VH (Call Witnesses) Moldova [2004] UKIAT 00325 (22 December 2004) [2004] UKIAT 00325

UKIAT
VH (Call Witnesses) Moldova [2004] UKIAT 00325 (22 December 2004)
[2004] UKIAT 00325 · 2004-12-22
[1]VH (Call Witnesses) Moldova [2004] UKIAT 00325 IMMIGRATION APPEAL TRIBUNAL Date of hearing: 20 October 2004 Date Determination notified: 22 December 2004 Before Mr N H Goldstein (Vice President) Mr J Perkins (Vice President) Between VH APPELLANT and Secretary of State for the Home Department RESPONDENT For the Appellant: Mr I Lewis, Counsel For the Respondent: Mr M Blundell, Home Office Presenting Officer DETERMINATION AND REASONS The Appellant, a citizen of Moldova, has been granted permission to appeal to the Tribunal against the determination of an Adjudicator (Mr J F Pullig) promulgated on 26 January 2004 when he dismissed the Appellant's appeal on human rights grounds.[2]The Adjudicator summarised the Appellant's account at paragraphs 14 to 19 of his determination as follows:
"14. The Appellant's father died in 1992 he was shot whilst attending a rally in Tiraspol. He himself had been the leader of a pacifist group which had been a secret organisation until 1992. The Appellant was about 14 years old at the time. He went into detail, quite unnecessary to repeat here, about the history of those who had opposed fighting and about his father's involvement in helping soldiers deserting from the conflict in Nagorno Karabakh. He referred to the civil war in Moldova and the issues that remain unresolved after twelve years. These, he said, often lead to human rights abuses by the authorities. The Appellant then elaborated upon his uncle's position and how he was assassinated in 1994 by a sniper "probably with the connivance of the authorities." 15. The Appellant mentions his brother, [ ], two years older than the Appellant, who he said was not mentioned in his original statement. That statement was incorrect in showing that he had no brothers or sisters. His brother was called up in 1995 and was never seen again much to his mother's considerable distress. Exhaustive enquiries yielded nothing. Many conscripts from Moldova were sent to Chechnya. 16 The Appellant said that by the time he was 16 or 17 he was attending pacifist rallies and political meetings supporting the cause of independence and autonomy for Moldova. He said his father and uncle had both died for their beliefs and his mother was anxious that he should stay clear of political action. She thought that the Appellant's brother's disappearance was engineered by the authorities although there is no direct evidence of this. Contrary to her instructions, the Appellant did get involved participating in meetings of the pacifist organisation and obtaining his membership card on his 18 th birthday. This, he says, he exhibits to the appeal bundle and a photocopy of a card in four languages, appears there. The title of the organisation is "
Pacifism Without Borders" and is stated as being issued on 21 January 1996. 17 Perhaps most significantly, the Appellant says that he said that he received his first army call-up papers in autumn of 1996. He was determined to stick to his principles and refuse to serve. His mother was against his stand; she did not know where it would all end. She wanted the Appellant to study at the university but unless he had a military identification document showing that he had done military service he could not obtain an identification card and thus could not get into university. 18 At the beginning of 1997 the number of rallies was fewer but the Appellant still attended meetings organised by pacifists. The Appellant continued to get call-up papers twice a year but did not respond. Everyone knew that if he went to the military office they would pay no attention to his pacifist views and if he asked to do alternative military service he would have to pay a huge bribe to even have them consider it. The Appellant said that he had never heard of anyone who had managed to do alternative service simply on the grounds of conscience. In other words everyone who did had to pay a large sum by way of a bribe to the recruiting officer. 19 At the time the Appellant was living away from home moving from place to place so the authorities could not catch up with him. His mother would tell him to stay away when he telephoned because the military or the police or sometimes both together frequently came to look for him. He then referred to the summonses which showed that he had not complied with his call-up and the prosecutor's summons showed that he had committed an offence. If he had answered the prosecutor's summons he would end up in prison on remand and he feared what would happen to him if he were to return to Moldova. It would be unlikely he would survive prison as conditions are notoriously bad. The judges are very corrupt so even if he were to plead not guilty because of his conscience he would not be successful in defending his position unless he bribed the judge as well. There is no real right to alternative service on the grounds of personal convictions and any such right is purely illusory." (Our emphasis).[3]At the outset of the hearing Mr Blundell raised a preliminary matter. He was mindful that the Vice President, Mr S L Batiste had granted permission to appeal in the light of the report of Dr Robert Chenciner. The Vice President's grant of permission was dated 15 April 2004 and therefore predated the promulgation of the decision of the Tribunal (20 July 2004) in CA [2004] EWCA Civ 1165 . Further Dr Chenciner's report post dated the hearing before the Adjudicator and the promulgation of his decision.[4]We observed that in CA , it was held that any Adjudicator's determination promulgated after 9 June 2003 may be appealed to the Tribunal only pursuant to Section 101(1) of the Nationality Immigration and Asylum Act 2002 on a point of law.[5]Section 101(1) states: "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. The Tribunal's functions plainly confined to appeals on law only.

Lord Justice Laws who gave the leading judgment observed:

"An appeal cannot be allowed unless the IAT distinctly hold that the Adjudicator has perpetrated a mistake of law. No doubt it must be a material error of law…once a material error of law is shown, I for my part would accept that the IAT must then decide what, if any relief to grant in the light of the facts arising at the time it is considering the case…"
[7]Laws LJ later in his judgment continued as follows: "I add this. It may be perfectly possible to conclude that the Adjudicator was wrong on the merits. Such a conclusion might have justified overturning his decision under the earlier wider Appellate jurisdiction. But the jurisdiction under Section 101 forbids in effect, the IAT deciding the merits itself unless it first concludes that the Adjudicator's decision cannot stand because it is marred by an error of law".[8]Mr Lewis referred us to Section 102(2) namely: "In reaching their decision on an appeal under Section 101, the Tribunal may consider evidence about any matter which they think relevant to the Adjudicator's decision, including evidence which concerns a matter arising after the Adjudicator's decision".[9]On that basis, Mr Lewis argued the Tribunal were entitled to consider the report.[10]We did not share his view and pointed out that upon our interpretation of the judgment, it was apparent that the application of Section 102(2) only applied in circumstances where the Tribunal indeed had first concluded that the Adjudicator's decision was marred by an error of law.[11]Mr Blundell most fairly clarified that he had been given a copy of Dr Chenciner's report and had taken the opportunity to consider it. Notwithstanding his reservations he did not in principle object to its introduction. We therefore gave permission for Dr Chenciner's report to be tendered in evidence.[12]However in so doing, we made it clear to the parties that in deciding to hear Mr Lewis' submissions in relation to Dr Chenciner's report, it was not to be taken that we had necessarily decided that there was a material error of law by the Adjudicator. It was simply the case that we were mindful of Mr Lewis' wish to raise submissions to us to demonstrate that the Adjudicator had failed to appreciate that the summons to the prosecutor's office (to which the Adjudicator had made reference at paragraph 19 of his determination) may have had materially different consequences to the general call-up papers.[13]It had occurred to us that the summons to the prosecutor's office showed the start of a criminal process and that the Appellant was no longer simply a draft evader but an absconder for criminal investigation.[14]We were further mindful that it was Mr Lewis' preliminary submission that in order for us to determine whether the Adjudicator had made a material error of law the report of Dr Chenciner, in his view would reinforce Mr Lewis' submissions that the Adjudicator did indeed err.[15]The Tribunal, having considered all of the arguments and material before us find that the Adjudicator did appreciate that these documents were profoundly different in character but nevertheless concluded on the evidence before him that the Appellant was not at risk.[16]The Adjudicator did not have clear and persuasive evidence about the importance of the summons to the prosecutor's office.[17]We repeat the observation that Dr Chenciner's report was not before the Adjudicator.[18]Ground 9 seeks to support its introduction now, on the basis of Section 102(2) of the 2002 Act but we reject that submission for the reasons above stated.[19]Ground 9 fails to accept that the report could have been commissioned at an earlier stage but submits inter alia that "such evidence should be admitted in the wider interests of justice."[20]In that regard Mr Blundell rightly submitted that in CA the issue was that of perversity whereas in E and R the issue related to further material showing that there had been an error.[21]As we made clear to the parties, a failure to anticipate further evidence could never be an error of law.[22]It seemed to us, that the starting point was whether there was a material error of law in terms of whether the Adjudicator was not entitled to reach the decision that he did. Was there any evidence which would have led the Adjudicator to a different conclusion?[23]As is apparent from his determination, there was no such evidence.[24]As the Adjudicator rightly observed at paragraph 40 of his determination:
"I can only determine this appeal on the basis of the evidence before me. I note what the Appellant says about the situation in Moldova but I do not find that this is supported by the objective evidence."
[25]Later at paragraph 43 of his determination, described by Mr Lewis as the "key determining paragraph", the Adjudicator continued: "Therefore whilst I accept that the Appellant will have to answer to his call-up and to the summons of failing to do so in the past , there is no evidence that a result of that might not be that he simply has to undertake alternative service. There is no indication in any of the objective evidence to any punishment that the Appellant may receive failing to do so thus far and the Home Office Country Assessment's comments upon draft evasion generally indicates the authorities are lax in pursuing it". (Our emphasis).[26]It is abundantly clear to us therefore, that the Adjudicator was entirely mindful of the distinction to be drawn from the summons to the prosecutor's office and concluded on the evidence before him or indeed lack of it, that there was nothing to suggest that "the result of that might not be that he simply has to undertake alternative service".[27]We are satisfied the Adjudicator's approach does not suggest as Mr Lewis has contended, that the Adjudicator erred in failing to appreciate that the Appellant had been summonsed. When one reads page 13 of the determination as a whole it is clear that the Adjudicator did not fail to appreciate that the summons existed.[28]Indeed earlier at paragraph 38 the Adjudicator had noted that: "Although the call-up documents, both the military summons and the summons by the Ministry of Interior , appeared to be poor quality documents I am prepared to accept that these are what they purport to be and that the Appellant remains liable for military service and may well be the subject of some attention by the authorities for not performing it ". (Our emphasis).[29]Thereafter at paragraph 43 it is apparent that the Adjudicator accepted that the Appellant would have to answer to the call-up and to the summons for failing to do so in the past. However as Mr Blundell rightly submitted, the Adjudicator had considered these two issues and had answered them by reference to a lack of evidence. There were indeed at least five references made by the Adjudicator within his determination that made it clear this was indeed his reasoning.[30]At paragraph 39, the Adjudicator referred to an Adjudicator's determination placed before him in Potramba that arose out of a hearing in November 2000 some three years previously. The Adjudicator continued: "Before the Adjudicator in that case was documentation from War Resisters International. There is no such documentation before me ". (Our emphasis).[31]Later at paragraph 39 the Adjudicator continued: "There are two points to mention. First the Adjudicator based his decision on evidence not before me, and secondly it was an asylum appeal and the Adjudicator accepted the Appellant's political beliefs".[32]It was in that context, that the Adjudicator began the following paragraph 40 by stating "I can only determine this appeal on the basis of the evidence before me".[33]Whilst at paragraph 41 of his determination it is apparent to us that the Adjudicator accepted that prison conditions in Moldova constituted inhuman and degrading treatment contrary to Article 3 of the ECHR, he was not satisfied that there was any evidence to suggest that anything further would happen to the Appellant to suggest punishment that he would be incarcerated. Indeed at paragraph 43 the Adjudicator concluded: "There is no indication in any of the objective evidence to any punishment the Appellant may receive failing to do so thus far and the Home Office Country Assessment's comments upon draft evasion generally indicates the authorities are lax in pursuing it".[34]The Adjudicator continued at paragraph 4 "For these reasons, I find the Appellant has not satisfied me that he would be compelled to do military service and would suffer imprisonment if he failed to do so or because he has failed to do so in the past".[35]Notably and rightly the Adjudicator concluded at paragraph 44 by stating: "The burden is on him to do that and he has not discharged it. As a consequence I find that he is not at risk of treatment prohibited by Article 3".[36]We now turn to the report of Dr Robert Chenciner.[37]Dr Chenciner raises matters within his report that do concern us but as he clearly indicates he has been heavily reliant on a source that he asks us not to name and whose objectivity we cannot test. Also, he does not explain to our satisfaction why it is appropriate to rely on his knowledge of Russian criminal law rather than obtain a translation of the Moldovan code, to which he makes reference.[38]We are not suggesting that Dr Chenciner's report was prepared in bad faith or that he should never be relied upon as an expert, but we are not able to accept that his report on Moldova is in any way helpful in the circumstances.[39]Although it is self evident, for the above reasons that this is not a determination we consider to be suitable for country guidance we take this opportunity to make a general observation.[40]When parties realise that the Tribunal may be considering giving country guidance, they should think very carefully about applying to call oral evidence as it will be the kind of case where the Tribunal may be assisted by hearing oral evidence properly tested by cross-examination.[41]However in the case of Dr Chenciner's report before us, there were aspects of it which caused us particular concern that in an appropriate situation he may have been able to resolve had he been called to give oral evidence.[42]In this regard we found Mr Blundell's observations persuasive. His specific criticisms of the report comprised: Lack of focus. Reliance on outdated material. An assumption that Russian laws were the same as those in Moldova. The reliance on a source without sufficient detail about the objectivity of that source. The very slight detail about that source in comparison with the details given by Dr Chenciner of his CV.[43]It suffices for the purposes of this determination, if we exemplify our concerns as to the reliability of this report by referring to the second paragraph at page 5 in which Dr Chenciner states: "The Moldovan criminal and procedural codes are available from the Institut de Reforme Penale (IRP) but un-translated from Moldovan, so it is valid to briefly examine the parallel laws in Russia about alternative military service and the penalties for desertion, which are likely to be similar in form, content and application ". (Our underlining and emphasis).[44]As Mr Blundell rightly observed, the report was available and therefore it begged the question as to why Dr Chenciner did not seek to have the IRP report translated. We would agree with Mr Blundell that Dr Chenciner's failure to do so raised questions about his methodology.[45]Subsequently at page 6 of his report, Dr Chenciner continued as follows: "Accordingly in Appendix 5, there is a detailed description of the fake Russian system of alternative service that is parallel to the system in Moldova… ".[46]This clear contradiction only serves to demonstrate further the flawed methodology in Dr Chenciner's report, when he had in his possession an un-translated Moldovan report. It was therefore accessible to him for translation but instead he sought to suggest by reference to the Russian criminal code that it represented a parallel system to that in existence in Moldova.[47]Mr Lewis made reference to the Adjudicator's observations and his consideration of the CIPU Country Assessment of October 2003 and repeated in the subsequent April 2004 report at paragraph 5.47 that included reference to the fact that the pursuance by the Moldovan authorities of draft evaders was not considered to be a priority.[48]Mr Lewis submitted that laxity did not mean that no one was pursued. Accordingly the reference in the CIPU report did not safely found the submission to the effect that the issue of a summons to an investigator's office showed a general laxity so that there would be no punishment. He submitted it would appear far more likely that the passage averted to the many who did not respond to call-up but who were not subsequently summoned. It was not a priority to pursue them.[49]However, the Appellant was in Mr Lewis's submission, clearly someone who, for whatever reason, the authorities had decided to pursue so that the general laxity did not apply in the Appellant's case.[50]It was however noteworthy that subsequently Mr Lewis in response to Mr Blundell's submissions accepted that there was no evidence that being called to the Moldovan investigator's office was unusual and he agreed with us that the suggestion the Appellant was someone specifically targeted "for whatever reason" was just speculation. He agreed that it could not be said that this Appellant was being treated specially in any way.[51]Indeed Mr Lewis agreed that there was no evidence to suggest that all or many of those who failed to answer their call-up would not as a matter of course be subsequently summonsed to the prosecutor's office.[52]In the view of the Tribunal, the Adjudicator evaluated this appeal in a very careful and comprehensive way and reached findings that were properly open to him on the evidence. The Adjudicator's determination discloses no material error of law.[53]It follows that we find there to be no proper basis upon which the Tribunal should reverse or set aside those findings.[54]The appeal is therefore dismissed. N H GOLDSTEIN VICE PRESIDENT APPROVED FOR ELECTRONIC DISTRIBUTION