Dhar, R (on the application of) v Immigration Appeal Tribunal & Anor [2005] EWHC 2725 (Admin)

Case No CO/2798/2005[2005] EWHC 2725 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
Venue Royal Courts of JusticeDate Monday, 7th November 2005
Strand
London WC2
B E F O R E:
CLARE MONTGOMERY QC
(SITTING AS A DEPUTY HIGH COURT JUDGE)
Between
THE QUEEN ON THE APPLICATION OF ALOK KUMAR DHARClaimant-v-
Between
IMMIGRATION APPEAL TRIBUNALDefendantTHE SECRETARY OF STATE FOR THE HOME DEPARTMENTInterested Party
Computer-Aided Transcript of the Stenograph Notes ofSmith Bernal Wordwave Limited190 Fleet Street London EC4A 2AGTel No: 020 7404 1400 Fax No: 020 7831 8838(Official Shorthand Writers to the Court)
MR EWB FRIPP (instructed by Messrs DJ Webb & Co) appeared for CLAIMANT for THE DEFENDANT DID NOT ATTEND AND WAS NOT REPRESENTEDMISS S CHAN (instructed by The Treasury Solicitor) appeared for INTERESTED PARTY
J U D G M E N TMonday, 7th November 2005
[1]THE DEPUTY JUDGE: This is an application for judicial review of the decision of the Immigration Appeal Tribunal of 15th March 2005 to allow the appeal of the Secretary of State for the Home Department from the decision of the adjudicator, Mrs Clarke, given on 4th June 2004 and to remit the case for rehearing by a different adjudicator or panel.[2]The adjudicator allowed the claimant's appeal to remain in the country on asylum and human rights grounds. The claimant in his claim form for judicial review raises two issues. First, whether the Immigration Appeal Tribunal had jurisdiction to hear the appeal since the claimant asserts no point of law was involved in the decision of the adjudicator. Second, whether the Immigration Appeal Tribunal were right to remit the case for rehearing by an adjudicator other than Mrs Clarke. The law[3]The powers of the Immigration Appeal Tribunal are, or at least were at the relevant time, statutorily defined as follows. Under section 101(1) of the Nationality, Immigration and Asylum Act 2002:
"A party to an appeal to an adjudicator under section 82 or 83 may, with the permission of the Immigration Appeal Tribunal, appeal to the Tribunal against the adjudicator's determination on a point of law."
Section 102(1) provides:
"On an appeal under section 101 the Immigration Appeal Tribunal may - ... (c) remit the appeal to an adjudicator."
[4]I turn then to the issues. The first issue is whether the Immigration Appeal Tribunal had jurisdiction to hear the appeal. By virtue of section 101(1) the Secretary of State could only appeal to the Immigration Appeal Tribunal if a point of law was involved in the adjudicator's determination of 4th June 2004. Two possible points of law have been identified by Miss Chan on behalf of the Secretary of State.[5]The first point suggested is that there was a failure by the adjudicator to understand or apply the principles established in Horvath v Secretary of State for the HomeDepartment [2001] 1 AC 489; that is whether Bangladesh, in the context of this case, provided the claimant with sufficiency of state protection (the sufficiency point).[6]The second possible point of law identified is the failure by the adjudicator to give reasons for her finding on the sufficiency issue (the reasons point). The sufficiency point[7]It is suggested by Miss Chan that the adjudicator must have misunderstood or misapplied the principles set out in Horvath. Although it is right to say that the adjudicator did not, in her decision, refer explicitly to Horvath, she did refer to the issue of sufficiency of protection as being the main issue before her (see paragraph 12). At paragraph 16 she expressly considered the political situation in Bangladesh and in particular the result of the 2001 election for the purpose of assessing the sufficiency of protection. She said:
"Accordingly, I do not find that simply because the BNP are in power there is a sufficiency of protection."
[8]This language, in my judgment, does suggest the adjudicator understood and applied the Horvath principle. Although nothing further is said about the principle expressly, I cannot be satisfied that she failed to understand or apply Horvath in the way that has been suggested.[9]I am fortified in this conclusion by the fact that, firstly, Miss Chan accepts that it would have been open to the adjudicator to reach the conclusion she did on a correct application of the Horvath principles and therefore no inference can be drawn from the result of the adjudication in support of the Secretary of State's contention. Secondly, although the suggested misunderstanding of Horvath was raised in the grounds of appeal before the Immigration Appeal Tribunal, the tribunal itself does not appear to have concluded that the adjudicator fell into the error of law in failing to apply or understand Horvath. For these reasons I do not consider the first suggested issue of law arose so as to permit an appeal to the Immigration Appeal Tribunal. The reasons point[10]In my judgment the adequacy of any reasons can only be assessed once the ambit of the areas in factual or legal dispute between the parties have been identified. Unfortunately it has not been easy in this case to identify those areas of dispute. It is common ground between the parties that sufficiency of protection was raised, both in the original decision letter of the Secretary of State, dated 27th February 2004, before the adjudicator and before the Immigration Appeal Tribunal.[11]However, that is as far as the agreement goes. It is in issue between the parties whether the area of dispute, in connection with the sufficiency of protection, was a factually and legally narrow one concerned only with the effect of the change of regime following the Bangladeshi general election in 2001 and its impact upon the local context and particular circumstances of the claimant, or, as the Secretary of State for the Home Department now contends, whether the sufficiency issue was a wider issue in which the ability and willingness of the Bangladeshi authorities generally to provide protection against religious and political mistreatment, as well as private malice and corruption was in issue, and in connection with which the question of relocation was of central importance.[12]What is clear is that that wider issue was raised in the decision letter of February 2004. In that letter the Secretary of State referred generally to the protection provided under the constitution of Bangladesh by its courts and law enforcement authorities. The letter expressly asserted that the authorities were able and willing to offer effective protection against mistreatment of the type identified by the claimant. In addition the letter also asserted that there were some parts of Bangladesh where the claimant might not have a well-founded fear of persecution and to which he might reasonably be expected to go.[13]Thereafter it is less than clear what was in issue and what issues were determined by the adjudicator. In paragraph 12 of the adjudicator's decision she identifies the issues before her as being whether there was sufficiency of protection and whether the claimant could relocate. It is not, however, clear from her adjudication whether the issue was argued or considered under the wider or the narrower basis. In her only explicit reference to the issue, the adjudicator stated in paragraph 16 that she "does not find that simply because the BNP are in power that there is sufficiency of protection".[14]I entirely accept Mr Fripp's submission that, in assessing the adequacy of the adjudicator's reasoning, I should be guided by the remarks of Maurice Kay J in the case of Bahrami v Immigration Appeal Tribunal [2003] EWHC 1453 Admin 8. It follows that I accept that an adjudicator need not deal with every point at length. Nevertheless, as Mr Fripp and Maurice Kay J recognised in Bahrami, the determination by the adjudicator should be sufficiently reasoned to enable the parties, and any appellate or reviewing body, to see why a particular issue was decided in a particular way. The court, must, as Maurice Kay J observed, read the judgment as a whole in a common sense way to see if it is sufficiently reasoned.[15]Applying the principles set out in Bahrami, I am unable to identify why the adjudicator reached the decision that she did on sufficiency of protection. It is not clear to me whether she reached the decision on the grounds that the state of Bangladesh was unable or, alternatively, unwilling to protect the claimant. It is equally unclear whether she reached the decision on the basis that the only relevant consideration was the possible impact of the 2001 election (or local conditions in the district where the claimant lived), or whether her decision was based on the evidence relating to the wider national conditions applicable to the whole of Bangladesh, whichever party was in power, and wherever the claimant might be located.[16]In the circumstances I am not satisfied that the decision was sufficiently reasoned because it is not possible to establish with any certainty the basis upon which the adjudicator reached her conclusion. That being so, in my judgment, the decision of the adjudicator did involve a point of law, namely one as to the sufficiency of her reasoning, which the Immigration Appeal Tribunal had jurisdiction to deal with. Although the language of the Immigration Appeal Tribunal is itself less than clear on the issue, it is apparent from paragraphs 9 and 10 of their judgment that they also concluded that the reasoning of the adjudicator was insufficient.[17]For these reasons I consider that the Immigration Appeal Tribunal had jurisdiction to consider the appeal and the first ground upon which judicial review is sought must fail.[18]The second issue raised by the claimant is whether the Immigration Appeal Tribunal were right to remit the case to an adjudicator other than Mrs Clarke. It is accepted on both sides that the Immigration Appeal Tribunal had power to remit, with a direction for the case to be heard by a different adjudicator. Mr Fripp contends that the decision was, however, unfair since it had the effect of depriving the claimant of the positive findings of the adjudicator in relation to his credibility.[19]In my judgment the fact that the claimant will lose the benefit of a positive conclusion in his favour on the issue of credibility is a relevant consideration which the Immigration Appeal Tribunal has to take into account. However, it is but one factor for the tribunal to take into consideration. In a case such as this, when considering the question of remission, they must also consider:(1) the nature and extent of the flaws in the original hearing or the reasoning given by the adjudicator;(2) the likely ambit and extent of any new hearing, whether before the existing adjudicator or a new adjudicator; and(3) whether it is fair and reasonable to expect the original adjudicator to be able to correct any errors that might have been made in the first hearing.[20]I consider that in this case it was reasonable and fair for the Immigration Appeal Tribunal to direct this claimant's case be heard by a different adjudicator, since due to the absence of reasons it was not possible for the Immigration Appeal Tribunal to make a confident assessment that remitting the matter to the original adjudicator would enable the appeal to be disposed of fairly and expeditiously in the way that Mr Fripp contends.[21]For that reason also I would dismiss the second ground upon which this judicial review is based.[22]MISS CHAN: I am most grateful, thank you.[23]THE DEPUTY JUDGE: What is the position? Do you need a certificate or not?[24]MR FRIPP: The litigation has been privately funded. I understand that those instructing my learned friend do not seek their costs and so there would simply be no order for costs, the costs would follow the event. My Lady, may I very quickly take instructions on one point?[25]THE DEPUTY JUDGE: Certainly. I will say no order for costs then.[26]MISS CHAN: Yes, thank you.[27]MR FRIPP: My Lady, my instructing solicitor is simply taking instructions from the lay client.[28]THE DEPUTY JUDGE: As long as you do not mind me sitting here. It is a long way to my room. Take your time.[29]MR FRIPP: We are simply taking instructions as to whether there is any --[30]THE DEPUTY JUDGE: I will wait.[31]MR FRIPP: My Lady, there is no further application. So simply no order as to costs.[32]THE DEPUTY JUDGE: No order as to costs. Can I thank counsel for their great assistance.[33]MISS CHAN: Thank you very much.[34]MR FRIPP: Thank you very much.