I v Secretary of State for the Home Department

LORD JUSTICE RICHARDS: The applicant is a citizen of Pakistan who sought asylum in the United Kingdom in 2004. The Secretary of State refused his claim and an appeal to an adjudicator was dismissed. The IAT granted permission to appeal, limited to challenging the adjudicator’s adverse credibility findings. After the change in statutory regime in April 2005, the matter came before the AIT as a reconsideration hearing. The AIT found no material error of law in the adjudicator’s decision and therefore held that the adjudicator’s decision should stand.

The applicant now seeks permission to appeal against the AIT’s decision on the reconsideration. Permission was refused by the AIT itself and by Buxton LJ on the papers. The renewed application has been presented before me on the applicant’s behalf by Mr Kahn.

The basis of the applicant’s claim was fear of the government and in particular of the Prime Minister’s brother. He had been a member of the Pakistan Muslim League and had been arrested and detained in 2000 and 2003. An FIR had been issued against him in April 2004 because he had organised a demonstration without permission from the authorities. In June 2004 when going to a meeting of the Pakistan Muslim League, he had been fired upon by the Prime Minister’s brother and his men. In that incident the President of the Pakistan Muslim League (North), Mr Binyameen, had been killed. The applicant himself had managed to escape and had gone into hiding. The authorities were looking for him. That was the nature of the claim advanced.

As the AIT put it, the adjudicator heard oral evidence from the applicant but roundly disbelieved him. She gave seven reasons for rejecting his credibility. The AIT said that in the grounds of appeal there were attacks on three aspects of the adjudicator’s alleged reasoning. In fact, two of the grounds were misconceived. In relation to the third, the adjudicator was perfectly entitled to draw the inference she did. The grounds of appeal did not attack the many other reasons given by the adjudicator for rejecting credibility. Her finding as to credibility was not perverse and was not one with which the AIT could interfere.

At the centre of the challenge to the AIT’s decision is a complaint about one of the reasons given by the adjudicator in paragraph 64 of her decision, where she says:

What is said by Mr Kahn is that the Secretary of State’s own version about Mr Binyameen being killed on his way home was not supported by any evidence, albeit that the Secretary of State had said in his decision letter that it was known from news reports of the death that he was on the way from his office when he was shot. By contrast, Mr Kahn submits the applicant’s version was supported by a newspaper report, which was placed before the adjudicator and to which a certified translation was attached, a translation which was on the immediately preceding page of the bundle and which the adjudicator had overlooked. It is submitted that to make a finding unsupported by evidence is an error of law. In addition there was an attempt before the AIT, which is repeated before this court, to adduce fresh evidence on the issue in the form of a newspaper report which had not been placed before the adjudicator, and which it is said supports the applicant’s case.

To the extent that the argument was raised before the AIT it dealt with it in this way, in paragraphs 35 to 37 of its decision:

I should make clear that the submissions made to the AIT on the applicant’s behalf were made by Mr Kahn. He appeared before the AIT as before me. He did not, however, represent the applicant before the adjudicator.

For my part, I see no arguable error of law in the approach that the AIT took in those paragraphs, and I do not consider that the argument that is now advanced by way of a challenge to the AIT’s decision has any prospect of success in this court. First, as the AIT pointed out, this matter was not even raised in the applicant’s grounds of appeal to the AIT. It is true that the judge who gave permission to appeal to the AIT seems to have thought the point to be arguable, though he referred erroneously to paragraph 74 rather than paragraph 64 of the adjudicator’s decision. But there was no amendment to the grounds, and this was far from being an obvious point in the Robinson sense, and I doubt whether it could properly be said to have been before the tribunal by reason of a reference to it when permission to appeal was granted. My doubts seem to me to be in line with what was said by Sedley LJ in Krasniqi [ 2006] EWCA Civ 391, in particular at paragraphs 17 to 20.

In any event, and of particular importance for present purposes, the specific point that in referring to an absence of any translation of the newspaper article produced to her, the adjudicator had overlooked an English translation on the immediately preceding page of the bundle, and had made the most basic of errors, was plainly not raised in the grounds of appeal, nor can any reference to that argument be discerned from the reasons given by the AIT in its decision on the reconsideration. In the absence of any clear indication that this matter was an issue before the AIT, it does not seem to me that it is something that could be properly relied on now as a challenge on a point of law to the AIT’s decision. It is clear from the AIT’s decision that the main thrust of the argument before it was the attempt to introduce fresh evidence in the form of newspaper report, or further newspaper report, dating to the time of the assassination. In my judgment, and in this respect I reflect observations made by Buxton LJ when he refused permission on the papers, the AIT was fully justified in declining to admit that evidence for the reasons it gave, and for the same reasons I can see no prospect of the fresh evidence being admitted in this court.

One is left with questions of whether it was reasonably open to the adjudicator to deal with the matter in the way she did, in circumstances where the Secretary of State had taken the point against the applicant in his decision letter and the grounds of appeal to the adjudicator from the Secretary of State simply asserted on this point that the applicant maintained that his claim was based on fact. In my judgment, it was reasonably open to the adjudicator to deal with the matter as she did. It cannot be said that her finding was demonstrably unfounded or erroneous; see Krasniqi , paragraph 17. In the terms used by Sedley LJ in that paragraph, this is not a case where a decision about fact has acquired a legal dimension.

Mr Kahn has also taken issue with paragraph 65 of the adjudicator’s decision, where she says that she shares the Secretary of State’s concern that it was not credible that the Prime Minister’s brother would have been responsible for the murder of Binyameen in the street. A person in his position would not have carried out a murder himself in broad daylight. This too did not feature in the grounds of appeal to the AIT. The AIT touched upon it in paragraph 44 of its decision, saying that the adjudicator was perfectly entitled to draw the inference she did and that there was no objective evidence to the effect that such an occurrence was likely to happen. I agree and do not think that the AIT could be said to have fallen into error on the point.

A further complaint made by Mr Kahn concerns the finding in paragraph 67 of the adjudicator’s decision that the appellant had been inconsistent as to whether he had a passport or not, which was viewed by the adjudicator as a serious discrepancy. Again there was nothing about that in the grounds of appeal to the AIT. It does not seem to have been canvassed before the AIT, which did not refer to it in its decision. I am wholly unpersuaded that it is open to the applicant to raise the point now or indeed that there is any substance to the criticism made.

The adjudicator relied not just on these matters but also on other reasons for reaching the adverse credibility finding she did. Looking at the matter in the round, I see no realistic basis upon which her adverse credibility finding could be challenged. The renewed application is refused.