TK (Consideration of Prior Determination, Directions) Georgia [2004] UKIAT 00149 (03 June 2004) [2004] UKIAT 00149

UKIAT
TK (Consideration of Prior Determination, Directions) Georgia [2004] UKIAT 00149 (03 June 2004)
[2004] UKIAT 00149 · 2004-06-03
[1]APPEAL No. TK (Consideration of Prior Determination, Directions) Georgia [2004] UKIAT 00149 IMMIGRATION APPEAL TRIBUNAL Date of hearing: 18 February 2004 Date Determination notified: 3 June 2004 Before Mr C M G Ockelton (Deputy President) His Honour Judge Huskinson (Vice President) Mr D J Parkes (Acting Vice President) Between TK APPELLANT and Secretary of State for the Home Department RESPONDENT For the Appellant : Ms C. Record, counsel, instructed by Ashgar & Co. For the Respondent : Mr C. Buckley, Home Office Presenting Officer DETERMINATION AND REASONS The Appellant is a citizen of Georgia, born on 3 October 1974. She appeals to the Tribunal, with leave, from the Determination of Mr P.D. Southern, Adjudicator, promulgated on 7 October 2003, whereby he dismissed the Appellant's appeal on asylum and grounds and human rights grounds against the Respondent's decision to refuse the Appellant asylum, and to refuse her leave to enter the United Kingdom and to give directions for her removal to Georgia.[2]The principal matter raised in this appeal is a procedural matter as to the Adjudicator's approach to a prior Determination promulgated on 21 November 2002 by Mr J.J. Neyman, Adjudicator, whereby Mr Neyman dismissed the appeal by the Appellant's husband on asylum and human rights grounds. In these circumstances the Appellant's claim can be briefly summarised.[3]She was born in Tbilisi in Georgia. After her marriage she continued her education which was completed in 1997 and she then worked as a teacher. She says that her problems first began on 1 November 2001 when she and her family were at a family party. At about 10 pm two cars pulled up outside her house and six men emerged and started shooting at the house and calling out her husband's name. The party ran out of the house and avoided injury, save that a cousin of her husband's was shot in the knee. About thirty minutes later the security police came to the house and took her husband away, without telling the Appellant anything. The husband was detained for about ten or eleven days and eventually was released through payment of a bribe. The Appellant says that she asked her husband what was happening and he said that he had problems and would not tell her anything more, but he said that things were dangerous for her to stay at home and that they should get into hiding. They went to live with an aunt in Tbilisi where they stayed in hiding. The Appellant says that she heard from neighbours that security forces were asking about her husband's whereabouts and, although they all needed to flee from Georgia, they only had enough money for her husband to flee. He left on 9 March 2002 and came to the United Kingdom where he applied for asylum. The Appellant says she continued to stay in hiding with her son at the aunt's house.[4]The Adjudicator summarised the Appellant's account as to what happened thereafter in paragraphs 14 to 16 of the Determination which are in the following terms:
'14. The next event described by the Appellant in her written statement was on 20 November 2002. The Appellant and her son had returned home as she thought the situation may have improved. However, when they arrived she discovered from neighbours that the police were asking about her husband's whereabouts. She said therefore that she returned straightway to her aunt's house only to find that in the short time they had been away two men from the security police had arrived at the aunt's house asking about her whereabouts. The following day a neighbour telephoned the aunt's house to say that the Appellant's own house had been burnt down. The Appellant's father-in-law reported this event locally and a certificate is produced by the Appellant which he says confirms the event. There are also some photographs. 15. The Appellant says that it was then necessary to leave the aunt's house and they moved into a vacant property belonging to a friend, again in the region of Tbilisi. Relatives raised enough money between them for an agent and the Appellant came to the United Kingdom. There was insufficient money for her son to accompany her and he remains in Georgia with her husband's parents. 16. Finally, since arriving in the United Kingdom the Appellant has heard from a neighbour that the KGB has left two summonses for her and her husband to attend their office or the police station and this, the Appellant says, demonstrates that her life is still in danger in Georgia and so she cannot return.'
[5]The Appellant's husband also gave evidence before the Adjudicator. We regard it as important to note that his evidence was precisely that offered at his own appeal hearing, where it had been rejected by the Adjudicator as being untrue (as noted in paragraph 3 of the Adjudicator's Determination of this appeal). In summary, the husband's account was that he became of adverse interest to the security police by reason of his becoming a member of Mkhedrioni in 1992, which was a temporary military group supporting the president. This group became liable to be hunted down after the change of government in 1997. In November 1997, the husband says, he was detained and beaten, but was able to be released to compete in the European Wrestling Championship (he being a leading performer in that sport). He had a further incident with the police in January 1999. In that month the husband decided the family should move to Moldova where the husband was able to obtain Moldovan citizenship because he was wrestling for Moldova. In October 1999 he competed in the world championship judo competition in Birmingham but fell into difficulties because, contrary to threats to do otherwise, he won his wrestling match. This put him at risk of violence from the Chechens. The husband says that he returned to Moldova after this tournament and in January 2000 went back with his family to Georgia to celebrate the new year with his wife's mother. In spring 2000, at a time when the Appellant's husband says he was living alone, men came to his home, beat him and took him away in the car. He says he was taken to a bridge and told 'either jump off the bridge or be shot'. He jumped off and the men started shooting at him but he was able to escape without injury. Later the husband went to Romania to compete in other sporting events and upon return to where he was staying he found a friend's car had been burned out, which he took as a message of warning because the friend kept Georgian people in the house. Because of this the husband says he decided to return to Georgia and stay in hiding, which he did at the end of 2000 when he rejoined his wife who was then living with an aunt. The husband then went on to describe the event at the sister's birthday party on 1 November 2001 that the Appellant herself had described. He said that after he had been arrested and taken away he was beaten and interrogated each day during his ten or eleven day detention and after he was released, following payment of the bribe, he stayed in hiding until he left Georgia on 9 March 2002, leaving his family with his wife's aunt in Georgia.[6]The previous Adjudicator, Mr J.J. Neyman, disbelieved the husband's account and dismissed his appeal on asylum and human rights grounds because of this adverse credibility finding. The husband sought leave to appeal to the Tribunal but this was refused. It may be noted that the present Adjudicator, Mr Southern, stated at paragraph 22 that he would have reached a similar conclusion relating to the Appellant's husband's evidence rejecting as untrue, as did Mr Neyman, each and every one of the incidents upon which the husband relied.[7]The substance of the Appellant's appeal in the present case arises in the following manner. Clearly there existed in documentary form the Determination of Mr Neyman promulgated on 21 November 2002 in relation to the husband's appeal. A question arose as to whether this should be available to the present Adjudicator. The procedure regarding this took the following course:(i) On 15 August 2003 Mr M.J. Blandy, Adjudicator, gave various directions including a direction that the respondent should serve a copy of Mr Neyman's Determination so that this would be available at the hearing of the Appellant's appeal(ii) The Appellant's representatives took exception to this direction and they applied to the Deputy Regional Adjudicator who, on 11 September 2003, stated the following:
'You object to the directions given by the Adjudicator for the production of the husband's Determination and the other documents relating to the husband's application for asylum. Your client based her claim on the basis of her husband's activities and as such the Home Office would be entitled to cross-examine your client and her husband in relation to it. In the circumstances it would only be right for the Adjudicator to have that information before him. I agree that the Determination in the husband's case should not be before the Adjudicator. The Adjudicator's direction to that extent is rescinded.'
[8]When the matter came before the present Adjudicator, there was no representation on behalf of the Respondent and accordingly there would not be any cross-examination. The present Adjudicator recorded the Deputy Regional Adjudicator's response which is set out above and then in paragraph 5 of the Determination he stated as follows:
'Counsel for the Appellant did not seek to resist that amended direction. The difficulty, of course, was that the Respondent was not represented at the hearing and so there would be no cross-examination on the basis of information available to the Respondent relating to the husband's appeal. I indicated to counsel for the Appellant that I was minded to take a different view with regard to the Determination in the Appellant's husband's appeal and that I would read it before the hearing commenced. I reached this decision because the Appellant had prepared for the hearing in expectation of a cross-examination based upon the husband's Determination and so would not be disadvantaged if I had available to me details contained within the Determination. I regarded the Determination of the husband's appeal as an authoritative Determination of the facts relating to the husband's evidence as at 15 November 2002. I indicated that I would be happy to hear any evidence relating to matters subsequent to that hearing but that I was not prepared to revisit the decision that had already been made by the first Adjudicator in relation to the Appellant's husband's evidence. The Appellant's case was that her husband had not disclosed to her any of the difficulties he had experienced as were set out in his own asylum claim and therefore the adverse credibility finding reached by the Adjudicator in respect of the husband's evidence did not mean that a similar view would necessarily have to be taken of the evidence of the Appellant herself.'
[9]We were told by Miss Record, who appeared for the Appellant before the Adjudicator, that the Adjudicator gave this indication at the commencement of the hearing and then retired to read the Determination of Mr Neyman in respect of the Appellant's husband's case. Having done so, the case then proceeded. Miss Record confirmed that she and her client were aware of the contents of Mr Neyman's Determination and that she and her clients were also aware throughout the hearing that the Adjudicator had read this Determination.[10]In support of the Appellant's appeal, Miss Record relied upon the grounds of appeal and advanced the following contentions:(i) The present Adjudicator should have followed and been bound by the direction contained in the Deputy Regional Adjudicator's letter.(ii) The present Adjudicator should have recognised that Mr Neyman's Determination was not part of the Respondent's case, in that it had not been formally put forward by the Respondent. The Adjudicator should therefore have recognised that, as the proceedings were adversarial and not inquisitorial, the Determination of Mr Neyman was not part of the evidence adduced in the case and should not have been looked at by the Adjudicator.(iii) Prior to the hearing the Appellant and her husband, and indeed she herself, had been proceeding on the basis that the Adjudicator would not read the Determination in the husband's case.(iv) The present case was a case for cross-examination and the Adjudicator should only have reached an adverse credibility finding in respect of the husband's evidence after hearing him cross-examined. He should not have treated Mr Neyman's Determination as authoritative as to the husband's evidence.(v) The Appellant perceived herself to have been the subject of an unfair hearing.(vi) There was also a point regarding the interpreter which we will deal with separately below.[11]After hearing Miss Record develop her submissions, the Tribunal indicated to Mr Buckley that it did not need to hear from him.[12]Before coming to the reasons why the Tribunal concludes that the Appellant's appeal must be dismissed, it is helpful to set out first a provision in the Nationality, Immigration and Asylum Act 2002 and, secondly, a provision in the Immigration and Asylum Appeals (Procedure) Rules 2003. Section 85(4) of the Act provides:
'(4) On an appeal under Section 82(1) or 83(2) against a decision an Adjudicator may consider evidence about any matter which he thinks relevant to the substance of the decision, including evidence which concerns a matter arising after the date of the decision.'
[13]Rule 48(1) of the 2003 Rules states:
'An Adjudicator or the Tribunal may allow oral, documentary or other evidence to be given of any fact which appears to be relevant to an appeal or an application for bail, even if that evidence would be inadmissible in a court of law.'
[14]As regards the contention by Miss Record that the Adjudicator was effectively bound by the direction of the Deputy Regional Adjudicator, the Tribunal cannot accept that this is correct. The Adjudicator hearing the case is a master of the proceedings before him in accordance with the statutory provisions governing such hearings. Section 85(4) expressly indicates that an Adjudicator can consider evidence about any matter which he thinks relevant to the substance of the decision appealed against. An Adjudicator is not to be deprived of this power by a previous procedural direction from another Adjudicator, whether the Deputy Regional Adjudicator or otherwise. Of course, if a decision to depart from a prior direction meant that a party was disadvantaged, in the sense of being unprepared to deal with the case on the new basis, then that might be a case for an adjournment. However, in the present case, the Appellant and her husband and her counsel had all read the Determination and were expecting cross-examination of the husband. It has not been suggested that their preparation of the case would have been different if they knew the Adjudicator was going to read the Determination. There was no application for an adjournment and there was and is no reason to suppose that an adjournment was necessary in the interests of justice.[15]On the separate question of whether, quite apart from the question of being bound by the Deputy Regional Adjudicator's direction, it was open to the Adjudicator to look at Mr Neyman's Determination, once again the Tribunal considers that Section 85(4) and Rule 48(1) answer the question. The Adjudicator, having concluded that Mr Neyman's Determination was relevant to the substance of the decision being appealed against, was entitled to look at Mr Neyman's Determination – and he was entitled to do so 'even if that evidence would be inadmissible in a court of law', see Rule 48(1).[16]As regards the argument by Miss Record that this was a case where the claimant's husband was prepared for cross-examination and that it was unfair for the case to be decided without the husband's evidence being cross-examined and considered for credibility by the Adjudicator, the Appellant and her husband can scarcely demand cross-examination and complain of unfairness if he is not cross-examined.[17]We turn next to the question of whether the Adjudicator erred in treating Mr Neyman's Determination as authoritative on the question of the husband's evidence. For the reasons set out below we conclude(a) that the Adjudicator was entitled to do so on the facts of this case, and(b) that in any event the Adjudicator in fact considered the husband's evidence on its own merits.[18]The Tribunal considers it important to notice that in the present case the Appellant's appeal was based upon a fear of persecution because of the experiences of her husband, rather than anything that she has herself done or been perceived to do: see paragraph 3 of the Determination. It is also important to note that in paragraph 3 the Adjudicator records that:
'Counsel for the Appellant confirmed that the evidence of the husband to be tendered in support of the wife's appeal was precisely that offered at his own appeal hearing, which evidence was rejected by the Adjudicator as being untrue.'
[19]In these circumstances the Tribunal considers that not only was the Adjudicator entitled to read Mr Neyman's Determination, notwithstanding the arguments to the contrary which have been considered and dealt with above, but was also entitled to conclude that it would be wrong to revisit Mr Neyman's decision in relation to the Appellant's husband's evidence. Were the Adjudicator not entitled to take this course, the following extraordinary circumstance could arise. The head of a family, call him X, claims asylum on the basis of his own account and loses on the grounds that his account is disbelieved. There follows thereafter a succession of separate members of X's family who each makes his/her own asylum application and each expressly accepts that the risks which they fear are based on the risks to X as head of family. If Miss Record's submissions were correct, then there could be a succession of hearings where a succession of Adjudicators, each deprived of all previous Adjudicator's Determinations, could be asked to reappraise over and over again the same basic account from X, being an account on which all the successive family members were relying as showing that they were at risk because X was at risk. Unless some very good reason was advanced to the contrary, for example, compelling new evidence to show that X's evidence (which originally had been disbelieved) was mistakenly appraised by the original Adjudicator, a future Adjudicator is, in the Tribunal's view, not merely entitled to read the Determination in X's case but also to treat it as determinative as to X's account.[20]In the present case, no such compelling new evidence is alleged to have been available. It is merely suggested that so far as the Appellant's husband's account is concerned (which he was tendering to the Adjudicator in exactly the same terms as he tendered it to Mr Neyman, see paragraph 3 of the Determination) the Appellant's husband should have had another chance to persuade another Adjudicator that his story was credible. The only extra material was supporting evidence from the Appellant herself as to a small portion of the husband's account – the Appellant had indicated that she did not herself know of the husband's alleged problems prior to 1 November 2001.[21]We are assisted in reaching this conclusion by the starred Tribunal determination in Devaseelan [2002] UKIAT 00702 . Devaseelan is distinguishable to the extent that that case was concerned with a second Adjudicator hearing a second appeal by the same applicant, whereas in the present case the Adjudicator was concerned with the first appeal by the Appellant (the wife) who was relying upon the claimed risk to her husband, whose case had been determined in a previous appeal decided by the Adjudicator, Mr Neyman. However, the general approach of the Tribunal in paragraphs 37 to 42 of Devaseelan as to the extent to which matters can properly be relitigated are of importance and are of relevance to the present case. Of particular relevance is the approach identified in paragraph 41 as being the approach to adopt where an applicant claims that his removal would breach Article 3 for the same reasons that he claimed to be a refugee. This indicates 'If before the second Adjudicator the Appellant relies on facts that are not materially different from those put to the first Adjudicator, and proposes to support the claim by what is in essence the same evidence as that available to the Appellant at that time, the second Adjudicator should regard the issues as settled by the first Adjudicator's Determination and make his findings in line with that Determination rather than allowing the matter to be relitigated.' We are aware that there was some extra evidence (namely the Appellant's own evidence) and that this was not available at the hearing of the husband's appeal as she was not in the country. However bearing in mind that (as pointed out in paragraph 20 above) her evidence only supported a small portion of the husband's account and bearing in mind that the husband's evidence as offered in the Appellant's appeal was precisely the same evidence as offered in his own appeal (which had been disbelieved), the Tribunal concludes that the Adjudicator acted consistently with the principles in Devaseelan in treating Mr Neyman's Determination as authoritative as to the credibility of the husband's evidence as given to Mr Neyman and as offered again to the Adjudicator.[22]Quite apart from the foregoing, the Adjudicator in the present case did in fact himself consider the merits of the husband's evidence: see paragraph 6 above. Thus it cannot in any event be said that the Adjudicator rejected the husband's account without directing his own mind to it and reaching his own view in respect of it.[23]As regards the evidence of the Appellant regarding more recent matters, i.e. matters which took the account forward beyond the husband's account, the Adjudicator gave separate and detailed consideration to this part of the Appellant's evidence and disbelieved it. He gave clear and sufficient reasons for disbelieving this evidence and these reasons are not challenged in the grounds of appeal on their own account. The rejection of the Appellant's evidence is merely challenged on the basis that the Adjudicator came to consider this evidence with a biased eye – i.e. because he had already concluded against the Appellant's husband's account of the basis of Mr Neyman's Determination. If the Adjudicator had not examined the Appellant's evidence regarding these later events on their own merits and had instead disbelieved her evidence merely because he had disbelieved the earlier part of the account (as given in the husband's evidence) then this would have been an error. However, the Adjudicator did give separate consideration on the merits to the Appellant's evidence and gave a reasoned decision for disbelieving the Appellant's account of later events. The fact that he reached these conclusions against a background knowledge that the husband's evidence was not to be believed does not render such a decision flawed.[24]There was a separate and subsidiary matter raised by Miss Record. She contended that the feeling of unfairness which the Appellant had was increased by the fact that the interpreter before the Adjudicator was also present as the interpreter during the two screening interviews. However, the Adjudicator gave separate consideration to this point in paragraph 6 of the Determination and reached a conclusion that was clearly open to him to the effect that this was no reason for the hearing to be adjourned.[25]We conclude that the Adjudicator was entitled to proceed in the manner he did and to read Mr Neyman's Determination and to accord it the significance which he did. He was also entitled to reject the Appellant's separate evidence as being not credible for the detailed separate reasons given by him. Whatever may be the Appellant's subjective feelings, there is no objective basis for doubting the fairness of the hearing before the Adjudicator or his Determination.[26]In the result therefore we dismiss the Appellant's appeal. HIS HONOUR JUDGE HUSKINSON VICE PRESIDENT

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