I can see no basis on which the IAT decision can properly be quashed simply because some further evidence has come to light.

In those circumstances in follows that this second and main ground for this application cannot succeed and the application itself must be dismissed.

MISS GREY: In the light of that judgment, could I ask for an order that the application be dismissed. I apprehend that the applicant is legally aided. In those circumstances could I ask for the costs of the Secretary of State not be enforced without the leave of the court.

MR JUSTICE KEENE: Yes. The normal order for costs is slightly different in a legal aid case, which is an order that the applicant, as he is in this case, do pay the respondent's costs but not to be enforced until the legal aid liability of the applicant has been determined. The Associate will tell me if I have that formula wrong. That is my understanding in the light of what appears in the current White Book.

MISS GREY: There is one further matter.

MR JUSTICE KEENE: Shall we deal with costs first. You cannot resist that, Mr Dias.

MR DIAS: No.

MR JUSTICE KEENE: I make an order in those terms.

MISS GREY: Buxton LJ granted leave in this case on 11 July 1997. The Court of Appeal's judgment in Robinson was also handed down on 11 July.

MR DIAS: There is one other matter and that is an application for leave to appeal on the Jamal point. I anticipate what your Lordship will say given the terms of your judgment.

MR JUSTICE KEENE:

I am not prepared to grant you leave. I am required these days to indicate my reasons which I do in open court. In my judgment the point which you have there raised is one which is already, to all intents and purposes, clearly determined by the Court of Appeal's existing decision in the Norbert case to which I have referred in my judgment. If you want leave you will have to seek it elsewhere.