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

Publisher	United Kingdom: High Court (England and Wales)
Author	High Court (Queen's Bench Division)
Publication Date	22 July 1994
Citation / Document Symbol	[1994] Imm AR 577
Cite as	R v. Secretary of State for the Home Department, Ex parte Seidu, [1994] Imm AR 577, United Kingdom: High Court (England and Wales), 22 July 1994, available at: https://www.refworld.org/cases,GBR_HC_QB,3ae6b69c0.html [accessed 4 November 2019]
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R v SECRETARY OF STATE FOR THE HOME DEPARTMENT ex parte SEIDU

Queen's Bench Division

[1994] Imm AR 577

Hearing Date: 22 July 1994

22 July 1994

Index Terms:

Political asylum -- dismissal of appeal by special adjudicator -- application for leave to appeal to the Tribunal -- request for further time to produce additional evidence -- whether Tribunal correct to determine the application within five days albeit that evidence not produced -- whether on special adjudicator's factual findings it was proper to refuse leave to appeal. Asylum Appeals (Procedure) Rules 1993 rr 13, 30.

Held:

The applicant for leave to move for judicial review was a citizen of Ghana whose application for asylum had been refused by the Secretary of State. An appeal had been dismissed by a special adjudicator. Application was made for leave to appeal to the Tribunal. In submitting that application the applicant's representative stated that more time was needed to obtain further evidence from Ghana. The Tribunal pursuant to rule 13 of the Asylum Appeals (Procedure) Rules 1993 determined the application at the end of five days, although that additional evidence had not by then been produced.

It was argued by counsel that the Tribunal had erred in so determining the application to the detriment of the applicant. She also argued that on the facts, the applicant had shown before the adjudicator that he had a well-founded fear of persecution if he were returned to Ghana.

Held

1. On a true interpretation of rule 13 of the Asylum Appeal (Procedure) Rules 1993, the Tribunal was correct to conclude that irrespective of the representative's request, it was obliged to determine the application within five days of its receipt.

2. None of the adjudicator's conclusions could be attacked on Wednesbury principles.

Notes:

NOTE

In the earlier case of R v Immigration Appeal Tribunal ex parte Kiyingi (unreported, QBD, 13 May 1994: CO/1335/94) Judge J, obiter, in considering the same point said:

The chairman of the Immigration Appeal Tribunal gave his ruling on 28 April of this year. He noted that no letter of July 1993 appeared to be on file, and it would in any event be the applicant's responsibility to have it translated. He then went on, "The Tribunal cannot extend time to allow for further evidence to be produced from Uganda." That, of course, was a reference to the application to allow the lawyer from Uganda to confirm the truth of arrest and detention. Leave was refused.

Mr Yakabu [counsel for the applicant] in his careful submission on this application has suggested that the whole decision refusing leave has been vitiated, and it is arguably susceptible to judicial review because the chairman used the words, "the Tribunal cannot extend time. . ." That, he argues, is a misdirection. He drew my attention to rule 31 of the Asylum Appeal (Procedure) Rules 1993. These provide for an extension of time limits under the rules, where the special adjudicator or the Tribunal is required to determine an appeal, or the Tribunal is required to provide written notification of the determination at or within a time prescribed. In such circumstances, "The special adjudicator or as the case may be the Tribunal may if necessary extend the time so prescribed either to enable it fairly to determine the appeal or as the case may be to provide the notification."

Rule 31(2) provides that an extension may be made notwithstanding that the time prescribed in any case has already expired.

It is submitted by Mr Tam in the course of his argument, that this being an application for leave to appeal rather than the hearing of an appeal, the appropriate procedure is governed by rule 13(4). This reads, "An application for leave shall be determined not later than five days after its receipt." This rule, he argued, is not subject to the extension of time permitted by rule 31, whereas rule 16 is expressly subject to rule 31. It reads, "Subject to rule 31, any appeal under this part shall be determined not less than 42 days after the date of service on the tribunal of the appellants notice of appeal." Mr Tam therefore submits that this being a case in which there was an application for leave rather than a hearing by the Tribunal of an appeal, the chairman did not misdirect himself when he used the language quoted earlier, namely that, "the Tribunal cannot extend the time . . ." He accepted that in an appropriate case, in order to do justice, there might be some alleviation of the apparent rigidity of rule 13(4). I am not deciding, and I should not want this judgment to be taken as deciding finally, that rule 13(4), although not expressed to be subject to rule 31, may not in fact be subject to it, in particular by reason of rule 31(2) which seems to deal fairly generally, at least on the face of it, with extending time notwithstanding a prescription on the time limit.

In reality, the chairman was not prepared to extend time here. It is not suggested reading through his determination that he would have thought this would have been an appropriate case in which to extend time, but that under the rules he was inhibited from doing so and obliged to refuse when he thought this would otherwise have been an appropriate case.

Counsel:

Miss M Kaler for the applicant; R Tam for the respondent

PANEL: Schiemann J

Judgment One:

SCHIEMANN J: This is an application for leave to move for judicial review in relation to an asylum application. The applicant is a Ghanian. The Secretary of State refused him asylum and he appealed to a special adjudicator in Birmingham who made his decision on 23 June of this year. I shall come back to that decision in a moment. The adjudicator held that the applicant did not have a well-founded fear of persecution. The applicant thereupon sought to appeal to the Immigration Appeal Tribunal, but in order to do so under the appropriate rules he needs leave. The Tribunal refused him leave. He comes to this court asking for judicial review of the decision of the Tribunal on two bases. The first is procedural, in that he says that he has been denied natural justice. The second one is substantive, in that he says that no reasonable Tribunal could have reached the conclusion that he did not have a well-founded fear of persecution.

The procedural point arises in this way. He submitted grounds before the Tribunal in support of his application and they read in part as follows:

"The appellant has produced evidence from Ghana which shows that he is a person whose life is in danger if sent back to Ghana. This evidence will take the form of a national newspaper item. In it the appellant is 'named' as being sought by the Ghanian government. Time is required by the appellant to obtain this evidence and on receipt will be filed with this appeal."

The position of the Tribunal is governed by the Asylum Appeals (Procedure) Rules 1993. Rule 13 provides:

"(1) An appeal shall be brought only with the leave of the Tribunal.

(2) An application for leave to the Tribunal shall be made not later than 5 days after the person making it ('the appellant') has received notice of the determination against which he wishes to appeal.

. . .

(4) An application for leave shall be determined not later than 5 days after its receipt by the Tribunal."

Rule 30 states:

"Where the Tribunal fails to determine any application for leave under rule 13 within the time prescribed, the application shall be deemed to have been granted."

Although there are provisions in the rules for the extension of various time limits, it is submitted on behalf of the Secretary of State that those extensions have no application to the present. Miss Kaler for the appellant does not dispute that that is a correct interpretation of the rules. Therefore the position is that the Tribunal has to determine the matter within five days of the applicant's application for leave being received. Parliament is minded that applications for leave to appeal should be dealt with fairly swiftly.

The newspaper item is one that has still not appeared. Miss Kaler tells me on instructions that it has been asked for, although there is no evidence before the court of what the document says. In those circumstances the decision of the Tribunal to consider the full application for leave rather than to wait for the applicant to produce the evidence is one that in my judgment cannot be faulted. This court looks now at whether there was anything substantively wrong with that decision.

Effectively the Tribunal adopted the views of the adjudicator. The points that the applicant made before the adjudicator were that he saw himself as a possible source of persecution on two bases. First his personal political activities against the present government of Ghana, and second by reason of the fact that he was a member of the Cokumba tribe in northern Ghana.

So far as the first is concerned, the applicant before the adjudicator conceded that his activities had not been at a high level and that he was not a chief or a leader as mentioned in his application. That is conceded in front of me by Miss Kaler. He made before the adjudicator the point that he had canvassed support for the MPP (an opposition group in Ghana) within his tribe. Therefore he was looked upon as an educator, which is somebody of significance in the context of his tribe.

The applicant acknowledged that the MPP was not proscribed in Ghana, but he explained that in his opinion this was because such a ban would expose corruption of the Ghanian government. The applicant gave evidence before the adjudicator to the effect that he had experienced no problems throughout the whole of 1993 when he lived in Accra. In those circumstances, the adjudicator took the view that the appellant's personal political activities were not such as could give rise to a well-founded fear of persecution. That is a judgment which the Tribunal accepted and that is a judgment with which this court, on the material before it, cannot interfere.

It must be remembered that the function of this court is not to substitute its opinion for the Secretary of State's, but to see whether there was material upon which the Secretary of State could come to that view.

The second possible cause for the applicant's alleged fear of persecution arises from the fact, which was accepted by the adjudicator, that there is in Accra a market place called the Cokumba market place in which evidently members of the Cokumba tribe gather. On one occasion in February of this year there was a bomb outrage in which three people were injured. The appellant suggested to the adjudicator that he was the specific target of this bomb outrage, but the adjudicator found that suggestion unlikely. Indeed the applicant produced no evidence from which such a conclusion could easily be drawn by an adjudicator.

The alternative way in which the applicant puts the matter is to suggest that the whole tribe was the subject of persecution. The adjudicator found that there was a conflict which flared up in early 1994, but that the single incident of bombing in this market was not such as could give rise to a well-founded fear of persecution. There was no evidence before the adjudicator, and indeed there is no evidence before this court, to suggest that this was one of a series of harassments, that it is continuing, or that there is indeed a plan for it to continue.

In my judgment, there is no reasonably arguable case before this court which could possibly establish that the decision of the Tribunal in the present case was flawed in law. In those circumstances leave is refused.

DISPOSITION:

Application dismissed

SOLICITORS:

Singh & Choudry, London E8; Treasury Solicitor