Secretary Of State For Home Department v Kawesa,  EWCA Civ 583 (16 March) (Court of Appeal 2001)
Neutral Citation Number:  EWCA Civ 583
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE IMMIGRATION APPEAL TRIBUNAL
Royal Courts of Justice
B e f o r e :
LORD JUSTICE SCHIEMANN
LADY JUSTICE ARDEN
SECRETARY OF STATE FOR THE HOME DEPARTMENT
- v -
(Computer Aided Transcript of the Stenograph Notes of
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MR M SOORJOO (instructed by Luqmani Thompson & Partners, London N22 6BB) appeared on behalf of the Appellant
MR T WARD (instructed by the Treasury Solicitor, London SW1H 9JS) appeared on behalf of the Respondent
HTML VERSION OF JUDGMENT
Crown Copyright ©
Friday, 16th March 2001
LORD JUSTICE SCHIEMANN:Lady Justice Arden will deliver the first judgment.
LADY JUSTICE ARDEN: This is a renewed application for permission to appeal, permission having been refused on paper by Schiemann LJ. The applicant, Mr Patrick Kawesa, came to the United Kingdom from Uganda, via Kenya, seeking asylum in June 1992. In August 1997 the Secretary of State for the Home Department refused his claim for asylum. On 15th April 1999 an appealed was heard by the special adjudicator who allowed his appeal and subsequently, following judicial review proceedings, the Secretary of State appealed to the Immigration Appeal Tribunal and the appeal was ultimately heard on 9th October 2000.
Mr Kawesa gave evidence before the special adjudicator about what had happened to him in Uganda, and the circumstances of his departure. At page 18 of the bundle the following appears in the special adjudicator's determination:
"I found the appellant to be a credible witness. His account is that he is a Ugandan (a member of the Baganda tribe) which is generally seen as being opposed to the government. In 1984 he joined the UFM which later merged with the NRA. He began his service in the army as a Private, later being promoted to Second Lieutenant. He was appointed Administration Officer for his barracks, a position of some influence in relation to men and materials. In 1988, for no reason that was disclosed to him, he was detained, but his release was secured by his Commanding Officer and he returned to the Army, though to a different post. Three years later he was arrested again and held without charge for nine months. He was not told where why he had been detained, but he said in evidence that he believed it was due to his ethnic origin. While in detention his wife had slipped him some money and, through bribery, had arranged for a passport to be issued in his name. She was able to use a photographic negative which she had in the house and she passed the signature slip to him in prison that he could sign it and it could later be sealed into the passport. He bribed his guards to allow him out of the prison to take part in a water fetching detail and, when they allowed him to relieve himself, he slipped away into the bush. They fired shots at him, but did not chase them as they had other prisoners to look after. On a nearby road he picked up a taxi, paid a quick visit to his wife's house, picked up his passport and some belongings and later made his way across the border into Kenya from where he took a flight to the UK."
The special adjudicator also said:
"I am satisfied that the appellant's account of these events is substantially true. On the lower standard of proof I accept that the appellant's detentions were likely to have been due to his ethnicity and to his being seen as a potential opponent of the government and that, if he returned, he would be questioned, identified and subjected to further ill-treatment amounting to persecution."
On appeal the Secretary of State contended that the special adjudicator had made no clear findings as to the reasons for the applicant's detention. The Secretary of State submitted to the Immigration Appeal Tribunal that there was no evidence that the applicant had a well-grounded fear of persecution on ethnic grounds or imputed political opinion. On behalf of Mr Kawesa it was submitted that the special adjudicator had heard the evidence and accordingly his findings should stand.
The tribunal then raised a number of points with Mr Kawesa's representatives. It heard from a Mr Bartram, who drew attention to the grounds which had been put forward by another representative before the tribunal in an earlier hearing which was quashed, and he made the submission, which I have mentioned, that the special adjudicator had had the benefit of hearing the appellant and considering all the documents which were before him and on those findings the special adjudicator had come to the correct conclusion. He also submitted that the findings were not fraud, and that the special adjudicator's findings were not vitiated.
The tribunal then asked Mr Bartram to clear up certain matters which is it said were causing it concern, both in the determination itself and in written submissions made before the special adjudicator on which Mr Bartram had relied. In paragraph 17, it is recorded in the tribunal's determination that the tribunal had sought Mr Bartram's views on the finding of the special adjudicator that the respondent's detentions were likely to have been due to his ethnicity and to his imputed political opinions, in view of the fact that there was no evidence whatever on either of these two points, that the Baganda tribe was by far the largest in Uganda and that there was nothing to indicate that the respondent, as a Muganda, had any quarrel with the government in power.
The response to that was at paragraph 18 of the determination, where it is recorded:
"Mr Bartram submitted that it was not part of the respondent's case that he was being persecuted on account of his being a member of the Baganda tribe, and that even though the Baganda tribe was the largest in Uganda, the question of their seeking separatism did exist and that the Baganda would looked upon with suspicion by the other tribes in the NRA."
- that is the National Army of Uganda.
The tribunal asked Mr Bartram if he could indicate in the documentation which was before the special adjudicator where the propositions were set out. Mr Bartram is then recorded as having gone through the documentation and saying that while he could not trace exactly where these matters were mentioned, he would draw attention to the determination of the tribunal in another case, Nutsugah, relied upon by the Secretary of State, where the question of the appellant's imputed political opinion, even though he was a civil servant, was raised.
At paragraph 21 the tribunal records this:
"He submitted that there were factions within the NRA and that, as the respondent had been a member of the UFM, originally, before the two armies amalgamated, he would be under a certain suspicion."
In addition, the tribunal also raised with Mr Bartram another of a series of points. They put to him a submission as follows:
"There was no reason for the Special Adjudicator to deal with the question of whether Bagandans were persecuted per se, given that such a proposition was never a part of the applicant's case."
And they asked Mr Bartram whether that was the correct position and Mr Bartram submitted that that was the situation.
The tribunal further asked Mr Bartram if he could ascertain from the applicant who was present, and who could speak and understand English why he had decided to change his name from Patrick Kawesa, to Stephen Ssebagala, and why, if he had changed his name, did he change his date of birth, which would not appear to be necessary, and why did he produce a military identification document stating that his height was 6'6", whereas in his passport, he had stated his height as being 5'6", which was more likely to be the truth. The tribunal then record that the appellant himself then gave evidence to the effect that the reason why he had changed his name was because he was fighting during the general insurrection, as a member of the Uganda Freedom Movement, if he were captured, or if his side were to have lost, no repercussions would fall upon his family.
The appellant dealt with the change of name, saying that the change of date of birth had been done in order to assist his change of name. He also submitted that, in so far as there was a discrepancy in his height recorded in the documents, the position was that in Uganda documents were not drawn up accurately.
The tribunal asked him how he had managed to get his passport and had it signed while he was in detention, and he explained, as I have said, that he managed to pass to his wife a slip of paper with his signature on it and that that was placed on his passport. The tribunal then asked why, if that were the case, his signature appeared twice on the passport, which, if his evidence were true, would not appear to be fully explained. The tribunal then record that the applicant was not able to explain this, beyond suggesting that it was a forgery.
The appellant tribunal asked if he had been detained on the first occasion, on account of his being a Muganda, and having political opinions imputed to him, why it was that, after he had been reinstated in the army, he had been promoted, and the applicant said that that was automatic promotion.
Further on in the determination the question of the applicant's escape was then canvassed with Mr Bartram and the question of its plausibility queried. The tribunal record that the applicant then stated in evidence before them that, as he had always maintained, he had bribed the guards, and that was the reason why he had managed to escape. The tribunal suggested that it seemed unusual that if shots were fired by the guards, the pursuit was not continued, and that his managing to escape in those circumstances was not fully plausible. The respondent again stated that he had bribed the guards.
The tribunal then at paragraph 39 record that the respondent was given every opportunity of stating anything which he wished to say and they allowed him to give evidence at large. They then record at paragraph 40 as follows:
"The respondent, then, went into the history of his fighting with the UFM, his joining the NRA, and his having learned of the death of his Muganda colleague, Nsubuga, which finally decided him to escape from his second detention. He outlined the method used in getting his passport, through bribery of the guards and through the agency of his wife, and his fear, that, as he had escaped from custody, he would be treated an a deserter from the army if he returned, and stated that the NRA code of conduct was that the penalty for desertion was death; therefore if he were to return he would face being shot.
He also stated that, while there may not be much substance in his claim of persecution on ethnic grounds or on grounds of imputed political opinion, nevertheless, he would face the death penalty as a deserter, if returned."
The tribunal's findings are at paragraph 49 onwards of the determination. They state that they have studied the evidence and questioned the respondent, and then continue:
"... but we find that, in the first place, the respondent has not claimed, and is not claiming, that he fears persecution on ethnic grounds; in the second place, there is no evidence, in any of the documents before us, that the respondent was ever seen as a potential opponent of the government; in fact the respondent has been a member of the government army, the NRA, since the army in respect of which he had been fighting, had joined with the NRA in 1986, had been promoted from private to corporal, from corporal to 2nd Lieutenant and from 2nd Lieutenant to 1st Lieutenant, between 1986 and 1989; and, in the third place, there is no evidence whatever to the effect that the respondent's tribe, the Baganda, is seen, or has been seen, to be in opposition to the Government."
"50. Further, while the Special Adjudicator had accepted the account given by the respondent, particularly regarding his escape and his having had a passport obtained by his wife, in the manner explained, nevertheless, the Special Adjudicator would not appear to have noted or queried that evidence or tested its veracity or credibility. In our considered opinion of this matter, we note that the respondent's story of how he had obtained his passport could not have been true, as, while he claimed to have given one slip of paper, carrying his signature, to his wife, and that that signed slip appeared in the respondent's passport, the respondent's signature appears, again, on the passport, on the next page. When this was put to the respondent, the respondent was unable to give us any satisfactory explanation for this, beyond stating that the second signature could well have been a forgery.
51. If the Special Adjudicator had queried this obvious discrepancy, he could very well have taken a different view of the respondent's credibility, as we do.
52. Also, the discrepancy between the respondent's height as appears on the military identification card, and that on the passport, has not been satisfactorily explained before us by the respondent, nor was it explained before the Special Adjudicator, nor even referred to by him. If it had been considered, a different conclusion may have been drawn on the credibility issue as it leaves great uncertainty in the mind as to whether Stephen Ssebagala and Patrick Kawesa are one and the same person; no valid reason having been given by the respondent for the continuation of the alias on the amalgamation of the UFM and the NRA, when any repercussions that may have fallen on his family, would have ceased to exist. We find the respondent's credibility to be flawed in this respect also, as a military identity card showing a difference of one foot in height would not inspire confidence in any soldier at a checkpoint and would lead to immediate investigation.
53. Further, on the question of the respondent's account of his escape, which the Secretary of State did not believe, the Special Adjudicator accepted it without any question, when it was obvious, from the evidence, that the story was an implausible one, when the respondent had said that, while he had bribed the guards to be put on the water-fetching detail, he had never said, as he claimed, for the first time, before us, that he had bribed the guards to let him escape, when on the detail; all that he has said, previously, being that, while on the detail, he had sought permission to defecate, had run away and had managed to escape, even though shots had been fired, while, if he had bribed the guards to let him escape, he would not have had any fear of the shots, which would not, logically, if the guards had been bribed, have been aimed at him.
54. We, like the Secretary of State, are not satisfied with the credibility of the respondent on this aspect of the matter also.
55. We fully appreciate that we should be reluctant to upset findings of fact and credibility by the Special Adjudicator, and should do so only in rare circumstances. However, Jowitt J, in Katheeskumaran  IAR 162 held that a Tribunal was entitled to review a Special Adjudicator's determination on matters of fact and his assessment of the background material, and that previous Tribunal decisions which suggested to contrary, as a matter of law, were wrongly decided. The Court of Appeal decision Assah  Imm AR 519 was to the same effect.
56. We, having considered the evidence in this matter, are satisfied that the Special Adjudicator's determination on matters of fact, his findings on credibility and his assessment of the background material in this matter, are flawed.
57. In our considered opinion, the Special Adjudicator did not properly address his mind to the issues before him, had based his credibility findings on matters which, if properly examined, and considered, would have led to different conclusions and findings, which, we are fully satisfied, and have shown the respondent not to be credible, and that he wholly misdirected himself on the question of the respondent's claim to fear persecution and to have a well-founded fear of -- persecution on the ground of ethnicity and imputed political opinion.
58. On the question of the respondent's claim that, as a deserter, he would face the death penalty, we consider that, in the first place, the Special Adjudicator did not address his mind to that aspect of the matter at all; in the second place, we, just as the Secretary of Statewas, are not satisfied that the respondent was ever detained on the second occasion and that, he never escaped from detention, and, in those circumstances, the question of desertion has not been established. And, even if the respondent were a deserter, he has not shown that he is a deserter for any Convention reason, be it racial, political or on account of his imputed political opinion; and any punishment which he might incur, in those circumstances, has not been shown to be sufficiently excessive to bring it within the terms of the Convention, as the only evidence on the matter, is that of the respondent himself, to the effect that he would face the death penalty, but there is nothing in any of the objective evidence before us, to support that contention.
59. In our opinion, the Special Adjudicator erred in finding that the respondent had established a well-founded fear of persecution for a Convention reason if he is returned to Uganda, and we are fully satisfied that the Secretary of State has, on the balance of probabilities, established that the Special Adjudicator had erred in allowing the respondent's appeal, for the reasons set out in the Secretary of State's grounds of appeal."
Accordingly the tribunal set the determination of the special adjudicator aside.
It will be seen from paragraphs 42 and from an earlier paragraph that the tribunal applied, that it took the view that the onus, the standard of proof which the Secretary of State had to meet was on a balance of probabilities. This means that the Secretary of State would have to show on the balance of probabilities that the appellant had shown no reasonable likelihood of persecution for a Convention reason. Basing himself on this point Mr Sorjoo, for the applicant, has submitted that the tribunal must have misdirected itself in relation to the questions of fact. His submission is that the tribunal could only interfere with the special adjudicator's findings of fact if it was satisfied that the findings of fact were unsustainable. Indeed he went further and submitted that the tribunal should not simply have heard part of the evidence but rather should have remitted the case to the special adjudicator and they should have made clear the correct onus, namely that they had to be satisfied if they were interfering with any factual finding that the finding was unsustainable and that they fell into error. He also submit that in making their findings of fact the tribunal should have applied the Sivakumaran standard and should have asked whether there was a reasonable likelihood of the facts being put forward being true.
It is well established that the tribunal can interfere, in an appropriate case, with findings of fact made by the special adjudicator. The rules provide that the tribunal is entitled to hear evidence and to call evidence of its own motion. Thus it must follow that if they make findings of fact which render those made by the special adjudicator findings of fact which ought not to have been made, that they can so determine. There are several authorities on this point some of which we have been taken to. The skeleton argument referred to the case of Anatoli Borrissov v Secretary of State for the Home Department  Imm AR 524 in which Hirst LJ confirmed that conclusions of fact by special adjudicators could be reviewed by the Immigration Appeal Tribunal. He added that:
"... in accordance with general principles, the Immigration Appeal Tribunal will naturally be most reluctant to interfere with a finding of primary fact by the special adjudicator which is dependent on his assessment of the reliability or credibility of a witness who has appeared before him."
However, the court in Tarlochan Singh v Secretary of State for the Home Department went on to say that, in the final analysis an appellate tribunal not only can but should reverse a finding of fact if it is unsustainable.
When one goes to Borrissov it is clear that the court did not wish to set out a list of the circumstances in which it could be said that a finding of fact was unsustainable. At page 536 Hirst LJ, having quoted from Buxton J from an earlier case, said:
"Those criteria are no doubt useful pointers to cases where it would be appropriate for the Immigration Appeal Tribunal to intervene. But they cannot, in my judgment, properly be treated as a comprehensive or definitive list of the relevant circumstances, such as would circumscribe the Immigration Appeal Tribunal's general jurisdiction as laid down by the 1971 Act."
However, in my judgment, unsustainability includes the situation where the tribunal reached the view that the adjudicator's findings were against the weight of the evidence.
What made the present case unusual was that the tribunal had heard evidence themselves and were not simply reviewing this case from the record of proceedings and the documents placed before the special adjudicator. They specifically reminded themselves, however, of the need for them only to intervene in rare circumstances (see paragraph 55 of their determination set out above).
As I see it the tribunal, in saying that the burden of proof was on the Secretary of State on a balance of probabilities, was correctly identifying the burden of proof on appeal and were not in those paragraphs dealing with the question of fact-finding. So far as fact-finding is concerned no authority has been produced to us to suggest that the process of fact-finding, particularly primary fact-finding, is somehow different in the tribunal as opposed to the fact-finding in other courts of law. As I see it what the tribunal had to do was to make findings of fact from the evidence which it itself heard. It then had to consider whether on a totality of the evidence there was a reasonable likelihood of persecution for a Convention reason. Accordingly I do not consider that there is a reasonable prospect of appeal in saying that the tribunal misdirected itself as to its function in relation to findings of fact and it should not have interfered with findings of fact that had been made to the special adjudicator. I note that it did so with reluctance and that it did so on the strength of evidence which it had itself heard and which it was in a better position than the special adjudicator to make findings on.
Mr Soorjoo has submitted that the tribunal should not have dealt with the matter on this partial basis and that it should have instead remitted the matter to the special adjudicator, but, as I have set out above, the tribunal were careful to give the applicant an opportunity to say what his case was. At paragraphs 40 and 41 they record further evidence which he gave in response to that invitation and accordingly it seems to me that there would be no reasonable prospect on appeal of saying that the tribunal should have remitted his case to the special adjudicator to go through all the evidence again.
I now move to the second main point made on this application and that is that the evidence showed that there was a reasonable likelihood of persecution for a Convention reason. On this aspect of the case it does appear that there may have been some change in the applicant's own case in the determination of the special adjudicator. The special adjudicator records that the case for the appellant said that the appellant feared persecution on account of his political opinion and his ethnicity, but, as is clear from the tribunal's own decision it is not the fact of being a member of the Bagandan tribe which gives rise to the applicant's fear. In the tribunal's own determination, as I have already set out above, there was a reference to the fact that the applicant is an ex-member of the UFM which had joined with the NRA, and it is recorded at paragraph 21 of the tribunal's finding that this placed him under a certain suspicion. At paragraph 41, however, the tribunal states that the applicant has stated that, while there may not be much substance in his claim of persecution on ethnic grounds or on grounds of imputed political opinion, nevertheless, he would face the death penalty as a deserter, if returned. As I understand it from the submissions put to us today, the case which the applicant was seeking to put was that he had been detained in the past without charge. I do not think it is put as high as saying that there was maltreatment during that period of detention, or that it is said that he had been targeted in the past because he was a Bagandan ex-member of the UFM whom had joined the NRA. This is the argument which is alluded to by Mr Bartram in paragraph 21 of the tribunal's decision.
Statements have been put in since the tribunal's decision in which Mr Bartram says:
"I recall making a submission that with respect to the Baganda Tribe in Uganda that ethnicity is inexorably tied to the political opinion imputed to a person of that ethnicity. I do not recall nor did I ever intend to suggest that it was not a part of the Appellant's case that he was persecuted on account of his being a member of the Baganda Tribe. I did not concede that the appeal turned solely on the military service point and that the rest of the application was conceded.
I recall the appellant giving evidence but in the giving of his evidence I do not believe that the Appellant accepted that there was nothing in his case apart from this military desertion point.
I do not know how the Tribunal could have concluded from my words or from the Appellant's words that the appeal was effectively conceded [save] for the argument as to military desertion."
And the applicant himself has also put in his statement the critical paragraph is paragraph 5 where he says:
"I do not recall, nor did I ever intend to suggest that the desertion point was the sole basis of my appeal or that any of the other grounds submitted in support of my case were being withdrawn."
It is difficult from those statements to deduce exactly what the case being put to the tribunal was, and therefore I would express every sympathy with the tribunal that, as I have understood it today, the case was being put on the basis that the applicant is a Bagandan, he is an ex-member of the UFM, which was previously merged into the NRA, and that there is now a concern that he would be targeted because he was a Bagandan ex-member of the UFM and that he would be targeted in the future.
Because it is possible that there has been some misunderstanding I have reviewed and given anxious scrutiny to the evidence in support of what is being contended. It is not directly said in the statement of the applicant, as I have explained. Mr Sorjoo has directed us to a bundle of cuttings and in particular to two items in that bundle. The first is dated April 24th 1987. It is a printout from Reuter Textline and has the headline: "The Ugandan Freedom Movement (UFM) has announced it will pull out of the National Resistance Movement (NRM) –led coalition government, leaving President Museveni facing a fresh political crisis." And Mr Sorjoo particularly directed our attention to the paragraph which reads:
"UFM has all but declared war on the government. 'The movement is ready to co-operate and work with any other organisations struggling to liberate our country from the [palms] of Marxist dictatorship', said Bwengye. He added that UFM has strong support in the Baganda region, as well as 1,000 soldiers on standby."
He also directed us to another cutting, dated March 11th 1995, from the "Indian Ocean Newsletter", stating that the President was worried about the role of former members of the National Revolutionary Army in banditry and violent anti-government activities; and that he was on the point of thinking there must be an army within the army because of their possible links with the serving military personnel rebels found wearing brand-new uniforms stolen from the NRA, disappearance of a lorry carrying ammunition near Nakasongola, desertion of Major Herbert Kikomeko and thirty of his men, etc. That cutting seems to me to be dealing with a rather separate matter of banditry, and not dealing with the question of persecution on grounds of origin.
The remainder of the cutting, which I have not referred to, deals mainly with the fact that there is rebel activity in support of a federalist movement and that Baganda, which is a separate kingdom within Uganda should be a federal member of Uganda. But I have not myself seen evidence which suggests ethnic problems or persecution of the type which the applicant is relying on. Concentrating on the particular cuttings which have been drawn to the court's attention it does not seem to me that the tribunal or the special adjudicator could, if the matter was sent back to them, properly conclude on the basis of those two cuttings that there was evidence which showed a reasonable likelihood of persecution for a Convention reason on the basis put by the applicant. Accordingly it seems to me that on this point, too, there is no reasonable prospect of success on appeal.
In those circumstances I would dismiss the application although I would be content that there should be an extension of time since this matter has been fully argued.
LORD JUSTICE SCHIEMANN:I agree both with the reasoning and the conclusion of my Lady. The tribunal having heard the appellant was entitled to take a different view on his credibility from that taken by the special adjudicator; therefore, the fact that the determination was on appeal did not seem to me to be of very much significance.
The proper approach by the decision-maker in the present case, the Immigration Appeal Tribunal, is that it must look at all the material in so far as it is found credible, and decide whether there is a real risk of persecution. This court's approach is to see whether the tribunal have made any error of law. I, too, can see none in the approach by the tribunal and I do not consider that this appeal would have a real prospect of success. So we extend the time but we refuse leave.
(Appeal dismissed with costs; legal aid assessment).