Assah v. Immigration Appeal Tribunal

Publisher	United Kingdom: Court of Appeal (England and Wales)
Author	Court of Appeal (Civil Division)
Publication Date	21 June 1994
Citation / Document Symbol	[1994] Imm AR 519
Cite as	Assah v. Immigration Appeal Tribunal, [1994] Imm AR 519, United Kingdom: Court of Appeal (England and Wales), 21 June 1994, available at: https://www.refworld.org/cases,GBR_CA_CIV,3ae6b64624.html [accessed 5 November 2019]
Disclaimer	This is not a UNHCR publication. UNHCR is not responsible for, nor does it necessarily endorse, its content. Any views expressed are solely those of the author or publisher and do not necessarily reflect those of UNHCR, the United Nations or its Member States.

ASSAH v IMMIGRATION APPEAL TRIBUNAL

Court of Appeal (Civil Division)

[1994] Imm AR 519

Hearing Date: 21 June 1994

21 June 1994

Index Terms:

Political asylum -- appeal allowed by special adjudicator -- appellant a witness before him -- appeal to Tribunal by Secretary of State -- Tribunal allowed appeal reversing adjudicator's findings of fact on some material issues -- no oral evidence before Tribunal -- whether Tribunal erred in law in reversing adjudicator's findings of fact. Immigration Appeals (Procedure) Rules 1984 r 18: Handbook on procedures and criteria for determining refugee status (1979) para 196.

Held:

Appeal from the determination of the Tribunal reversing, on appeal by the Secretary of State, the determination of a special adjudicator who had allowed the appeal of the appellant against the refusal by the Secretary of State of his application for asylum.

The appellant was a citizen of Ghana: he claimed asylum on the basis of events he alleged occurred while he was a polling booth assistant during elections in 1992 and after he had complained of ballot rigging. The special adjudicator had heard evidence from the appellant. He had found him of impaired credibility. Nevertheless he accepted some points of the appellant's evidence and concluded, without explaining why, that the appellant had a well-founded fear of persecution if he returned to Ghana.

On appeal, the Tribunal concluded that none of the accounts put forward by the appellant relating to past material events was true. The appeal of the Secretary of State was allowed.

On appeal to the Court of Appeal it was argued that an appellate tribunal should be slow to interfere with an inferior tribunal's findings of primary fact: that principle became even more important where the appellate tribunal had not heard oral evidence, and the issues related to a claim for political asylum.

Held

1. In appropriate circumstances and where a finding was unsustainable the Tribunal was entitled to reverse an adjudicator's findings on primary facts.

2. In the instant case after its analysis had shown flaws in the adjudicator's determination, the Tribunal did not err in law in coming to the conclusions to which it came.

Cases referred to in the Judgment:

Huseyin Bugdaycay v Secretary of State for the Home Department [1987] 1 AC 514: [1987] Imm AR 250.

Counsel:

R Scannell for the appellant; R Jay for the respondent

PANEL: Sir Thomas Bingham MR, Kennedy, Millett LJJ

Judgment One:

KENNEDY LJ: This is an appeal by Mr Assah from a decision of the Immigration Appeal Tribunal which on 26 November 1993 allowed an appeal by the Secretary of State against the decision of an adjudicator of 21 October 1993. The adjudicator (who was a special adjudicator) found that Mr Assah was a refugee within the meaning of the Refugee Convention of 1951. Leave to appeal was granted by the Tribunal on 13 December 1993 and thus the matter comes before us.

The ground of appeal which we are asked to consider is in substance that the Tribunal, not having heard evidence from Mr Assah, nevertheless in effect reversed the adjudicator's finding of fact as to the role of Mr Assah as a polling station assistant in Ghana during the elections in November 1992 and as to the consequences of his conduct on that occasion. We were asked yesterday by Mr Scannell to consider the legal principles involved in this kind of situation. He reminded us that an appellate tribunal such as the Immigration Appeal Tribunal should be slow to interfere with findings of primary fact reached by the inferior tribunal, in this case the special adjudicator, from which the appeal lies, especially where that tribunal has had the advantage of seeing and hearing a witness, or witnesses, give evidence. Particularly, Mr Scannell submitted, this should be the attitude of the appellate tribunal if the matter in issue is a question of political asylum. A court should be astute to apply that principle in relation to facts found in favour of the applicant.

He reminded us of the well-known passage from the speech of Lord Bridge in the case of R v Home Secretary ex parte Bugdaycay [1987] 1 AC 514 at 531 where Lord Bridge said:

"The most fundamental of all human rights is the individual's right to life and when an administrative decision under challenge is said to be one which may put the applicant's life at risk, the basis of the decision must surely call for the most anxious scrutiny."

In most asylum cases, Mr Scannell submits, as in this case, there is an important issue as to credibility and applicants are often unable to produce documentary or other evidence to support their claims. He invited our attention to a passage from the Handbook on procedures and criteria for determining refugee status issued by the office of the United Nations High Commissioners for Refugees in 1988 in which at paragraph 196 it says:

"If the applicant's account appears credible, he should, unless there are good reasons to the contrary, be given the benefit of the doubt.

197. The requirement of evidence should thus not be too strictly applied in view of the difficulty of proof inherent in the special situation in which an applicant for refugee status finds himself."

The paragraph goes on:

"Allowance for such possible lack of evidence does not, however, mean that unsupported statements must necessarily be accepted as true if they are inconsistent with the general account put forward by the applicant."

That leads me to the final qualification which Mr Scannell necessarily accepts, which is that in the final analysis an appellate tribunal such as the Immigration Appeal Tribunal not only can, but should, reverse a finding of fact if it is unsustainable. For example, if a witness is found to be generally unreliable, or if it is irrational to accept his evidence in relation to one topic unless there is a reason for doing so, such as the existence of something which might be regarded as corroborative testimony or the fact that the particular piece of evidence appears to run contrary to his interests.

The special adjudicator who considered Mr Assah's appeal was appointed pursuant to section 8 of the Asylum and Immigration Appeals Act 1993 and by virtue of paragraph 22 of the Asylum Appeal Procedure Rules of 1993. The Tribunal which heard the appeal had the powers set out in rule 18 of the Immigration Appeals (Procedure) Rules of 1984. Those powers provide that in any proceedings on an appeal the Tribunal may in its discretion receive, or decline to receive, further evidence of which notice has been given in accordance with rule 2. If, to enable it to arrive at a proper determination of the appeal, the Tribunal request the furnishing of further evidence relating to specified matters it shall receive such further evidence. Where such further evidence as is mentioned in sub-paragraph (a) or (b) falls to be received it shall be given as the Tribunal may direct. It can then set out how the evidence is to be given.

The Tribunal did have the power to remit the matter and to hear further evidence and that is something to which Mr Scannell yesterday invited our attention.

I turn now to the history of the matter which can be summarised thus. Mr Assah was born in Ghana in November 1973. On 22 April 1993 he arrived in the United Kingdom from Jamaica. He then sought political asylum as a Jamaican in the name of Alexander Coleman. He claimed that he held no passport, but he did have a birth certificate in the name of Lawrence Assah. He was interviewed in connection with that claim for political asylum and said that he had a well-founded fear of persecution in Jamaica because his father was wanted for some kind of fraud there. About a fortnight later, on 7 May 1993, or thereabouts, he admitted that his name was Lawrence Assah, that he was not a Jamaican, but a Ghanian. He said that he lied because he had panicked and was frightened. He claimed political asylum again. He was then interviewed on 20 May in connection with that claim for political asylum. He said that he was a member of the MPP and had been a polling assistant at elections which were held on 2 November 1992. In fact the elections were held on the following day, but nothing as it seems to me turns on that point. He said that he had made a complaint about ballot rigging at his polling station and that resulted in the returning officer being assaulted when the ballot box was opened and papers were found inside it. He said that he was then arrested and was questioned for about six hours before he was released without charge. He said that soldiers came to his house and beat his father who was the Branch Chairman of the MPP and were looking for him. He ran away and eventually travelled to Jamaica where he did not seek asylum because he found that people in Jamaica were in sympathy with the Ghanian government.

On 26 July the Secretary of State, by letter, refused his claim for political asylum and thus the matter, as a result of his appeal, came before the special adjudicator on 1 October. The decision of the adjudicator was given on 14 October. The adjudicator's determination and his reasons cover some ten pages. Mr Scannell says, with justification, that the adjudicator clearly looked at the matter with care. Quite early on in the determination the adjudicator recognised that even in respect of the second application, it had to be accepted that the applicant was tainted by falsehood. At page 27 of our bundles in the course of the adjudicator's determination he said this:

"It is quite clear that there are matters in the second application which [Mr Assah] himself admits are not true."

The structure of the adjudicator's determination is to my mind somewhat diverse and not always easy to follow. His findings are to some extent mixed up with the narrative, but the findings tend not to favour the applicant.

The applicant claimed not to understand anything about passports. That was not accepted by the adjudicator. The applicant claimed to have been at school doing practicals at the time when soldiers visited his family. That was in December 1992. That was not accepted by the adjudicator. The adjudicator continued thus:

"Because of that, the whole of the evidence relating to the allegation that his parents and brother were beaten while he was away that day, that he was told about it by neighbours but that he did not go to see what had happened, that he immediately fled and since then has not known the whereabouts of his parents, must in my view, be in serious doubt."

The adjudicator then turned to what was alleged to have happened during the previous months to November 1992. He accepted that the applicant's father was an outspoken member of the MPP and that the applicant was involved in a polling station incident in respect of which he was released, presumably on bail, and in respect of which there may be a pending prosecution. It is not entirely clear to me why those parts of the applicant's evidence were proving acceptable to the adjudicator, but the adjudicator said this:

"I do find the credibility of the appellant damaged, and I do doubt whether what he says regarding the prosecution itself is true, but if it is it is a matter of prosecution rather than persecution."

At that stage, as it seems to me, one might think that the adjudicator would have come to an end, but he did not. He reminded himself of Mr Assah's first application under what he described as:

"Unresolved discrepancies, which his evidence at the hearing certainly does not deal with . . ."

and which, of course, went to his credibility. One example was what the adjudicator regarded as his failure to explain why he concealed the fact that he travelled via Zurich to Jamaica. The adjudicator looked at the evidence placed before him as to the state of affairs in Ghana at the time of the November 1992 elections and concluded:

"It is quite clear from this evidence with regard to the situation in Ghana at the time of the elections and immediately before and after that there is a general situation of insecurity and unrest which will subject officials to harassment and persecution. The question is whether the appellant has shown that he falls into that category."

The adjudicator recognised the absence of evidence to support the appellant as to the election incident. As to that he said:

"I find that I am without any independent evidence of the involvement of the appellant in the elections and in particular in the alleged incident."

Then having reminded himself of the burden and standard of proof in a case such as that with which he was dealing, the adjudicator said:

"In the present case, I find it more likely than not that there is truth in the story about the ballot boxes and the attack which took place on the Returning Officer. I do not believe that the story is an invention."

To my mind he gives no clue as to why he finds that evidence acceptable, coming, as it does, unsupported from a witness whose evidence is otherwise rejected on almost every point in issue as unreliable. A couple of paragraphs later the adjudicator says that he is:

". . . not without doubts as to the truth of the story"

but having accepted it he considered whether on the basis of those events the appellant would have a well-founded fear of persecution as opposed to prosecution if he were returned to Ghana. The adjudicator then found that a very real risk of persecution did exist, but his determination is silent as to why he arrived at that conclusion.

On the appellant's own version the polling station incident took place when he was nearly 19 years of age. He was not a political figure of note. He did not himself use violence. He was held for six hours. He was then able to go home after which he remained in Ghana for several months. At the end of his determination the adjudicator said:

"Although the Secretary of State found that there was no evidence that the Ghanaian authorities would persecute the appellant purely on account of his or his father's alleged participation in MPP related activities, the incident taking place at the time of the election does place this matter in sharper focus and in a different light. My suspicions in this respect would be strengthened if there was in fact an attack on the family of the appellant, and are further strengthened by the suggestion that the photograph of the appellant is displayed on a notice board in Kotoka airport."

That is a curious passage for two reasons. First, because it is not clear what the adjudicator meant by saying that because the incident took place at the time of the election it placed the matter in sharper focus and in a different light. Secondly, because whatever the adjudicator's suspicions may have been, they could not be strengthened by either an attack, which on his findings did not occur, or by a suggestion of the appellant's photograph being displayed at an airport made in a letter of disputed origin and in relation to which the adjudicator made no findings.

I turn to look at the Tribunal's decision. The Tribunal made it clear that it was reviewing the case as a whole and that it appreciated that the case turned on the appellant's credibility. The Tribunal also recognised that there were discrepancies between, not merely the first interview and the rest of the evidence of Mr Assah, but also between the second interview and what Mr Assah had said in evidence to the adjudicator. In interview he said that he had never had a passport. In evidence he said that he had got one in February 1992 because his father intended that he should receive further education in the United States. Next there was a discrepancy as to how he got to Jamaica. In interview he said that he had gone by British Airways via London. In evidence he said he went to Zurich by Swiss Air and then to Jamaica. He admitted he made a reference to Jamiaca at first because his solicitor had explained that if he mentioned a visit to Zurich he would be asked why he had not applied for asylum there. Thirdly, the Tribunal pointed to the discrepancy as to whether he had sought asylum in Jamiaca. In interview he said that he had not done so because people were in sympathy with Ghana. In evidence he said that he sought asylum, but they had then been unsympathetic.

Next the Tribunal pointed to the discrepancy as to whether he was at home in late December 1992 when, according to him, soldiers raided his home, beat his family and his younger brother died. In interview he said at first that he was at home, but then that he was not, and that he had gone to town. In evidence he said that he was at school, but in fact he was aged 19, which was above normal school age. He said it was holiday time. He explained his presence at school by saying that he had gone to do practicals.

Next he was inconsistent as to what happened after. As he said, he was arrested in November 1992 following the ballot box incident. In interview he said he was taken to the police station and then after some time released. In evidence he said that he was charged and told to report daily.

The Tribunal reminded itself that the adjudicator had had the advantage of seeing and hearing the appellant, Mr Assah, and with that advantage the adjudicator was unable to accept much of what Mr Assah had said. Of course, the adjudicator had accepted his evidence in part. It was against that background that the Tribunal came to the conclusion that what the adjudicator had found was unsustainable. The witness was unreliable. The story of the attack on the family was not acceptable and it, in the words of the Tribunal, went to the basis of the application for political asylum. He was not claiming political asylum simply because he was a member of the MPP Documentary evidence, which the Tribunal looked at again, suggested that there could have been incidents at election time, but as the Tribunal pointed out, Mr Assah was aged 19. He was not a figure of any significance. He denied assaulting the returning officer. The Tribunal were simply not satisfied that he had ever been charged.

It pointed to the fact that five months then elapsed before he left Ghana. He made no application for asylum in Zurich or London, whichever it may have been, when he was on his way to Jamiaca. The Tribunal noted that the final part of the adjudicator's determination was open to criticism in a way to which I have referred.

The Tribunal concluded that looking at the matter overall, there had been a web of lies. It considered the position of Alhaji, the mysterious character who was apparently the writer of the letter mentioning the photograph and found the evidence about him, in its own words:

"Simply not credible and the contents of his letter quite valueless."

Finally, the Tribunal said:

"In our opinion the respondent was certainly not a credible witness, partly because of the falsity of his original story and partly because of the contradictions and inconsistencies of his subsequent version of events. We consider that the respondent's second application was as much a fabrication as the first and that there were no grounds for thinking that the respondent might have been persecuted on his return."

That seems to me, despite the submission made by Mr Scannell, to be a conclusion which the Tribunal was entitled to reach in the circumstances of this case. Once the account of the raid on the family was rejected, Mr Assah's whole story fell apart. There was no logical reason for accepting his evidence of what happened at the time of the election, but even if that evidence be accepted, it could not in the circumstances justify a finding that he had a well-founded fear of persecution. I for my part can see no reason why the Tribunal should have thought it necessary in the circumstances to hear further evidence or to remit the matter to the adjudicator. For my part I would dismiss this appeal.

Judgment Two:

MILLETT LJ: I agree.

Judgment Three:

SIR THOMAS BINGHAM MR: I also agree that this appeal should be dismissed. I would simply add that the appeal has been most ably and attractively argued By Mr Scannell and Mr Assah should not attribute his lack of success to any lack of skill on the part of his advocate.

DISPOSITION:

Appeal dismissed

SOLICITORS:

Winstanley-Burgess London EC1; Treasury Solicitor