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	England and Wales Court of Appeal (Civil Division) Decisions
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> Todorovici, R (on the application of) v Immigration Appeal Tribunal [2001] EWCA Civ 1064 (27 June 2001) URL: http://www.bailii.org/ew/cases/EWCA/Civ/2001/1064.html Cite as: [2001] EWCA Civ 1064

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IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM HIGH COURT OF JUSTICE
(MR JUSTICE JACKSON)

		Royal Courts of Justice Strand London WC2 Wednesday, 27th June 2001

1. LORD JUSTICE BUXTON: This is a renewed application for permission to move for judicial review of a determination of the Immigration Appeal Tribunal which upheld the determination of a Special Adjudicator who rejected the claim for asylum of the applicant, Mr Iosif Todorovici.
2. The matter has taken a somewhat unusual course which it will be necessary for me to mention briefly, but I say immediately that although I appreciate of course that this application is of the first importance to Mr Todorovici, his wife and family, it raises in my judgement no issue that is of interest to anyone other than the immediate protagonists in it. For that reason I do not intend in this judgment to set out again the facts and background of the matter which are to be found not only set out by the Special Adjudicator but also in considerable, and if I may respectfully say so, conscientious detail in the judgment of Jackson J. Anyone who wishes to know more about this case should refer to the judgment of that learned judge. I shall come directly to the matters in issue.
3. The Special Adjudicator, having heard evidence, made substantial findings of fact. She accepted that Mr Todorovici (and deplorably so) had been ill-treated to an extent that might be argued to amount to torture by the police in Romania. That mainly, but not exclusively, occurred after his wife had left the country, she claiming to be a person who was in fear of persecution because of her political opinions. The adjudicator however found on the basis of evidence before her as to the posture of the Romanian authorities with regard to misbehaviour on the part of the police force, and also on the basis that, as she understood it, the applicant had not availed himself of the opportunity to complain to a higher authority in Romania, that he had not taken the appropriate and available action within the legal system of that country in order to seek redress against, and the prevention of, the activities of the police against him.
4. She further considered that since under the laws of Romanian he was free to travel throughout Romania, and also because his business activities could be prosecuted anywhere within that country, he could have removed himself from the place where he was, as he claimed, persecuted. He in fact moved within Romania in 1997. As a result of a different level of attack perpetrated before his wife left the country he had moved to a place called Turda near to where his mother-in-law lived and remained there for about a year.
5. The adjudicator on the basis of those findings determined that, despite accepting the evidence of physical attack on Mr Todorovici, there was no reasonable likelihood that he would be persecuted were he to be returned to Romania; and further that it would not be unduly harsh to expect him to relocate to another part of the country. Those are findings that in the judgement of the Immigration Appeal Tribunal were well open to the adjudicator, properly reasoned and based upon a proper understanding of the law.
6. Before the adjudicator, Mr Todorovici was represented by counsel. He then made what appears to be a home-made application to the Immigration Appeal Tribunal, which is set out by Jackson J and was very lacking in specificity. The Immigration Appeal Tribunal read the adjudicator's determination and came to the conclusion that it was not flawed in law.
7. In the application for judicial review before Jackson J the applicant was again represented by counsel, someone different from the gentleman who had represented him before the Special Adjudicator and someone different again from Mr Gordon Woolridge, who has appeared before me today. Counsel clearly, if I may say so, raised detailed complaints about the Special Adjudicator's decision, all of which Jackson J rejected. In my judgement the judge was entirely right in the conclusion that he came to, saying that the Special Adjudicator's findings were unassailable in law.
8. Subsequent to that, there was put before the court what was described as a revised statement of grounds, dated 15th June 2001, and settled by counsel experienced in this area of work, and someone yet again from the three members of the bar to whom I have already made reference. That revised statement of grounds made a number of complaints, principally two-fold; first that the Special Adjudicator had erred in mistaking the requirements for imputed political opinion (which was apparently one of the grounds upon which Mr Todorovici said that he had been persecuted); and second that there were serious errors in the adjudicator's determination of the facts before her.
9. It was further submitted that it should have been obvious to the Immigration Appeal Tribunal that these points of convention law arose, and they should have taken them up on their own motion. That was an argument put before Jackson J and he rightly rejected it on the basis of the judgments in this Court in R v Secretary of State for the Home Department [1998] QB at p. 196.
10. In his submissions today Mr Woolridge has not in fact averted to the revised statement of grounds, but has made a number of further or different complaints. I can summarise them as follows. First of all he says that the adjudicator was simply wrong to say that Mr Todorovici had not availed himself of the option of internal flight, referring to his removal of himself to the place called Turda. It was suggested by Mr Woolridge that the adjudicator did not refer to this at all even though it had been mentioned in the interview notes before her. That of course is not correct. The adjudicator was well aware that that had occurred but, rightly, placed that in its proper chronological context as not being an act upon Mr Todorovici's part designed to avoid persecution.
11. Secondly, and perhaps more substantially, Mr Woolridge seeks to reopen a point that seems to have been made, at least in outline, before Jackson J, that is to say that there was substantial evidence which apparently was not put before the Special Adjudicator that Mr Todorovici had in fact complained to the higher authorities and had been turned away. Mr Woolridge said he had a substantial bundle of materials in his possession which had been throughout in the possession of his client. He could not say if they had been in the possession of any previous advisors. They demonstrated that the Special Adjudicator had dealt with the matter on a false basis. That matter, as I say, was before Jackson J. The judge dealt with it thus at paragraph 25 of his judgment:

" As counsel very candidly accepts, there is no indication that this point was raised before the Special Adjudicator or that any evidence was placed before her to that effect. Accordingly, the Special Adjudicator's decision cannot be faulted on that ground."

12. That, if I may respectfully say so, is entirely correct. These are judicial review proceedings. They are not an appeal, much less are they an appeal on evidence that was not before the Special Adjudicator. I have no explanation of why the evidence was not put before her and of course have no idea of what the truth consists of. But even leaving those two points aside, it is not open to an applicant to complain at this stage of the proceedings that there was evidence that could have been considered by the Special Adjudicator but was not, for whatever reason. That point therefore fails.
13. The third complaint that Mr Woolridge makes refers to the question of imputed political opinion. The applicant complained that he had been persecuted on political grounds as well, as I understand it, on grounds of his race. In paragraph 5.2 of her determination, the Special Adjudicator said this:

"The appellant claims that he was persecuted through imputed political opinion. I find however that his political involvement has been slight and he is vague about his so-called political activities even bearing in mind his illness."

14. The complaint that is made about that passage, as was made in the document described as revised grounds which I have already averted to, was that the adjudicator had overlooked or mistaken the possibility of the nature of the case, that he was being persecuted because of disapproval of his wife's views or in an attempt to promote the state's persecution of his wife.
15. There may or may not be something in that point. It is fair to say that it was certainly not a feature of the grounds of appeal to the Immigration Appeal Tribunal, and as far as I can see was not a complaint made to Jackson J. But in any event, as I pointed out to Mr Woolridge, in the light of the Special Adjudicator's findings the point does not arise. The first question in any asylum case is whether the applicant has a well-founded fear of persecution. The second question is whether that will be persecution on a convention ground. The applicant in this case fell at the first of those hurdles, so it was not in fact incumbent on the adjudicator to consider the grounds upon which he claimed the police had persecuted him.
16. This matter has now been considered on a different basis by a large number of tribunals including the Special Adjudicator, the Immigration Appeal Tribunal and two judges. Like all my predecessors I see no ground for criticising the decision of the Special Adjudicator. I do not give permission.
(Application for permission to appeal refused; permission refused for leave to appeal this decision)