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

IN THE SUPREME COURT OF JUDICATURE

IN THE COURT OF APPEAL (CIVIL DIVISION)

ON APPEAL FROM THE HIGH COURT OF JUSTICE,

CROWN OFFICE LIST (MR JUSTICE TUCKER)

4 March 1999

Before:

LORD JUSTICE BELDAM

LORD JUSTICE ROCH

LORD JUSTICE MUMMERY

IN THE MATTER OF AN APPLICATION FOR JUDICIAL REVIEW

REGINA - v - SECRETARY OF STATE FOR THE HOME DEPARTMENTEX PARTE LUIS PACA

DR M MALECKA (Instructed by Messrs D J Webb & Co, London, EC1V 9HW) appeared on behalf of the Appellant

MR S KOVATS (Instructed by the Treasury Solicitors) appeared on behalf of the Respondent

JUDGMENT

LORD JUSTICE BELDAM:

Mr Luis Paca is 33 years of age and a citizen of Angola. He is from a professional background and until he left Angola in 1993 he was a teacher of maths and French. On 25 November 1993 he entered the United Kingdom using a passport belonging to someone else. He claimed asylum on 29 November 1993 and produced the equivalent of a passport in his own name on that occasion. His application for asylum was refused by the Secretary of State on 12 March 1997. The Secretary of State also certified that, under the provisions of the Asylum and Immigration Appeals Act 1993, schedule 2, paragraph 5, the applicant had failed to produce his passport without reasonable explanation and there was no reasonable likelihood of his being tortured in the country to which he was to be sent. Accordingly, the claim was not one which would confer on the applicant a right to appeal to the Immigration Appeal Tribunal.

Eventually the applicant appealed to the special adjudicator who, on 19 November 1997, dismissed his appeal and upheld the Secretary of State's certificate. He applied on paper for leave to move for judicial review of the special adjudicator's decision, but his application was refused by Moses J on 28 May 1998. He renewed his application to Tucker J on 16 October 1998, and now renews his application to this Court after Tucker J's refusal.

In his letter of refusal of 12 March 1997, the Secretary of State recited the account given by the applicant of his reasons for leaving Angola when he was interviewed by the immigration officers. He had said that, while working as a school teacher in Huila Province, he had been captured by UNITA troops and forced to teach in their camp. He had also been forced to carry heavy artillery for military operations. On 30 July 1993 UNITA were ambushed by government forces and he surrendered to them. He was subsequently detained as a UNITA conspirator and draft evader because foreign magazines containing articles about UNITA had been discovered in his house. He escaped from detention on 27 August 1993 and travelled to Senegal. He remained there for two months and 17 days and then travelled to France. He was there for one day before travelling to the United Kingdom.

The Secretary of State had commented adversely on the applicant's failure to seek protection either in Senegal or France, particularly as he had secured employment in Senegal with a businessman who considered him as one of his family, and to whom he referred as his benefactor. He had admitted that he had used someone else's passport to leave Angola and to enter Senegal, and the Secretary of State noted that he had given no indication of the document used to enter the United Kingdom nor produced any evidence until interviewed by the immigration officers. He had admitted avoiding military service, having been called up in 1990. He explained that he had been able to do so because his parents were able to pay bribes, which had also enabled him to escape from detention in 1993.

The Secretary of State was sceptical about the reasons given for leaving Angola, and questioned the credibility of his account of his escape. He had stated that he was neither actively in favour of, nor opposed to, the government in power in Angola, nor was he a member of any political group which would attract the adverse attention of the authorities. He concluded that the applicant's detention in Angola was as a result of his evasion of military service and not the result of persecution.

After reviewing the political developments which had taken place in Angola following the Lusaka Protocol, the Secretary of State concluded that any links the government might have perceived that the applicant had had with UNITA would be unlikely to lead to his becoming a target of persecution from the Angolan authorities. In all the circumstances he concluded that the applicant had not established a well founded fear of persecution and so did not qualify for asylum.

In his appeal to the special adjudicator, the applicant gave evidence through an interpreter and was represented. For reasons set out by the special adjudicator in her careful determination, she was unable to accept that the account given by the applicant was credible. Her decision was based largely on inconsistencies in the accounts given by applicant to the immigration officer with those which he had given to her. For example, he had stated in answer to questions in his interview that he did not belong to a political party and was just a simple citizen. Following his capture on 29 May 1993, he had been taken on a seven hour march to a kind of camp in the forest near mountains. His collar bone had been fractured on the march due to extreme fatigue and to forced carrying of heavy weapons, and that if at any time they (referring to his captors) were not satisfied, they would beat them (their captives) and that the injury was caused through the combination of forced carrying and beating. He had not received any medical treatment for his injury, and was required to teach people in the UNITA camp. He had said he evaded call-up for military service because once in the army he was there for life. His father had helped him to evade call-up through friends who knew how to do things, and possibly through bribery.

He described to the special adjudicator how he had left Angola using the passport of a grant holding Angolan student to study in Algeria. It contained a visa for Senegal. On arrival he was lucky enough to meet someone at the airport who heard his story and was able to help him. His benefactor was an antiques dealer with whom he stayed for 2½ months, receiving board and accommodation in return for work. When his benefactor was going to Europe carrying valuables, he needed someone to go with him for protection, and so the applicant accompanied him. He said he did not apply for asylum in Senegal because he did not know he could do so.

His evidence on the appeal was summarised by the special adjudicator. She said that he had claimed to have suffered far greater beatings, threats and ill-treatment by UNITA than he had previously stated, and that his collar bone had been broken by being beaten at least five times with a rifle. When he was taken by UNITA, he was taken on a week's march from his school to the camp where he was detained, and he was treated badly because of ethnic prejudice because he was a Bakongo. He said he could not return to Angola because he would become an activist, fighting for the Angolan nation and thus face death.

When he was questioned by the Secretary of State's representative before the special adjudicator, she concluded that he was prevaricative and vague in his replies to questions asking him how exactly his father and former pupil had helped him escape. When asked why he had not remained in Senegal, he said that human rights there were no better than in Angola; and asked why he had not claimed asylum in France, he said he did not know where he was.

In reply to questions from the adjudicator, his account was vague. After summarising the submissions made by the parties, the special adjudicator then correctly directed herself on the standard of proof required to show a reasonable degree of likelihood of persecution for a Convention reason. She stated that she did not find the appellant credible. She gave six reasons for rejecting parts of the account he had given. She described him as an intelligent, educated teacher of maths and French from a professional background. She said there was no excuse for him to employ subterfuge or to pass himself off as the brother of his benefactor, if indeed, as he said, he had his identification with him. She found it inconceivable when he said that he did not know he was in France. She did not believe that he had been taken home after his arrest by the NPLA. He had put this forward as an explanation for the finding of articles and foreign literature about UNITA. She drew attention to the discrepancy in the length of his march after capture by UNITA (seven hours or seven days) and did not believe that he had no idea of the geographical area to which he had been taken or where he had been captured. She pointed out that his allegation of ill-treatment had escalated considerably. She did not believe that the injury to his collar bone had been caused by five blows with a rifle. She did not believe the story of his escape, or his account about his alleged Senegalese benefactor. In her opinion, the story was implausible.

The first ground of this application is that the adjudicator misinterpreted the law as stated by Webster J in R v. Secretary of State for the Home Department, Ex parte Patel [1986] Imm AR 208. She had failed to approach the evidence on the basis that the demeanour of a witness who spoke through an interpreter was a notoriously difficult basis for judgment. Dr Mary Malecka, who appeared for the applicant, submitted that it was clear from the adjudicator's decision that she had not given sufficient weight to the fact that the applicant was giving evidence through an interpreter, and equally, where she had referred to prevarication, that she had given some weight to his demeanour.

The word "demeanour" used of a witness is generally taken to apply to the manner in which he answers questions, the speed with which he does so; any hesitancy in answering or inflection or shyness, any vagueness or anger, whether genuine or assimilated, are matters capable of giving rise to an impression of honesty or reliability. But the central basis of the special adjudicator's decision for rejecting the applicant as a reliable witness, was the change in the accounts he had given to her from the accounts which he had given to the immigration officers on arrival. In short, she explained those factors in his evidence which she thought were inconsistent with the account he had given. She emphasised that he was an educated, intelligent and professional person. In particular, she did not believe, for example, that a teacher of French would have been unaware that he was in France. In my view, there was an ample basis for her rejection of the applicant as a reliable witness (she did not depend on demeanour) and she correctly articulated the basis on which she arrived at her decision.

That basis depended essentially on judgments which it was for her to make. I do not consider that they were entirely, or indeed even principally, based on demeanour. They were clearly based on the contradictory accounts that he had given. In my view she was right to conclude that the applicant had failed to prove a well founded fear of persecution in Angola if returned.

In a second submission, Dr Malecka challenged the special adjudicator's upholding of the Secretary of State's certificate under the Asylum and Immigration Appeals Act 1993. Unquestionably on arrival he failed to produce a passport relating to himself; he left it to his benefactor to produce a passport for him and he produced one relating to another person. The claim was, therefore, correctly certified under paragraph 5(3)(a). Equally the Secretary of State had ample material on which he could conclude that the applicant had not been subjected to torture before he left Angola.

Accordingly, I would dismiss this renewed application.

LORD JUSTICE ROCH:

I agree.

LORD JUSTICE MUMMERY:

I agree.

ORDER:

Application dismissed; legal aid taxation of the applicant's costs.