Otshudi v Secretary Of State For Home Department

J U D G M E N T

1. LORD JUSTICE SEDLEY: This appeal comes before the court by permission of Kay LJ. He was much influenced by the fact that, some ten months after an adjudicator had dismissed Mr Otshudi's appeal, another adjudicator, on almost identical evidence, had allowed his brother’s appeal. For reasons to which I shall shortly come, this cannot furnish a ground of legal challenge, but there are further grounds, to which I shall also come, on which the decision of the Immigration Appeal Tribunal upholding the present adjudicator's decision is said to be legally flawed.

2. The present claim for asylum, and for non-return on human rights grounds, arises out of a single horrific episode in August 2002 in which the Otshudi family were attacked by troops of the Democratic Republic of the Congo (DRC) in their home town, Mbuji-Mayi. The whole family was beaten. The mother was raped and killed. One of the three sisters was raped. So was the appellant. The father was tortured, then abducted, and has not been seen again. The soldiers returned the same day and burnt the house down. The six children fled. The three brothers made their way to this country. They do not know what has become of their sisters.

3. The adjudicator, Mrs C E S Andrew, found this account credible. The next question, because of the asylum claim, was why the attack had happened. It was established to the satisfaction of the adjudicator that the father, who by profession was a diamond concessionaire, was a low-level supporter, but no more, of the opposition UDPS party. She rejected, on grounds which have not been and could not be attacked in this appeal, the documentary evidence by which it was sought to prove that he was a co-founder or financial supporter, or both, of the UDPS. But at paragraph 26 the adjudicator concluded:

"Was this attack to do with the appellant's Father's membership of the UDPS. I am not satisfied to the appropriate low standard the Appellant has shown me that it was. The Appellant had adduced no evidence to show me this is the case. All he has said is that soldiers burst into the house. His description in his response to question 22 in his SEF interview record does not refer to the attack being because his Father was a member of the UDPS. Indeed, in the Appellant's response to earlier questions he had already said his Father was not a member."

4. The adjudicator next considered the in-country evidence. It showed unlawful violence on the part of the security forces in, among other places, the appellant's home town during 2001. She found no evidence, however, that the UDPS was a particular target, noting generally that "Government harassment of various political parties decreased in 2001". She concluded:

"I do not consider the appellant has shown me to the necessary low standard the attack was for any political reasons. I do not know why it should have happened but in any event it is not for me to speculate."

She accordingly dismissed the asylum appeal because she was unable to find that the persecution that had occurred was for a Convention reason, namely the father’s political opinions.

5. The adjudicator then went on to consider whether the human rights claim succeeded under Art 3. She said this:

"35 Article 3 provides that no one should be subjected to torture or to inhuman or degrading treatment or punishment. The most I have been able to accept is the Appellant's home was attacked and his family were persecuted on one occasion. That was an isolated incident. I have no sufficient evidence to show me the appellant was the target. There is no evidence to show me the Appellant would be at risk if he were returned to DRC now."

6. If these conclusions of the adjudicator were legally and factually tenable, there was no ground on which the IAT could interfere with them, whether or not they would have come to the same conclusions themselves. The single member, Mr Rapinet, gave leave to appeal, giving this as his reason:

"I am concerned that the Adjudicator's findings as to the status of the father may be questionable bearing in mind not only what is stated in the claimant's witness statement but also the other evidence before her."

7. The adjudicator's decision was given in April 2003, and leave to appeal was given a month later. The appellant's brother's appeal to a different adjudicator was still pending in February 2004 when the IAT decided the appeal in the present case.

8. In a brief set of reasons, the tribunal (Mr T Davey, Mr C Thursby and Mr M G Taylor) dismissed the appeal. They rejected the criticism of the adjudicator for having refused the asylum claim simply for want of proof of the motive for the attack on the family, instead of having decided for herself what the probable motive was. They pointed out that, once a political motive had been rejected as wholly improbable, extortion or theft were among the possible explanations. They did not deal directly with the other main criticism: that, whatever the motive, the appellant was now at serious risk if he were to be returned - the Art 3 claim. They lastly upheld as sustainable the adjudicator's rejection of the documents purporting to show the father’s connection with the UDPS.

9. It has to be said that the IAT’s reasons are not of the same quality or cogency as the adjudicator's. The issue under Art 3 was not coextensive with the asylum issue. Where the asylum claim required some proof of the attackers' motive, a risk of inhuman treatment does not depend on the aggressors' motive. What it depends on is objective risk, and this was found by the adjudicator not to be shown. Thus the appellant had the double misfortune of being unable to show a political motive for an attack of which he might very well have been held to have a well-founded fear of repetition, but also of being unable to show a sufficiently clear objective risk that there would be such a repetition.

The brother's case

10. Eleven days after the IAT dismissed Mr Otshudi's appeal, his brother's asylum and human rights claims, founded on the same evidence, were allowed by a different adjudicator, Mr L D Sacks. We are told today that the Home Secretary has not sought to appeal the decision. The fact of this discrepant decision was drawn to the attention of the IAT when permission to appeal to this court was sought, but the IAT made no reference to it in their refusal. Although this is recounted in the appellant's skeleton argument, and although the single Lord Justice who gave permission to appeal was concerned by it, no submission of law is now founded on the outcome of the brother's claim, and rightly so.

11. This is not the class of case which involves what Laws LJ has called a "factual precedent" - for example a finding about the political situation in a given country at a given moment. It is an illustration, if an alarming one, of the fact that two conscientious decision-makers can come to opposite or divergent conclusions on the same evidence. But it is no more material to the legal soundness of the present adjudicator's decision than hers would be to the soundness of the second adjudicator's decision. I will nevertheless say something before I conclude this judgment about the policy and humanitarian implications of these particular discrepant outcomes.

This appeal

12. Mr Bedford opened his argument for the appellant before us with three propositions which I had not discerned anywhere in his appellant's notice or skeleton argument, but which are in effect the legal springboard for his specific critique of the decisions below. But for this, Ms Anderson would have been justified in drawing our attention, as she did, to Rules 17(3) and 18(2) which seek to tie an appellant to the detail set out in the grounds of appeal to the IAT. As it is, I do not think that either of the cases relied on by Mr Bedford enhances his announced case, and I will deal with them briefly. His third opening point, which relates to the adequacy of reasons, is in reality what the substance of his argument is about.

13. The recent decision of this court in Subesh [2004] EWCA Civ 56 can be distilled into what is said by Laws LJ in paragraph 44:

" ..... The true distinction is between the case where the appeal court might prefer a different view (perhaps on marginal grounds) and one where it concludes that the process of reasoning, and the application of the relevant law, require it to adopt a different view. The burden which an appellant assumes is to show that the case falls within this latter category."

14. Mr Bedford seeks to deduce from what is said in the following paragraph of the judgment that a two-stage test is wrong in principle. What paragraph 45 in fact says is that the test does not always or necessarily fall into the two stages envisaged by Hale LJ (as she then was) in Indrakumar [2003] EWCA Civ 1677 (cited in paragraph 37 of Subesh ). It is emphatically not a ruling-out of the two-stage test for deciding whether an adjudicator has erred appealably on fact. But in any event, this case is not about whether the IAT was entitled to interfere with the adjudicator's fact findings: the IAT upheld these in their entirety, and the real question is going to be whether they ought in truth to have interfered. That requires us to focus on the adjudicator's reasoning, not the IAT's.

15. Mr Bedford's other initial point, if I understood it correctly, was that the decision of this court in Karanakaran (25 January 2000) requires a holistic approach to the evidence which the adjudicator failed to take. I will come to how the adjudicator approached her task, but Karanakaran establishes for these purposes no more than was said by Simon Brown LJ (as he then was) in Ravichandran [1996] Imm AR 97, cited in paragraph 19 of my judgment in Karanakaran .

16. What Mr Bedford submits to us, as he submitted to the IAT, is that the adjudicator’s rejection of the evidence of the father's political involvement was inadequately reasoned. Rather than simply conclude that she was not satisfied, even to the low standard required, that politics played any part in the motivation of the attack, it is submitted that she should have marshalled any other possible motives or reasons disclosed by the evidence and have decided which was the most probable. Had she done this, she would have noted that the in-country evidence did not suggest that the security forces engaged in wanton crimes against the population, but did record that they had killed people suspected of threatening the authorities' diamond interests, and that they had been known to harass supporters of the UDPS. This was quite enough, Mr Bedford submits, to give the persecution a political character. Add to this, he says, the adjudicator's failure to make any finding on the evidence that the father had donated money to the UDPS or - more exiguously - about the contents of the suitcase which he had managed to pass to his sons before he was abducted (and which the appellant said had contained UDPS plans), and the decision, Mr Bedford submits, is flawed to a point which requires a rehearing.

17. The respondent’s skeleton argument, if I may say so, gets off to a bad start by submitting that whether the IAT found or did not find an error of law was a matter for their discretion. Plainly, as Ms Anderson now recognises, it was not: it was a matter for their judgment, as it now is for ours. For the rest Ms Anderson submits that what are being asked for here are reasons for reasons and "speculative ruminations". I do not think that this is a fair characterisation of the appeal. What is said on the appellant’s behalf is that the adjudicator's task was not simply to sit back and see if Mr Otshudi could prove either of his claims, but to look at the evidence in the round and to say whether the reason for this savage attack on the appellant's family was more likely to have been politically motivated than merely random or criminal. It is also said that the IAT completely overlooked the risks to the appellant, should he be returned, which were unrelated to his being a failed asylum-seeker.

18. As to the first of these questions, the finding that the father was a low-level supporter of the UDPS made it unnecessary to make a specific finding as to whether he was also a donor. There was no way in which the adjudicator could do more than guess what was in the suitcase he entrusted to his sons. The real issue is whether the adjudicator was entitled to rest on her finding that there was not even modest proof of a political motive, or whether, given that there was at least some evidence to support such a motive, her task was to weigh it against such other motives as were also possible - here, in effect, criminality.

19. The IAT took the view that it was not necessary for an adjudicator "to provide an alternative explanation so long as the reasons for rejecting the claim are soundly and properly based". For my part I would not regard these two things as always antithetical. There may well be cases in which, in the absence of an alternative explanation, there is no proper or sound basis for rejecting the case advanced by an applicant. But I am unable to say that this is such a case. The reasons for this savage attack were not clear: they could only be inferred from what was known, and what was known did not suggest, at least to this adjudicator, that the father’s politics had been the reason for it. I do not accept that she was required in these circumstances to go further. The reference in Brooke LJ’s judgment in Karanakaran (p.22) to the elimination only of elements about which there is "no real doubt" is not, as it seems to me, directed to this stage of an adjudicator's reasoning but to the earlier stage at which factual material is being assembled and evaluated. Here the adjudicator is reaching the critical question of what is to be made of it. Had there emerged any real possibility, in her judgment, of a political motive for the attack, I would accept that she should have gone on to weigh that against the other possible explanations. But she did not reach this point, and for reasons which are in my view sufficiently explained by her.

20. I have not overlooked Mr Bedford’s further submission that the in-country material also pointed towards a political motive. The adjudicator referred to this material. What she made of it is not what Mr Bedford asks us to make of it, nor necessarily what I would have made of it, nor what the second adjudicator made of it, but it has been evaluated in her decision and found not to add appreciably to the case for a political motive for the attack.

21. Once this point was reached, the adverse decision on the Art. 3 claim almost inexorably followed. No issue arose here about political motivation, but the finding that the appellant himself had not been a target and that the incident was an isolated one meant that objectively the adjudicator rejected any real likelihood of a repetition should the appellant be returned to his home town. Here too, others might not have been so sanguine on the evidence, but that is not the test.

22. As I have said, Mr Bedford is right to point out that the IAT has not dealt in terms with this limb of the claim. But this court's focus, like the IAT's, this being a case in which they have not replaced any of the adjudicator's findings with their own, is on the adjudicator's reasoning. In my judgment that reasoning cannot be faulted on this score: the adjudicator considered whether the occurrence of the attack itself gave rise to a real risk of its repetition and concluded on tenable grounds that it did not. Although the Amnesty report of wanton killings by troops in the area during 2001 might perhaps have persuaded her otherwise, she took it explicitly into account; and it was not such as to compel her to reach a different conclusion.

Postscript

23. The discrepancy between the two decisions, while giving rise to no legal challenge, must be a matter of concern. If the second adjudicator is right, this appellant’s life too is at risk. If he is wrong, of course, neither brother may be at risk; but asylum law - for example by demanding something less than proof positive - deliberately errs on the side of caution. I venture to hope that the Home Office will look again at this case in the light of the second adjudicator's decision and consider whether, despite the court's inability to intervene, it would be humane, at least for the present, not to remove this appellant.

24. We are told that normally two linked cases like these would be heard together, but only if one party or both applied for it. It is most unfortunate that nobody appears to have identified these two cases as suitable for joinder.

Conclusion

25. Notwithstanding these considerations, I for my part would dismiss this appeal.

26. LORD JUSTICE CHADWICK: I agree that the appeal must be dismissed for the reasons which my Lord has given and I, too, associate myself with the observations he has just made.

27. THE VICE-CHANCELLOR: I agree with both judgments and I have nothing to add.

Order: Appeal dismissed. Permission to appeal refused