IN THE MATTER OF AN APPLICATION FOR JUDICIAL REVIEW v THE QUEEN [2002] EWCA Civ 1806

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
(Mr Justice Crane)
[2002] EWCA Civ 1806Case No C1/2002/1939Venue Royal Courts of Justice, Strand, London WC2, Monday, 2nd December 2002
Between
IN THE MATTER OF AN APPLICATION FOR JUDICIAL REVIEWTHE QUEENon the application of MAKOMBOApplicant(1) IMMIGRATION APPEAL TRIBUNAL(2) SECRETARY OF STATE FOR THE HOME DEPARTMENTRespondents
Before
Lord Justice WardLord Justice BuxtonMr A Durance (instructed by South Manchester Law Centre) appeared on behalf of the Applicant.The Respondents did not appear and were not represented.Date 2 December 2002

LORD JUSTICE WARD:

[1]I will ask Lord Justice Buxton to give the first judgment.

LORD JUSTICE BUXTON: This is a renewed application for permission to appeal from a decision of Mr Justice Crane given on 22nd August 2002 in an immigration matter. The proceedings before Mr Justice Crane and before us are proceedings for judicial review, an aspect of the case about which I shall have something to say in due course.

[3]The applicant, Mr Makombo, is a citizen of the Democratic Republic of Congo. He came to this country and made an application for asylum on 28th January 2001. His application was rejected by the Secretary of State. An appeal to the adjudicator failed. An application for permission to appeal to the Immigration Appeal Tribunal was rejected. These proceedings are in the form of judicial review of that last decision.[4]The applicant's case is set out by Mr Justice Crane, if I may say so, clearly and succinctly. It turns on a fear on the part of the applicant that if he returns to the Congo he will be in trouble with the authorities, not on his own account, but by reason of his connection with his brother. His brother had been a soldier in the Mbutu government and subsequently for the Kabila government. When Mr Mbutu fell and Mr Kabila took over, and again when Mr Kabila was assassinated, the present applicant was arrested and taken to prison because, as he said, his brother was being sought in connection in particular with the assassination of Mr Kabila. On the second occasion, in January 2001, the applicant claimed that he had been released from prison by means of what appeared to be an improper arrangement with a prison guard and had been able to come to this country. He claims that if he is returned and interrogated on arrival his connection with his brother will be identified and he is likely to be ill-treated for that reason and also by reason of the (as it is accepted) regrettably inappropriate conditions that obtain in the prisons of that country.[5]The adjudicator gave full weight to the background information that was before him in the form of an expert report and also a report from the US State Department indicating that relatives of those thought to be concerned or associated with the assassination of Mr Kabila may be of interest to the authorities. But he pointed out, importantly, in paragraph 26 of his adjudication:
"... the Appellant has not claimed that he had done anything that would make him personally of interest to the authorities and the likelihood is that he would have been released in due course in any event."
[6]In reaching that view, the adjudicator (although he did not say so specifically) was entitled to take into account the clear finding he made that the applicant had lied to him in respect of the circumstances in which he had managed to leave prison in the Congo, his ability to leave prison and reach this country being a factor that the Secretary of State had taken into account in rejecting his application.[7]The adjudicator went on as follows, in paragraph 27:
"I do take account that on his return to Kinshasa he may be interrogated. It is, however, now almost a year since the assassination of Kabila. The Appellant was not involved in any way in the assassination and the authorities have no reason to think otherwise. It is now eleven months since his brother disappeared. Even if the Appellant has suffered ill treatment in the past there is no reason to think that he would be detained if he is now returned. In view of these findings I have not considered whether the persecution claimed would in fact be for a Convention reason."
[8]Those are findings to which, on the evidence before him, the adjudicator was plainly entitled to come. It is possible that other tribunals of fact might not have taken the same view. I only say "possible". But that is not the question. The question is whether the adjudicator, in the findings that he made, and taking full account of the particular burden placed on him in an asylum case, of which he was well aware, had reached a conclusion that could arguably be said to be perverse or wrong in law. That threshold is not crossed in this case and it is not even approached. I am clear, therefore, that there is no foundation in this application.[9]I would venture to add two further things. Firstly, Mr

Justice Crane said in paragraph 2 of his judgment as follows:

"The Immigration Appeal Tribunal's determination was that the adjudicator's determination was not perverse; proper reasons were given and the conclusions were sound. It is a typically brief determination by the tribunal and it is, therefore, necessary to look at the adjudicator's determination to see whether there was in fact a real prospect of success."
[10]Whilst it is true that, in judicial review applications of a decision of this type by the Immigration Appeal Tribunal, the court finds itself effectively looking not at the IAT decision but at that of the adjudicator (and it does that out of assistance to, and as a concession to, applicants in asylum cases), nonetheless it is necessary always to remember that these proceedings, not only in form but also in substance, are a judicial review of a decision by the Immigration Appeal Tribunal not to permit an appeal to be brought before it. In looking, within that context, at what was decided by the adjudicator, there is a danger that a judicial review application will rapidly degenerate - inappropriately degenerate - into the form of an appeal from the decision of the adjudicator. That, I have no doubt, is what happened in this case. Once one bears in mind that we are concerned, at the end of the day, with whether any reasonable Immigration Appeal Tribunal could have refused permission to appeal, the standard to be applied in this case becomes much clearer.[11]Secondly, this case is a very good example of the extent to which inappropriate applications for judicial review, of which this is one, can extend the judicial process and therefore the presence within this country of an applicant to an unreasonable extent.[12]In Sivasubramaniam v Wandsworth County Court (28th November 2002), this Court had occasion to make some observations about the relationship between judicial review applications and applications to appeal a decision of a lower body. The Master of the Rolls, having emphasised that appeal was the normal route, said that there were special factors which justify the practice of entertaining applications for judicial review of refusals by the Immigration Appeal Tribunal of permission to appeal against decisions of special adjudicators. In asylum cases - and most were asylum cases - fundamental human rights would often include the right to life and the right not to be subjected to torture. The most anxious scrutiny of individual cases was called for and review by a High Court judge was a reasonable, if not an essential, ingredient of that scrutiny. I would respectfully agree with every word of that. It is important to note, however, that what Lord Phillips said was desirable, and possibly necessary, was review by one High Court judge, not the burden of review that has occurred in this case.[13]That can be demonstrated by the time-table. Mr Makombo's application was made on 28th January 2001. Acting with what I would respectfully describe as exemplary despatch, that was refused in a reasoned refusal letter by the Secretary of State on 6th March 2001, some six weeks later. Mr Makombo exercised his right to appeal to an adjudicator. The adjudicator's adjudication was not made until 21st December 2001. Permission to appeal, the matter with which we are concerned, was refused by the IAT on 7th February 2002. Permission to apply for judicial review of that refusal was refused on paper by Mr Justice Goldring on 12th July 2002; and refused again in court, after an inter partes hearing at which the Secretary of State was represented, by Mr Justice Crane on 22nd August 2002. On 8th November 2002 Lord Justice Dyson refused permission to apply to this Court on paper. We, in December 2002, are hearing yet another renewal of that permission. The effect of all this litigation has been that Mr Makombo's stay in this country has been extended for nearly two years after his application was refused by the Secretary of State.[14]All of these steps were, I accept, within the framework of the law as it at present stands. But this is not an application that should have been made to this Court; and it is certainly not an application that should have been renewed in court, it having been refused in clear terms by Lord Justice Dyson.[15]For all those reasons, I would refuse permission.

LORD JUSTICE WARD: Along with two High Court judges and my Lord, I too find this a hopeless application and would dismiss it.

Order

application for permission to appeal dismissed; application for costs assessment stood over and correspondence with Legal Services Commission re public funding for this application to be lodged with court within 7 days.

Cited in 4 later judgments