GB (Evidence not probative is irrelevant) Zimbabwe [2005] UKAIT 00153 (7 November 2005) [2005] UKAIT 00153

UKAIT

GB (Evidence not probative is irrelevant) Zimbabwe [2005] UKAIT 00153 (7 November 2005)

[2005] UKAIT 00153 · 2005-11-07

[1]GB (Evidence not probative is irrelevant) Zimbabwe

[2005] UKAIT 00153

ASYLUM AND IMMIGRATION TRIBUNAL Date of hearing: 6 October 2005 Date Determination notified: 7 November 2005 Before Ms C Jarvis Senior Immigration Judge Mr G Jones QC Between GB APPELLANT and Secretary of State for the Home Department RESPONDENT For the Appellant: Mr R Solomon of Counsel instructed by Makanda and Co. Solicitors For the Respondent: Ms R Brown, Home Office Presenting Officer DETERMINATION AND REASONS This case is reported for what we say about the consideration and assessment of evidence and the approach to the assessment of credibility. Evidence which is not probative of any matter that is in issue is evidence which is not relevant. It is not arguable that an Adjudicator or Immigration Judge errs in law in deciding not to give weight to evidence that is irrelevant. [This case was decided before the publication of AA (Involuntary returns to Zimbabwe) Zimbabwe

[2005] UKIAT 00144

CG]. The Appellant appeals against the determination of an Adjudicator, as he then was, and now Immigration Judge (Mr J J Neyman), who in a determination issued on 22 April 2005, dismissed the Appellant's appeal against the Respondent's decision made on 18 January 2005 to give directions for removal from the United Kingdom (UK) following refusal to grant leave to enter as a refugee or on other human rights grounds.

[2]The Appellant, a citizen of Zimbabwe, whose date of birth is given as 13 July 1977, is said to have arrived in the UK on 15 April 2001, or 16 September 2001, ( there are two versions), by air, to join her husband [ ], who had come to the UK on 15 April 2001. The Appellant has a UK born child. The Appellant's husband returned to Zimbabwe in March 2004 and died in hospital on 8 April 2004. The Appellant then claimed asylum in the UK on 22 November 2004, with her daughter, [ ], born on 1 January 2004, as her dependant.

[3]She lodged a written statement of claim, and was subsequently interviewed about the claim on 5 January 2005. The Respondent set out his reasons for refusing the application in a letter dated 14 January 2005.

[4]Before the Adjudicator, the Appellant claimed to have a well-founded fear of being persecuted at the hands of the authorities, and at the hands of groups or individuals within Zimbabwean society, from whom the authorities would not protect her. She claimed that she was a refugee sur place following the killing of her husband, who had been a member of the Movement for Democratic Change (MDC). She herself was a supporter of the MDC and they had become involved with the party in 2000. Her husband had returned to Zimbabwe in March 2004, she said, in order to assess the situation. He then helped the MDC in electioneering, and it was in the course of violence instigated by ZANU-PF members who had attacked her husband, that he was said to have been injured and to have subsequently died from those injuries. Fearing for her safety as the wife of her late husband, who is herself a supporter of the MDC, the Appellant then claimed asylum in November 2004. Summary of the Adjudicator's Findings

[5]The Adjudicator found that the Appellant is a citizen of Zimbabwe, whose date of birth is given as13 July 1977. He came to an adverse finding as to the credibility of the Appellant and her claim. He sets out his reasons for that and his findings of fact, at paragraph 7 of the determination. He noted that the Appellant had arrived in the UK in either April or September 2001. The Adjudicator held that it was common knowledge that those who are significantly opposed to the government in Zimbabwe risk ill-treatment there. He noted that the Appellant's husband had made two applications to vary leave to enter or remain in the UK. These were an application for leave to receive private medical treatment, which was granted, and an application for leave to enter or remain as an investor, which was refused on 9 January 2003. The Adjudicator did not believe the Appellant's claim that her husband did not receive notice of the decision to refuse that second application, there being no evidence to support that contention, and took the view that they had deliberately overstayed their leave, the husband not leaving the UK until 1 March 2004.

[6]The Adjudicator held against the Appellant that she and her husband did not claim asylum earlier. He held against the Appellant that she delayed in lodging her claim to asylum until seven months after her husband was killed in April 2004. She explained the delay in so doing by stating that she had been collecting evidence to support her claim during the intervening period between the death of her husband and 22 November 2004. The Adjudicator did not accept her explanation for the delay because he took the view that someone who genuinely feared being persecuted would apply for asylum reasonably soon after the fear arose, but the Appellant did not do so.

[7]The Adjudicator formed the view that the Appellant and her husband had intended to remain in the UK on a long term basis for economic reasons. He did not find it credible that the Appellant's husband would have returned to Zimbabwe to assess the situation as this was well known from information easily available in the public domain, and they would both have known that it was potentially dangerous for him to return as an MDC member. He took the view that the fact that the Appellant's husband returned showed that he was not in fear for his safety at all and his actions undermined the Appellant's late claim to be in fear herself.

[8]The Adjudicator noted that the Appellant gave contradictory accounts concerning the return of her husband to Zimbabwe in that she had said on the one hand that he went without a passport using Eurostar, and that she does not know how he got from France to Zimbabwe. On the other hand, later, at the hearing, she stated that he had obtained an emergency travel document from the Zimbabwean Embassy in London. The Adjudicator held against the Appellant that she had changed her account and did not accept that the Appellant's husband had obtained a travel document from the Zimbabwean authorities. In the alternative, if he had obtained such a document, it showed that he was not in fear of the authorities. It was not said that the Appellant's husband encountered any difficulties with the authorities on arrival in Zimbabwe. However these matters were looked at, doubt was cast upon the credibility of the Appellant.

[9]The Adjudicator found that the Appellant's account that her husband had been unable to recover his passport from his legal adviser to lack credibility and that the husband could easily have visited the legal adviser to recover the document. He found that there were links between the legal adviser used by the Appellant and her husband, and that a Dunny Derera and a Danny Moyo were one and the same person. He took the view that the Appellant's husband had returned to Zimbabwe using his own passport and that the Appellant also had access to her own properly issued Zimbabwean passport.

[10]The Appellant claimed that on the same day that her husband was attacked, and in the same incident, "Francis Zimhunya, who was a high profile activist in the MDC was shot dead" by a ZANU-PF member of Parliament. Documentary evidence produced, and said to be in support of this aspect of the claim showed that a Francis Chinozvina was killed and not a Francis Zimhunya. At the hearing the Appellant explained the difference by stating that she had "made an error in the second name". The Adjudicator formed the view that the Appellant had in fact failed to memorize correctly a significant detail of an untrue story, and that this further damaged her credibility. He found that the Appellant had failed to show that the death of Francis Chinozvina and the article produced at F1 regarding the killing of Francis Chinozvina had any relevance to the death of her husband or to her claim.

[11]In the light of all the matters referred to, the Adjudicator found the Appellant's claim to lack credibility. He found that even if her story were true, which he found not to be the case, she had not been persecuted in the past and that she is not and never was of any adverse interest to the authorities or anyone else in Zimbabwe.

[12]The Adjudicator then turned to consider documentary evidence said to be personal to the Appellant, as opposed to more general background evidence. He found that a newspaper article showed no more than that the Appellant and her husband were in the UK at the time when the article was written. This fact was not in issue and the article added nothing to the claim.

[13]The Appellant produced a letter said to be from a Mr [ ], of Zengeza, Chitungwiza, dated 25 November 2004. It is addressed "to whom it may concern", and is headed:

"Testimony for the late [ ]"

. The letter states that the writer is a 28 year old MDC member who was injured during an attack on 26 March 2004 when a group of ZANU-PF militia attacked a group of MDC members and supporters at the house of MDC candidate for Zengeza constituency.

[14]Mr [ ] goes on to state that he first met Mr [ ] on 10 March 2004, and that Mr [ ] was said to have returned to Zimbabwe from the UK specifically for the by-election. He states that this surprised him and others but that it made them respect Mr [ ]. He says that he and others campaigned with Mr [ ] in the run up to the elections on 27/28 March. It was dangerous to campaign but they encouraged each other that the MDC would win. He explains that he was then hospitalized following the incident on 26 March, and when he came out of hospital on 2 April, he heard that Mr [ ] was himself in a Harare hospital after having been abducted on 27 March and later dumped on the roadside on 28 March, when a passer by took him to hospital. It is said that Mr [ ] then died in hospital on 8 April 2004.

[15]The Adjudicator finds that the letter does not show that Mr [ ] actually witnessed anything of what was said to have happened to Mr [ ] and that the letter could have been written by anyone. He notes that there is no independent evidence of the standing of Mr [ ] or confirmation that he is a reliable witness. Further, the letter has been lodged by the Appellant and she is not to be regarded as a credible witness herself.

[16]A letter from Dr Uchena of the hospital in Harare states that Mr [ ] was brought to the hospital on 28 March 2004, by people who said that they were passers by who had found him on the roadside. The doctor reports that these people 'allegedly' said that Mr [ ] told them that he had been assaulted by a notorious ZANU-PF group. The doctor confirms that Mr [ ] was no longer giving a comprehensive account on arrival at hospital as his condition was deteriorating. It is confirmed that the cause of death was a sub-arachnoid haemorrhage, and the death certificate shows that to be the case.

[17]Neither the doctor's letter nor the death certificate shows how that haemorrhage was caused. The Adjudicator finds that the doctor's letter merely reflects what the people who brought Mr [ ] to the hospital allegedly stated. The Adjudicator found that there was nothing to link the cause of the death of Mr [ ] with his claimed opposition to the Zimbabwe government.

[18]The Adjudicator went on to find that even if the Appellant's account were to be regarded as true, she had failed to show that her complete lack of involvement with the party, albeit that she called herself a supporter, and her late husband's relatively low level of involvement, would make her of any adverse interest to the authorities. He relied upon N (Zimbabwe)

[2003] UKIAT 00086

, and C (Zimbabwe)

[2003] UKIAT 00015

[19]In summary, the main thrust of the grounds of appeal is by way of challenge to the Adjudicator's adverse credibility findings.

[20]The Senior Immigration Judge, when making an order for reconsideration on 10 May 2005, stated that it was arguable that the Adjudicator had, in placing significant weight upon the fact that the Appellant and her husband did not claim asylum prior to April 2004, ignored the Appellant's account that neither was of interest to the Zimbabwean authorities at that time and that the Appellant only became a refugee sur place following the death of her husband in April 2004. It is further indicated that the Adjudicator has not assessed the evidence of the involvement of the Appellant's husband in the MDC in the UK.

[21]The Senior Immigration Judge further found it arguable that the Adjudicator had erred in his approach to the documentary evidence, contrary to Tanveer Ahmed v SSHD

[2002] UKIAT 00439

, because he had found that the letter from Mr [ ] had been submitted by the Appellant who was not herself a credible witness. He had also ignored the independent reference to Mr [ ] in the background evidence. Submissions

[22]Mr Solomon adopted the grounds of appeal and submitted that they did accurately reflect the situation and the case as it was put to the Adjudicator. He submitted that the Appellant based her case upon her husband's political activities UK and his political activities in Zimbabwe. However, he did not seek to equate the activities in the UK with those in Zimbabwe as the latter were of the greatest significance. The main thrust of the Appellant's case was that as a result of what happened to her husband in Zimbabwe, the Appellant was now at risk on return. We enquired of Mr Solomon whether he was saying that it was at the stage when he husband died that the Appellant's fears might be said to have crystallized. Mr Solomon agreed that this was correct. The husband's activities in Zimbabwe were key and what he did when in the UK was background.

[23]Ms Brown submitted that there was no material error of law on the part of the Adjudicator, that the grounds of appeal were simply disagreements with the findings and did not disclose any material error of law. It was clear that so far as delay was concerned, the Adjudicator relied in the main on the delay on the part of the Appellant in claiming asylum following the death of her husband. It was a seven month period and it was open to him to find that it was not credible that she would delay so long were she genuinely in fear for her safety. It had plainly been in the Adjudicator's mind as a secondary position that the Appellant's fear was said to be because of her own and her husband's activities, as per her first statement to which the Adjudicator had had regard.

[24]The couple were said to have joined/become supporters of the MDC in 2000 and the UK based activities clearly formed a part of the case. It was open to the Adjudicator to find that there were not good reasons shown for the couple's not making a claim earlier, and the further delay by the Appellant after the death of her husband merely strengthens the Adjudicator's position. It was fully open to the Adjudicator to find it not credible that the Appellant's husband would have returned to Zimbabwe to campaign for the MDC in the elections, knowing the danger in which that might place him. He was also entitled to find that it was not credible that the husband would have returned to assess the situation when the dangers and hardships were common knowledge in the UK. Any such errors as there might have been were minor, did not undermine the determination, and certainly did not amount to perversity on the part of the Adjudicator which was the test that must be passed.

[25]At the conclusion of the hearing, after deliberation, we dismissed the Appellant's appeal and we now give the reasons for our decision. Consideration and Findings

[26]We remind ourselves that when hearing a case by way of reconsideration, the Tribunal must first decide whether or not the determination discloses a material error of law. It is only where that question is answered in the affirmative that it is open to the Tribunal to go on to consider what relief, if any, should be granted, and whether or not fresh evidence, if any, should be admitted.

[27]We also remind ourselves of, and apply as appropriate, the provisions of Section 8 of the Asylum and Immigration (Treatment of Claimants etc) Act 2004 (the 2004 Act), which was brought into force on 1 January 2005. The section is mandatory. It does not require disbelief, but it does require the conduct therein mentioned to be taken into account.

[28]We have before us all the evidence that was before the Adjudicator, including the Home Office Bundle and the Appellant's bundles, including a bundle of case law as well as bundles of evidence, together with a background report from the Home Office, (CIPU October 2004).

[29]We remind ourselves that the burden of proof normally rests with an Appellant and that the standard in a case such as this is normally the lower standard of a real risk, or a reasonable degree of likelihood.

[30]We find that the Adjudicator has set out in some detail his reasons for doubting the plausibility and reliability of the Appellant's account, from paragraph 7 (a) to 7(u), pages 6-11 of the determination. We have summarized his findings and reasons quite fully above. For our part, we have concluded that there is no reason to take issue with the approach to the evidence, the credibility assessment, or the findings, which were open to the Adjudicator on the evidence that he received. We find that any error that there may be does not amount to an error, whether viewed separately or cumulatively, so as to constitute a material error. We remind ourselves that it is for the Appellant to show that the assessment, reasoning and findings of the Adjudicator are such that no reasonable Adjudicator applying the law correctly could have reached them. In other words, it must be shown that they were perverse. The test is a high one. It is not for us to interfere with the determination merely because had we been hearing and deciding the case ourselves, we may have taken a different view as to the facts.

[31]We prefer the submissions of Ms Brown, in finding that it was open to the Adjudicator to accord some negative weight to the fact that there was no claim for asylum made by the couple when both were in the UK. It is clear that the case of the Appellant was based, albeit to a lesser degree than the post late March 2004 events, upon UK based events, and the claim that the couple had become involved with the MDC in Zimbabwe in 2000. It was open to the Adjudicator to find that the explanation given was not satisfactory. We are satisfied that it is not the case that he accorded too much weight to this aspect. It is clear from a careful reading of 7(a)-(c) in particular, that the main focus of the negative weight here was placed upon the failure of the Appellant to lodge her claim within a reasonable time after the death of her husband. It was fully open to the Adjudicator to find that the Appellant had not given a credible, reliable explanation for delaying some seven months after the death of her husband before claiming.

[32]Likewise, for our part, we are unable to see that it is arguable that it was perverse of the Adjudicator to find it not credible that the Appellant's husband would return to Zimbabwe 'because he wanted to assess the situation.' It is not arguable that the Adjudicator was wrong to find that there is a great deal of information in the public domain regarding the situation, albeit that there could be more that does not reach the public due to deliberate acts on the part of the Zimbabwean regime. Nor is it arguable that it is not common knowledge that those linked to the MDC may well find themselves in difficulties. The October 2004 Country Assessment supports such conclusions.

[33]The matter of the route allegedly taken by the Appellant's husband, and the question whether he went with his passport or with an emergency travel document, are further points that the Adjudicator was entitled to take against the Appellant, based upon the evidence that was before him. He found that it was likely that the Appellant's husband returned to Zimbabwe travelling on his own passport. No evidence was produced to support the Appellant's claims in this regard. If it were the case that her late husband used an emergency travel document obtained from the Zimbabwean authorities in London, then it was open to the Adjudicator to find that this showed or tended to show that he was not a person in fear of the Zimbabwean authorities.

[34]The question whether the passports of the Appellant and her husband were returned to them or not, whether by the Home Office or the advisers, is one that the Adjudicator was entitled to answer as he did. He found that both were in possession of their passports. Whilst he may have been mistaken in finding that the evidence of the Appellant showed or tended to show a link between various advisers, this, if it occurred, is not an error that suffices to constitute a material error of law. The compliments slip, or receipt, said to be from Surrey Police, endorsed with a reference number, and the words 'lost property', is not probative of the Appellant's claim to have lost her passport and to have reported that loss to the police.

[35]The Appellant argues that her husband did not receive the notice of refusal to vary limited leave dated 9 January 2003 informing him that his application for limited leave to remain as an investor had been refused. The burden of proof rests with her and it is not arguable that the Adjudicator materially erred in law in finding that it had not been discharged.

[36]In relation to the evidence concerning Francis Chinozvina, Mr Solomon argues that this incident was not part of the core of the Appellant's claim and that the Adjudicator placed too much weight on the inconsistency in the Appellant's evidence regarding his correct name. We remind ourselves that the Adjudicator, at paragraph 7 (l), found that the Appellant had made a mistake over the man's correct name because she had misremembered a significant detail of an untrue story. It is unclear why mention should be made of the incident at all if it were not regarded as of significance within the claim. The incident as recounted might be regarded as seeking to link the Appellant's late husband with a high profile activist in the MDC, thereby increasing the risk to him and in turn the level of risk to the Appellant. We find that it was open to the Adjudicator to find against the Appellant, in relation to credibility, for the reasons given, and to find, as a consequence, that it had not been shown that the killing of this man was in any way linked to the Appellant's late husband.

[37]It is next alleged that the Adjudicator has fallen into error because he fails to consider and assess all the evidence in the round, including the documentary evidence; instead assessing that separately, at 7 (n)-(p), contrary to the guidance of the Tribunal in Tanveer Ahmed. At first blush it appears that this submission by Mr Solomon may have something in it. At 7(n), having found, in the light of all the points going to credibility already referred to, at 7 (m), that the Appellant and her claim are not to be regarded as credible; that even on her own account she has not experienced being persecuted in the past, and that she was and is of no adverse interest to anyone; the Adjudicator then states that he turns to the written evidence submitted by the Appellant (as opposed to the background reports and articles). However, closer examination of the consideration, assessment and reasoning that follows, shows, we are satisfied, that the Adjudicator's approach was correct and that there is no error of law here.

[38]The evidence is to be considered in the round, and weight is to be accorded to all of it, to varying degrees, save that to which it is not possible to attach any weight at all, as per the guidance in Tanveer Ahmed (see also e.g. Karanakaran v SSHD [2000] INLR 122 , CA, and in R v Special Adjudicator ex parte Virjon B

[2002] EWHC 1469

and MT (Credibility assessment flawed – Virjon B applied) Syria

[2004] UKIAT 00307

[39]Nevertheless, it is necessary for an Adjudicator or Immigration Judge to physically set out references to the evidence and deal with each of them, usually chronologically, but certainly in a fashion whereby one point must inevitably follow another, in written form, on the page. That is the first point.

[40]Second, and very importantly, it is to be noted that the evidence referred to at 7(n) – (p) is evidence to which the Adjudicator finds he is unable to attach weight because it lacks probative value.

[41]The Adjudicator finds that an article tending to show that the Appellant and her husband were in the UK at the time when the article was written adds nothing as it is not in issue that they were indeed in the UK at the time in question.

[42]The Appellant produced a letter said to be from a Mr [ ], of Zengeza, Chitungwiza, dated 25 November 2004. We have set out in detail above what the Adjudicator had to say about this evidence and his reasons for rejecting it. The Adjudicator finds that the letter does not show that Mr [ ] actually witnessed anything of what was said to have happened to Mr [ ] and that the letter could have been written by anyone. We note that he provides no detail as to how he is said to have come to know of the fate of the Appellant's husband. The Adjudicator notes that there is no independent evidence of the standing of Mr [ ], nor confirmation that he is a reliable witness. We can find no fault with the assessment, reasoning and conclusions of the Adjudicator.

[43]Mr Solomon submits that there is independent evidence to confirm that Mr [ ] is a reliable witness. This is a reference to the MDC report of 2004 on political violence, at G5 in the Home Office bundle. A person of the same name as the person who purportedly wrote the letter of 25 November 2004 is referred to in the course of the entry for 26 March 2004, where he is described as an MDC youth who was injured following an attack by ZANU-PF militia.

[44]We must disagree with Mr Solomon's submission that this entry in the report constitutes independent evidence of the content of the statement that has been produced and of the position of Mr [ ] within the MDC. We find that the fact that there is mention of a person of that name within the background evidence, in these terms, does not, without more, go to show his independence or reliability. Nor can it be said, on any reading, to constitute independent evidence of the content of his statement in this appeal. We find that the evidence of Mr [ ] is not probative and therefore not relevant.

[45]In the light of what we have already said, given that the letter from Mr [ ] is not to be regarded as probative on any matter in issue, it was, we find, fully open to the Adjudicator to draw an adverse inference from the fact that the letter has been lodged by the Appellant, who is not to be regarded as a credible witness herself. The opposite would equally be true, in that had the Adjudicator found the Appellant to be otherwise a reliable and credible witness, then he would have been entitled to give weight, in that positive light, to probative evidence lodged in support.

[46]A letter from Dr Uchena of the hospital in Harare states that Mr [ ] was brought to the hospital on 28 March 2004, by people who said that they were passers by who had found him on the roadside. It is confirmed that the cause of death was a sub-arachnoid haemorrhage, and the death certificate shows that to be the case. Neither the doctor's letter nor the death certificate shows how that haemorrhage was caused.

[47]The Adjudicator finds that the doctor's letter merely reflects what the people who brought Mr [ ] to the hospital allegedly stated. The Adjudicator found that there was nothing to link the cause of the death of Mr [ ] with his claimed opposition to the Zimbabwe government. Again, we find this to be a correct analysis of the content of the letter. We find that the Adjudicator was correct to take the view that this is not probative evidence and therefore that it is not relevant evidence. It is not arguable that the Adjudicator fell into error of law in assessing this evidence in isolation as was submitted.

[48]Having examined the Adjudicator's reasoning and conclusions, we find that he was correct in finding that none of the evidence referred to in the sub-paragraphs 7(n)-(p) is to be regarded as probative of the issues before him, for the reasons which he clearly sets out in those sub-paragraphs, and which were open to him, based upon the evidence, for the reasons which he there gives.

[49]Evidence which is not probative is not relevant evidence. It follows that it is not arguable that the Adjudicator erred in law in deciding not to take into account and give weight to evidence that was irrelevant.

[50]Mr Solomon next raised a challenge to the findings of the Adjudicator relating to risk on return and to the availability of internal relocation. Having found that the grounds of appeal and the submissions of Mr Solomon raise no successful challenge to the Adjudicators' findings as to credibility and as to fact, we are unable to see that there can, in the circumstances of this particular case, be any successful challenge to these findings either. The Adjudicator correctly went on to consider and dealt with the position of the Appellant both on the assumption that her account were to be regarded as true, and on the assumption that she were to be returned as a failed asylum seeker (7(q) – (t)). Mr Solomon's challenge was on the basis that the authorities would take an adverse interest in the Appellant by reason of her relationship to her late husband, because he was a known low level MDC activist.

[51]We recall that the Adjudicator went on to find that even if the Appellant's account were to be regarded as true, she had failed to show that her complete lack of involvement with the party, albeit that she called herself a supporter, and her late husband's relatively low level of involvement, would make her of any adverse interest to the authorities. We recall that it is not the Appellant's case that her late husband encountered any difficulties at all with the authorities when he re-entered Zimbabwe in late March 2004. The Adjudicator relied upon N (Zimbabwe)

[2003] UKIAT 00086

, and C (Zimbabwe)

[2003] UKIAT 00015

, to support his findings. It was noted that the Appellant's parents and her parents-in-law all continued to reside in Zimbabwe and it was found that the Appellant, who would not be of adverse interest as a failed asylum seeker given that she had no profile of any kind with the authorities, and her daughter, could return to live with family members there. He found that if she were of adverse interest, which he did not accept, that she could go to live elsewhere in Zimbabwe. It was for her to show that this alternative would be unreasonable, and open to the Adjudicator to find that she had not discharged the burden of proof that was upon her.

[52]In our deliberations and in reaching our conclusions, we have been assisted by the judgment of the Court of Appeal in the case of R and Others (CA)

[2005] EWCA Civ 982

27 July 2005 , in which their Lordships gave guidance as to the principles to be applied by the Immigration Appeal Tribunal, and now this Tribunal, when hearing appeals on a point of law.

[53]Making perverse or irrational findings on a matter or matters that were material to the outcome, and failing to give reasons or any adequate reasons for findings on material matters, are both cited as examples of relevant errors of law. As to perversity and the failure to give reasons, the Court of Appeal said this:

"Part 4 Perversity, the failure to give reasons, and proportionality It may be helpful to comment quite briefly on three matters first of all. It is well known that "perversity" represents a very high hurdle. In Miftari v SSHD [2005] EWCA Civ 481 , the whole court agreed that the word meant what it said: it was a demanding concept. The majority of the court (Keene and Maurice Kay LJJ) said that it embraced decisions that were irrational or unreasonable in the Wednesbury sense (even if there was no wilful or conscious departure from the rational), but it also included a finding of fact that was wholly unsupported by the evidence, provided always that this was a finding as to a material matter. We mention this because far too often practitioners use the word "irrational" or "perverse" when these epithets are completely inappropriate. If there is no chance that an appellate tribunal will categorise the matter of which they make complaint as irrational or perverse, they are simply wasting time – and, all too often, the taxpayer's resources – by suggesting that it was. The second preliminary matter is this. Adjudicators were under an obligation to give reasons for their decisions (see reg 53 of the Immigration and Asylum Appeals (Procedure) Regulations 2003), so that a breach of that obligation may amount to an error of law. However, unjustified complaints by practitioners that are based on an alleged failure to give reasons, or adequate reasons, are seen far too often. The leading decisions of this court on this topic are now Eagil Trust Co Ltd v Pigott-Brown [1985] 3 All ER 119 and English v Emery Reimbold & Strick Ltd [2002] EWCA Civ 605 , [2002] 1 WLR 2409 . We will adapt what was said in those two cases for the purposes of illustrating the relationship between an adjudicator and the IAT. In the former Griffiths LJ said at p 122: "[An adjudicator] should give his reasons in sufficient detail to show the [IAT] the principles on which he has acted and the reasons that have led him to his decision. They need not be elaborate. I cannot stress too strongly that there is no duty on [an adjudicator], in giving his reasons, to deal with every argument presented by [an advocate] in support of his case. It is sufficient if what he says shows the parties and, if need be, the [IAT], the basis on which he has acted, and if it be that the [adjudicator] has not dealt with some particular argument but it can be seen that there are grounds on which he would have been entitled to reject it, [the IAT] should assume that he acted on those grounds unless the appellant can point to convincing reasons leading to a contrary conclusion."

In English Lord Phillips MR said at para 19:

"[I]f the appellate process is to work satisfactorily, the judgment must enable the [IAT] to understand why the [adjudicator] reached his decision. This does not mean that every factor which weighed with the [adjudicator] in his appraisal of the evidence has to be identified and explained. But the issues the resolution of which were vital to the [adjudicator]'s conclusion should be identified and the manner in which he resolved them explained. It is not possible to provide a template for this process. It need not involve a lengthy judgment. It does require the [adjudicator] to identify and record those matters which were critical to his decision. If the critical issue was one of fact, it may be enough to say that one witness was preferred to another because the one manifestly had a clearer recollection of the material facts or the other gave answers which demonstrated that his recollection could not be relied upon."

It will be noticed that the Master of the Rolls used the words "vital" and "critical" as synonyms of the word "material" which we have used above. The whole of his judgment warrants attention, because it reveals the anxiety of an appellate court not to overturn a judgment at first instance unless it really cannot understand the original judge's thought processes when he/she was making material findings. What we have said does not absolve an adjudicator of his/her duty of devoting the intense scrutiny to the appellant's case that is required of a decision of such importance. What we wish to make clear, however, is that the practice of bringing appeals because the adjudicator or immigration judge has not made reasoned findings on matters of peripheral importance must now come to an end. "

[54]For our part, we are unable to see that the Adjudicator fell into any material error of law in his approach, assessment, findings and conclusions. For all the above reasons, it is not for us, in the circumstances of this case, to interfere with the Adjudicator's findings in this regard. Nor, we find, has it been shown that the Adjudicator fell into material error in providing no or inadequate reasons to support his findings, in a way that could be regarded as sufficing to vitiate the reasoning, conclusions, or to undermine in any way the final decision

[55]It follows, for all the foregoing reasons, that whilst the grounds of appeal were arguable, the Appellant has failed to show that the Adjudicator fell into any material error of law. In the circumstances we are not entitled to go on to consider what if any relief should be granted. The grounds of appeal remain arguable, but no more than that. The Appellant has not shown that there is any basis upon which the Tribunal may interfere with the Adjudicator's determination.

[56]In the absence of a sustainable challenge by the Appellant, we find that the Adjudicator has done enough to support his reasoning, findings and conclusions, which were open to him. We are not able to identify any material mistake of fact leading to unfairness. Decision

[57]It has not been shown that the original Tribunal made a material error of law. For all the reasons set out above, we uphold the determination of the Adjudicator, as he then was, and dismiss the Appellant's appeal. Catriona Jarvis Senior Immigration Judge Date: 10 October 2005

Cited in 1 later judgment

GB (Evidence not probative is irrelevant) Zimbabwe [2005] UKAIT 00153 (7 November 2005) 2005