Traore, R (on the application of) v Immigration Appeal Tribunal

J U D G M E N T

1. MR JUSTICE MCCOMBE: In this case the claimant, Mr Abdul Kadir Traore, applies for judicial review of the decision of the Immigration Appeal Tribunal, dated 10th February 2003, refusing him leave to appeal against the determination of an Adjudicator promulgated on 30th December 2002. The Adjudicator had dismissed the claimant's appeal under section 69(5) of the Immigration and Asylum Act 1999 against the decision of the Secretary of State, itself taken on 22nd May 2002, to refuse asylum and to set removal directions.

2. The claimant is a national of the Republic of Guinea. He has maintained throughout, and told the Secretary of State and the Adjudicator, that he had been arrested, together with his entire family, apart from one brother, by Guinean soldiers on 10th February 2001 after some severe fighting in and around the area of his home town. The authorities at that time were attempting to deal with insurgents operating from a neighbouring state. When his family were ultimately released from detention, he was detained because soldiers had wrongly identified him with his absent brother who they claimed had deserted the Guinean army and joined rebel forces. The claimant has maintained, throughout, that his identity was mistaken because of his close physical resemblance to his brother.

3. Between the 13th and 21st February 2001, the claimant was detained in insanitary and what have been described as dehumanising conditions, initially alone and then with others. There was no sanitation or running water, food was minimal and he was tortured. The method of torture included partial drowning, beating of his physical extremities with wooden implements and by being forced to move around the gravel of the detention area on his knees. His protestations as to his identity were not only ignored, but met by further ill-treatment.

4. On 21st February 2001 he and the others were informed, or took the conclusion, that they were to be taken away and executed without a trial. No charge had been preferred against the claimant and he had not been taken before any court. They were put into transport and taken into a remote area. In a moment of distraction of their guards, the claimant and others made an escape attempt. The claimant, and I think others, succeeded. At least one was shot. The claimant made his way across the border into the Côte D'Ivoire. There, he found work and subsistence but he worked without monetary reward.

5. His employer, he said, facilitated his journey in March or April 2002, initially to France and then to this country. On 2nd April 2002 he claimed asylum in this country and the claim was rejected by the Secretary of State in the decision to which I have referred. On appeal to the Adjudicator, the learned Adjudicator essentially accepted his account of his arrest, treatment and escape in and from Guinea to the Côte D'Ivoire. She did not accept, however, his account of his further journey, initially to France and then to the United Kingdom. She found that part of the story lacked credibility.

6. Thus, she found that the claimant had been subjected to a substantial degree of ill-treatment of a severe character. However, it was her ultimate conclusion that the subsisting risk of persecution, if returned to Guinea, was not such as to involve any relevant breach by this country of its obligations under the Refugee Convention, nor was there any relevant breach of the country's obligations under the European Convention on Human Rights.

7. The crux of the Adjudication appears in paragraphs 22 to 24 of the Adjudicator's decision, to be found on page 25 of my bundle, and I think I can take the crux of the decision without ignoring the reasoning process appearing in the earlier paragraphs by quoting paragraph 24, which I do. The learned Adjudicator said this:

"As to his fear of arrest on his return to Guinea, I take the view that this is not merited. There is no reason to believe that the Guinean authorities would be aware of his arrest, or, if they were, that they would not accept that he had been arrested as a result of mistaken identity. Although the judiciary is routinely subject to undue influence in politically sensitive cases, there is nothing in the evidence before me to indicate that the appellant would not be given the opportunity to explain his case."

8. Against that determination, the claimant sought to appeal to the Immigration Appeal Tribunal. The grounds of proposed appeal focused, it is accepted by Mr Jones on the claimant's behalf, upon an erroneous legal point as to the burden of proof. That point, as Mr Jones accepts also, wrongly contended that fell upon the Secretary of State, pursuant to a decision based upon the case of Arif [1999] AIR 271. Rolled up in that argument was the following paragraph of proposed grounds of appeal, appearing in paragraph 3(3) to the following effect:

"The objective evidence that was before the Adjudicator, in any event, was in no way indicative of a change in circumstances in Guinea sufficient to establish that the risk on return was no longer that of a reasonable degree of likelihood/real risk. Indeed, the objective evidence was indicative of A's [that is the claimant's] claim being plausible (as accepted by the Adjudicator). The remarks of General Issa Sesay -- quoted by the Adjudicator at paragraph 23 of her determination -- as certainly not indicative that A would now be able to explain his innocence (when he clearly could not before). Indeed, the US State Department Report under the sub-heading 'Torture and other cruel inhuman or degrading treatment or punishment', is indicative of police brutality that is comparative to the brutality he experienced in February 2001."

9. I have, in that quotation, corrected certain spelling and grammatical errors that appeared. The Tribunal considered those grounds and by the decision which I have mentioned, refused leave to appeal, giving the following reasons which I, again, quote as follows:

"The Adjudicator found that the claimant was, on the whole, a credible witness. She accepted his account of events. On the particular circumstances and in the light of the country information, it was open to her to find that, whilst the claimant was at risk when he left Guinea, he would not be at risk on return. The grounds of appeal seek to misapply Arif. In the circumstances of this case the burden of proof does not shift to the respondent, evidentially or otherwise."

10. On this claim for judicial review, it has been urged, before me, that the conclusions of the Adjudicator were insufficiently reasoned and did not show a logical progress from the findings of credibility, and the resultant findings of fact of torture and mistreatment of this appellant, sufficient to found the Adjudicator's conclusion that this claimant would not be at substantial risk, or risk of persecution, if returned to Guinea.

11. In a careful outline argument in writing, and amplified in oral submission, Mr Jones, on behalf of the claimant, has set out elements of the decision of the Adjudicator which, he submits, militate against a conclusion such as those set out and expressed in paragraphs 23 to 25 of the Adjudicator's decision. He points out that the task for the Immigration Appeal Tribunal, when considering the application for leave, was that set out in Rule 18 of the Immigration and Asylum Appeals Procedure Rules 2000. I quote Rules 6 and 7 of those rules as a reminder of what the test was:

"(6) The Tribunal shall not be required to consider any grounds other than those included in the application.

(7) Leave to appeal should be granted only where:

(a) the Tribunal is satisfied that the appeal would have a real prospect of success; or

(b) there is some other compelling reason why the appeal should be heard."

12. Mr Sharland on behalf of the interested party, the Secretary of State for the Home Department, reminds me that the task of this court, in an application of this sort, is to consider whether the decision of the Tribunal was irrational or, in any other respect, contained discernible errors of law. He submits that that is a very high threshold to cross and he reminds me of the decision of the Court of Appeal in R v Secretary of State ex parte Robinson [1998] QB 929 in which, to quote the headnote, it was decided as follows; and I cite holding (2) set out at page 930 of the report as follows:

" . . . the appellate authorities were neither limited by the arguments actually advanced nor required to engage in a search for new grounds; and that, since they were obliged to ensure that the applicant's removal would not contravene the United Kingdom's obligations under the Convention and Protocol, where there was a readily discernible and obvious point in his favour, which had not been taken on his behalf, they, and the High Court exercising its supervisory jurisdiction by way of judicial review, should nevertheless apply it."

13. Mr Sharland submits that whatever, now, might be the careful analysis advanced by Mr Jones on behalf of the claimant, it cannot be said that, given the grounds that were presented to the Tribunal, there was any error of law or irrationality on its part in dealing with the application for leave to appeal as it did.

14. In my view, it is important to bear in mind what the Tribunal's necessary exercise was to apply the procedural rule set out in Rule 18. At the forefront of that rule is the statement that the Tribunal is not required to consider any grounds other than those included in the application. The obligation to consider whether there is a real prospect of success on the appeal, or some other compelling reason why the appeal should be heard, is to be exercised in that context. It has to be borne in mind that what one has to find, to found an arguable error of law or irrationality, is a discernible or obvious point in favour of the claimant which was not expressed in his grounds but could be seen readily from a reading of the materials before the Tribunal.

15. To my mind, Mr Jones' argument has given rise to a very interesting and well-sustained point as to how the claimant's case could have been advanced before the Tribunal but was not. It does not seem to me, on reflection, that the points made in further elaboration of what he argues was being said in paragraph 3(3) of the grounds before the Tribunal, really does amount to a discernible and obvious point in favour of the claimant which should have made the Tribunal take a different view, nor such as to require this court to intervene in the decision-making process of the Tribunal.

16. In my view, having regard to the Adjudicator's determination and the statutory exercise under the rules which the Tribunal had to exercise, the decision cannot be said to be either irrational or one which discloses an error of law. The Tribunal, to my mind, decided the case on the basis of material that it obviously read and considered and is well equipped to read and consider in the light of its very substantial experience in cases of this sort. It is impossible to see, in those circumstances, how this claim for judicial review can succeed. That is not to say that Mr Jones' argument was not most persuasive and it occasioned my mind to take differing views during the course of the hearing. Unfortunately for him, I am unable to accede to those admirable submissions.

17. MR JONES: My Lord, the claimant is funded by the Legal Services Commission.

18. MR JUSTICE MCCOMBE: You want a public funding assessment? Yes, I so order. Thank you both very much.