SA (Clarificatory questions from IJs, best practice) [2006] UKAIT 00017 (27 February 2006) [2006] UKAIT 00017

UKAIT
SA (Clarificatory questions from IJs, best practice) [2006] UKAIT 00017 (27 February 2006)
[2006] UKAIT 00017 · 2006-02-27
[1]SA (Clarificatory questions from IJs – best practice) [2006] UKAIT 00017 ASYLUM AND IMMIGRATION TRIBUNAL Date of hearing: 7 th February 2006 Date Determination notified: 27 February 2006 Before Mr Justice Hodge OBE, President Dr H H Storey, Senior Immigration Judge Mr A Jordan, Senior Immigration Judge Between SA APPELLANT and Secretary of State for the Home Department RESPONDENT For the Appellant: Mr J Walsh (Counsel) For the Respondent: Mr M Blundel, Senior Presenting Officer DETERMINATION AND REASONS There are procedural matters which often lead to the need for an intervention such as a request to the witness by the Immigration Judge to confirm the contents of any statement when that point has been overlooked by an advocate. In the main the best practice for judges in this field is to reserve until the end of evidence in chief, cross-examination and re-examination any significant points of clarification that they may want help with. An appellant's claim is of the first importance to that appellant. There is often pressure on court lists and periodically, though rarely in this jurisdiction, it is difficult to conclude the work in a court list in a day. It is not however good practice to give an appellant the impression that his case will be given anything other than the time that is needed to hear it. A criticism of an advocate asking open questions may be appropriate from a judge. Equally it may be right to require an Advocate to move on to a fresh point once the judge has understood the matter being dealt with. But it is not good practice to justify these needs purely by referring to the weight of the list or to an apparent wish to curtail the length of the hearing. The appellant born 21 st March 1958 is a citizen of Iran. He arrived in the United Kingdom by lorry on 26 th May 2002. He applied for asylum on 6 th June 2002. The respondent refused his application for asylum and on 31 st July 2002 issued removal directions for the appellant's removal to Iran.[2]The appellant appealed. His appeal was first heard on 19 th December 2002 and his appeal was dismissed on both asylum and human rights grounds. He challenged that decision successfully before the Immigration Appeal Tribunal. In a determination notified on 3 rd December 2003 the IAT remitted the Appeal for a fresh hearing. This took place on 8 th March 2004. In a determination promulgated on 15 th March 2004 the adjudicator Mr P S Aujla again dismissed the Appeal on both asylum grounds and human rights grounds.[3]The appellant again applied for permission to appeal that decision to the Immigration Appeal Tribunal. In a decision dated 27 th May 2004 permission to appeal was granted on the basis that the grounds raised on behalf of the appellant raised arguable issues which merited consideration.[4]By Article 5 of the Asylum and Immigration (Treatment of Claimants etc) Act 2004 (Commencement No 5 and Transitional Provisions) Order 2005 (SI 2005/565) any appeal which immediately before the commencement of the 2004 Act was pending before the Immigration Appeal Tribunal shall after commencement of that Act be dealt with by the Asylum and Immigration Tribunal as if it had originally decided the appeal and it was re-considering its decision. Grounds for permission to appeal[5]It is argued on behalf of the appellant that the adjudicator behaved unfairly whilst hearing the appeal and so erred in law. The adjudicator intervened 15 times during the hearing of evidence and made two other interventions which are challenged.[6]A number of other grounds were advanced which can be dealt with shortly. The adjudicator was criticised for declining to read the determination of the Immigration Appeal Tribunal before hearing the case. In this Tribunal's experience it is, and always has been, common practice for adjudicators, and now Immigration Judges, to read the determination of the Immigration Appeal Tribunal when re-hearing an appeal which had been remitted by the IAT. Equally it was, and remains, common practice not to read earlier determinations by adjudicators which were overturned by the decision of the IAT.[7]The Immigration Judiciary are wholly independent. They are well able to determine cases without being influenced by external factors. Only in the most exceptional circumstances could the reading or not reading of any previous determination by an adjudicator or the Immigration Appeal Tribunal constitute an error of law.[8]In this case the Immigration Appeal Tribunal directed that the Appeal be heard afresh. This is what this adjudicator did. It is not an error of law to consider a case afresh wholly uninfluenced by anything that has gone before particularly where, as here, the appellant had the opportunity to re-present his case in whatever way he chose. The non reading of the determination of the IAT issued on 3 rd December 2003 is not material.[9]The grounds also criticised the adjudicator's determination. It was described by the appellant's representative as poorly drafted with numerous spelling errors and unnecessary repetition. All judges should proofread their decisions in any case with care. It is important to avoid bad grammar, poor drafting and spelling mistakes. But only in the most exceptional of circumstances could a determination which fails these tests be properly described as showing error of law still less material error of law. The determination in this case should have been more carefully proofread. But it is clear what the adjudicator was saying and deciding. He made no error of law in relation to this aspect of the matter.[10]It is further argued that the adjudicator misdirected himself on the findings of credibility and fact. We do not agree. In essence the appellant says he was associated with the Mujahedin for a period of 15 years from the death of his sister-in-law in 1987 until he left Iran in 2002. He said that he rented property to two Mujahedin supporters. He carried leaflets in his taxi at least once a month for at least seven or eight years during this time. He said that he was watched carefully by the authorities during this time.[11]The adjudicator relied on the background country information to say at para. 50:
" The Mujahedin have been responsible for acts of sabotage, violent attacks that victimise civilians and violence against Iranian Government targets in the West. The Iranian regime's treatment of the Mujahedin opposition has been extremely severe, with reports of large numbers of executions and torture although there have not been any recent reports. Known or suspected members face either execution or long-term imprisonment if caught."
[12]Given the appellant's claimed involvement with the Mujahedin the adjudicator found it:
"Totally incredible that the appellant was never before approached by the security forces or arrested and detained on suspicion of involvement with the Mujahedin considering the attitude to the authorities towards that organisation."
[13]We agree with that analysis. We consider that the adjudicator made clear findings of fact. He also gave clear reasons as to why he did not regard the appellant as credible in the claim he put forward at the hearing. Conduct of the appeal[14]It is argued on behalf of the appellant that the adjudicator behaved unfairly whilst hearing his appeal and so erred in law. The adjudicator intervened during the hearing on 17 occasions. He time limited the appellant's counsel submissions. It is alleged that he made inappropriate references to the number of cases he had to deal with on the day and the time this particular case might have taken to hear.[15]We have been much assisted in our consideration of these issues by the very full and clear note taken of the proceedings by Ms Neinhuis of JCWI who attended as one of the appellant's representatives and took notes of the whole proceedings. Fairness[16]It is a basic principle of the English Common Law that proceedings are conducted fairly. Justice must not only be done but must be seen to be done. In R v Secretary of State for the Home Department [1994] 1AC 531 Lord Mustill said:
"What does fairness require in the present case? My Lords, I think it is unnecessary to refer by name or to quote from, any of the oft-cited authorities in which the courts have explained what is essentially an intuitive judgement. These are far too well known. From them I derive that (1) Where an Act of Parliament confers an administrative power there is a presumption that it will be exercised in a manner which is fair in all the circumstances (2) The standards of fairness are not immutable. They may change with the passage of time both in… general and in their application to decisions of a particular type (3 )The principles of fairness are not to be applied identically in every situation. What fairness demands is dependent on the context of the decision, and this is taken into account in all its aspects."
[17]The Asylum and Immigration Tribunal (Procedure) Rules [2005] (SI no. 230) provide at Rule 4: " The overriding objective of these Rules is to secure that proceedings before the Tribunal are handled as fairly, quickly and efficiently as possible ".[18]In WN (DRC) [2004] UKIAT 00213 Ouseley J said when considering a challenge to an adjudicator's conduct of a hearing:
"The real test to be applied, however, is whether the hearing was fair or unfair and whether a fair-minded and informed observer would conclude that there was a real possibility that the adjudicator was biased." (para. 30) "
The risk of cross-examining or appearing to cross-examine can be avoided by an adjudicator in the manner, style or length of questions which he asks." (para. 37) "Questions should not be asked in a hostile tone. They should not be leading questions which suggest the answer which is desired nor should they disguise what is the point of concern so as to appear like a trap or a closing of the net. They should be open ended questions neutrally phrased. They can be persisted in an order to obtain an answer; but they should not be persisted in for longer than is necessary for the adjudicator to be clear that the question was understood, or to establish why it was not answered, or to pursue so far as is necessary the detail underlying the vague answer." (para. 38)[19]Ouseley J again repeated in XS (Serbia and Montenegro) [2005] UKIAT 00093 at para. 25:
"The question that underlies all cases in which, as here, an adjudicator's conduct of the hearing is at issue, is whether the hearing is fair, and whether there was a real possibility that an informed observer would think that the Judge was biased." and at para. 27: "
All the factors have to be considered in the round, because some may give a flavour of what happened without themselves being of any great significance. We emphasise that because, inevitably, in analysing the allegations in the case, they have to be considered separately initially." Further in Oyono [2002] UKIAT 02034 the Deputy President of the Immigration Appeal Tribunal Mr C M G Ockelton said (para. 8):
"It is for the parties to bring out evidence in the order they think appropriate and it is for the parties to put whatever contradictions in the evidence need to be put to the witness. When the evidence has been finished in the sense that there has been examination in chief and cross-examination and re-examination, it may be that the adjudicator wishes to put matters arising out of the evidence to the witness; but the time for that is after re-examination… an adjudicator who intervenes during the course of evidence is running the risk that he will be seen to be taking the side of one party or the other."
Further at paragraph 9 he said:
"All the matters which are now said to have caused unfairness had occurred before the termination of the hearing, it seems to us that it would have been right to put those matters to the adjudicator at the time rather than awaiting a determination. If the hearing was unfair, then waiting for the determination was not necessary before making the allegations arising out of the conduct of the hearing."
The adjudicator hearing of 10 th March 2004[20]It has not been submitted that the manner in which the adjudicator intervened in this hearing was in any way hostile. Nor is it suggested that the adjudicator was in fact biased. The submission on behalf of the appellant is that a fair-minded observer observing the hearing of this case would have concluded that there was unfairness. It is further submitted that the alleged unfairness is so significant as to constitute an error of law.[21]We have necessarily analysed the interventions made by the adjudicator as set out in the note by the appellant's representative. We kept the observations of both parties representatives on those interventions in mind.[22]There were nearly 80 questions put to the appellant and his witness. In the course of that questioning the adjudicator intervened on 15 occasions. On two occasions the interventions were to ask that the particular witness formerly adopt his statement. There were a number of interventions which sought to clarify the position. The appellant was asked how many brothers and sisters he had by the adjudicator. He was asked when he moved to a current address. He was asked the date when he started being given leaflets to take in his car. He was asked when he became a taxi driver. There was a question from the adjudicator as to how long he had spent in a basement when escaping.[23]There were a number of occasions where the adjudicator wanted the witness to answer questions. One concerned when he started participating with the Mujahedin. Another was when the adjudicator wanted a yes or no answer. There was an intervention when the adjudicator stopped the appellant's counsel interrupting during cross-examination.[24]We have considered all these interventions with care and in the context in which they appear to have been made. There is no allegation as indicated of any hostility. The interventions appear to us to have been designed to clarify matters, to request the witness to answer questions and to deal with procedural matters. We do not consider that these interventions taken as a whole can possibly be said to make the manner in which the hearing was conducted as unfair. There seems to us to be some justification for all the interventions we have noted.[25]This is not however to commend the approach taken by the adjudicator. There are procedural matters which often lead to the need for an intervention such as a request to the witness by the Immigration Judge to confirm the contents of any statement when that point has been overlooked by an advocate. Judges often need a brief clarification of dates as they hear evidence. Here some of the interventions by the adjudicator indicated that he had done a thorough pre-reading of the papers. But in the main the best practice for judges in this field is to reserve until the end of evidence in chief, cross-examination and re-examination any significant points of clarification that they may want help with.[26]There were four instances, however, which gave us some cause for concern in our consideration of this complaint of unfairness. In his third intervention the adjudicator apparently asked why the appellant's counsel was asking open questions and remarked " we could be here for three hours ". The ninth intervention appears in fact to have been addressed to the Presenting Officer. The adjudicator said " can you move on please I have two to three other cases to hear" .[27]An appellant's claim is of the first importance to that appellant. There is often pressure on court lists and periodically, though rarely in this jurisdiction, it is difficult to conclude the work in a court list in a day. It is not however good practice to give an appellant the impression that his case will be given anything other than the time that is needed to hear it. A criticism of an advocate asking open questions may be appropriate from a judicial office holder. Equally it may be right to require an Advocate to move on to a fresh point once the judge has understood the matter being dealt with. But it is not good practice to justify these needs by referring to the weight of the list or to an apparent wish to curtail the length of the hearing. However looking at the matter in the round we do not consider that those two interventions can themselves be regarded as creating a sense of unfairness.[28]The final two interventions complained of are where the adjudicator intervened twice in the course of the appellant's Counsel's closing submission. He was asked to wind up and on one occasion it was indicated that he only had two or three minutes more.[29]The adjudicator's Record of Proceedings show that this case took some two hours and five minutes to hear. The Tribunal is aware that the average length of hearing throughout the jurisdiction for asylum cases is one hour twenty minutes. That does not suggest that there was time pressure for this hearing. The adjudicator's Record of Proceedings indicates that he asked the counsel to keep the matters short in submissions.[30]The adjudicator had the benefit of a clear skeleton argument setting out the factual issues in the appeal. In our judgement there were no legal issues of any complexity whatsoever in this case. Members of the Mujahedin or persons associated with that organisation run a real risk of persecution for their political opinions within Iran. The key issue was whether the appellant's claim to be associated with the Mujahedin was credible. Had it been held as credible then refugee status would have followed.[31]The issue before the adjudicator was the credibility of the appellant. The facts he relied on were set out in the submissions of counsel. A reading of all the papers in this case suggests that the adjudicator was properly familiar with the case before the hearing started. He had the benefit of hearing the appellant's oral evidence and that of his witness. We regard in the circumstances of this case that the time given of 20 minutes to the appellant's counsel to make final submissions as adequate. We were un-persuaded by the appellant's counsel during our reconsideration hearing that he had had anything left to say which he was unable to say in the course of his submissions. If there were any such matters he was unable to make them clear to this Tribunal. We do not regard the curtailing of the appellant's representatives submissions in this case as itself pointing to unfairness.[32]As indicated we do not consider the individual interventions made by the adjudicator in this case as being unfair in themselves. Looked at in the round and balancing the 15 interventions against the 65 other questions asked during the questioning of the witnesses and balancing that against the length of submissions we cannot see that there has been unfairness in this case.[33]There is no allegation of bias made against the adjudicator. There is no suggestion that the manner of the adjudicator was hostile towards the appellant. Our analysis of his interventions taken individually and then considered collectively does not in our judgement suggest that the hearing was unfair. We do not accept that there has been an error of law. We have also rejected the other grounds of appeal for the reasons given above. Decision[34]For the reasons given above the decision of the adjudicator to dismiss this appeal on asylum grounds and on human rights grounds stands. Mr Justice Hodge OBE President 14 February 2006