NO: CO/3808/98
Neutral Citation Number: [2000] EWHC Admin 452
IN THE HIGH COURT OF JUSTICE 
QUEEN'S BENCH DIVISION
CROWN OFFICE LIST

Royal Courts of Justice
Strand
London WC2

Thursday, 25th May 2000

B e f o r e:

MR JUSTICE DYSON

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R e g i n a

‑v‑

IMMIGRATION APPEAL TRIBUNAL
EX PARTE SHEN

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Computer‑Aided Transcript of the stenograph notes of
Smith Bernal Reporting Limited,
180 Fleet Street, London EC4A 2HG
Telephone No: 020 7421 4040 Fax No: 020 7404 1424
(Official Shorthand Writers to the Court)
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MR KADRI QC and MR E PIPI (instructed by Jonathan & Chuks, 48 Balls Pond Road, London N1 4AP) appeared on behalf of the Applicant
MR WARD (instructed by the Treasury Solicitors) appeared on behalf of the Respondent

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J U D G M E N T
Thursday, 25th May 2000

1.	MR JUSTICE DYSON: This is an application for judicial review of the refusal by the Immigration Appeal Tribunal, on 15th February 1998, to grant the applicant permission to appeal against the dismissal by the special adjudicator, on 27th May 1998, of his appeal against the refusal by the Secretary of State to grant him political asylum.
2.	The applicant was born in China. He is now 45 years of age. He arrived in the United Kingdom on 2nd September 1989 and was granted leave to enter as a student for six months. On 25th July 1991 he applied for asylum. His claim was based on his assertion that he had taken part in demonstrations for democracy and supported students in Guangzhou between the end of May and early June 1989.
3.	His claim was rejected by the Secretary of State by a letter dated 9th February 1996. The Secretary of State said that he was aware that demonstrations in Guangzhou were much smaller and less dramatic than those in Beijing and that in the wake of the Tiananmen Square incident there were relatively few arrests in the Guangdong province. He said that he was aware that high level security officials in China had stated that all cases from the period of the Tiananmen Square  demonstrations had been concluded; and that the Chinese authorities had stated openly that they were not taking action against those returning to China whose involvement in the 1989 pro‑democracy movement was at a minimal level “as yours obviously was”. He concluded therefore that it was “highly unlikely in the extreme” that the applicant would come to the adverse attention of the Chinese authorities “due to your alleged participation in the demonstrations and donations of money were you now to return to China.” His conclusion therefore was that the Chinese authorities had “no specific interest in you personally whatsoever.”
4.	The applicant appealed. He obtained four letters on which he relied before the special adjudicator in support of his case. He sent copies of the letters, to the Secretary of State a few days before the hearing. There was no response from the Secretary of State to those letters and no comment upon them before the hearing. As will become apparent, those four letters have assumed cardinal importance in this application. In short, the letters, if genuine, were powerful evidence that the applicant was still, long after he had left China, of interest to the authorities.
5.	At the hearing before the special adjudicator the applicant was represented. He adopted his statement and  gave brief additional evidence. The special adjudicator recorded at page 2 of her determination that his claim was that he had taken part in demonstrations for democracy and in support of the students between the end of May and early June 1989; that he had had a job at the Guangzhou post office from 1978 to 1989 and that his view was that he would still be investigated if he returned and would be likely to be persecuted.
6.	He said that he had a sister in China and that he had received a letter from her ‑ this was one of the four letters to which I have referred. That letter was dated 25th November 1993 and it included the following:
“I would like to tell you an important event happened yesterday. Two men from the Public Security Bureau came to our home to ask for information regarding your participation of the Six‑Four democracy movement in 1989. They asked when you would be back. We said we did not know. According to this, for your safety you had better not come back too soon.” 
7.	There were three other letters all of which were in Chinese, and accompanied by translations into English. Each of the Chinese documents bore a stamp which purported to be a stamp of the police authority. Two of them were addressed to the applicant’s family. The letter at page 36 in the bundle is dated 31st October 1996 and purports to come from the Liuhua police  station. It refers to the applicant and says:
“According to municipal police investigations, at the time of the Tiananmen Square Incident of June 4th 1989 Shen Haibing was actively participating in the organisation of support for students carrying out anti‑government demonstrations. This is to inform you that you must report to us immediately anything about Shen Haibing’s whereabouts.” 
8.	The next letter in the bundle at page 39 is dated 1991. It refers to the fact that the police authorities launched an investigation into “the problem of Shen Haibing.” A little later it says:
“As a result of the investigations, we think Shen Haibing, who as a national cadre ought to take the protection of the state as his duty, was on the contrary at the time of the Tiananmen Square Incident of June 4 1989, taking an active part in organising support for the student anti‑government anti‑revolutionary activity. His aim was to totally deny Communist Party leadership, to deny the Socialist system, to advocate the so‑called Western bourgeois democracy, and finally to overthrow the present government, to overturn our Socialist country. Shen’s problem is serious, we must look into his criminal responsibility...” 
9.	Then at the end it says:
“Now according to higher relevant rules, it has been decided that Shen Haibing’s punishment is to be expulsion.” 
10.	The fourth letter is dated 29th June 1991, page 42, and  that is, although shorter, to similar effect.
11.	These letters were relied upon by the applicant before the special adjudicator. The applicant was asked in cross‑examination about the provenance of the letters, and he explained that they came from his sister and that he had received them early in 1997. Then the special adjudicator records this:
“I asked the appellant if he could say anything about these documents which would persuade me they are genuine.” 
12.	The special adjudicator records that the representative of the Secretary of State did not accept the documents as genuine and asked her to attach little weight to them.
13.	Then, on the penultimate page of the determination, the special adjudicator sets out her essential conclusions:
“I do however have the gravest of doubts that the appellant is telling the truth about his alleged involvement in demonstrations. I find it incredible that the appellant should say he could not remember how many demonstrations he had attended, and could only say that it was definitely more than one. He was only claiming to have been involved for a brief period before the crack down in Beijing on 4 June 1989, and if he had been involved it would have been a memorable experience to be defying the authorities in China.
The appellant’s description of how he was involved is vague and insubstantial. He said he and a few of his friends organised support. He had contacted friends to  organise support. The demonstrations he says he was involved in were outside a government building in Guangzhou. He had done nothing else apart from donating money.
I fear the documents the appellant has belatedly produced increase any doubts as to the credibility of the appellant’s story. The appellant has said that he is and was in contact with his parents and daughter and a sister in China. I do not believe he would only have heard about his alleged problems when his wife came here in June 1991. Even the documents themselves refer to enquiries begun in November 1989 when Li Ming, the appellant’s co‑demonstrator, was being investigated. If all this were true the appellant would have been informed of his danger earlier. It seems to me the whole story has been concocted to account for the long period between 1989 and July 1991 before the appellant claimed asylum, I did not have the benefit of the wife’s oral evidence.
Even if the appellant did take part as he alleges in 1989, and I do not accept this, it seems to me to be most unlikely he would face any likelihood of persecution in China as a result. The Secretary of State did not say in his refusal letter that the Chinese authorities were taking no action against anyone involved. He said they were taking no action against those whose involvement was minimal. Even on the appellant’s own story, his involvement was absolutely minimal. The UNHCR report upholds what the Secretary of State has said.” 
14.	The appeal was accordingly dismissed.
15.	The grounds of appeal to the tribunal were exiguous in the extreme, and were in these terms:
“The decision is not in accordance with the law and is against the weight of the evidence. The appellant maintains that he has a well‑found fear of persecution should he be returned to China.
Further grounds may follow.” 
16.	No further grounds were submitted. In refusing permission to appeal the tribunal said this:
“The Tribunal has considered the grounds submitted in support of the application and the Adjudicator’s determination.
The Adjudicator received oral evidence and the Tribunal will not likely interfere with an Adjudicator’s findings of fact in such cases. It considers that such findings in this case were not against the weight of the evidence and were properly supported by it.
The Adjudicator appears to have considered all the evidence before her, properly directing herself as to the proper standard of proof. The Adjudicator came to clear findings of fact, after giving to each element in the evidence the weight she considered appropriate.
The Tribunal considers that the conclusions of the Adjudicator are fully supported by the evidence, bearing in mind her assessment of the witness she heard and her assessment of the oral evidence. The Adjudicator did not err in law or in fact. In the opinion of the Tribunal this is not a proper case in which to grant leave, and such leave is refused.” 
17.	In support of this application Mr Kadri advances two submissions. His first is that there was a breach of the rules of natural justice which arose in the following way: the applicant understood from his consideration of the refusal letter of 9th February 1996 that the Secretary of State accepted that he had participated in the demonstrations but that his involvement was at a minimal level, such as would not attract the interest of the authorities. The applicant did not understand the Secretary of State to be disputing the applicant’s participation in the demonstrations altogether. The applicant therefore  approached the appeal on the footing that the real issue, and the only real issue, was whether participation at the level which he asserted would attract persecution from the authorities. In the event, as I have shown, the special adjudicator rejected the entirety of the applicant’s account and did not accept that he had participated in demonstrations at all.
18.	The applicant has stated in an affidavit, sworn on 24th March 1999, that if he had appreciated that the question of his participation was in issue, then he would have given more evidence. He says he would have been able to answer some of the points which, according to the special adjudicator were unexplained, and which led her to reject his participation in its entirety.
19.	Mr Kadri has advanced arguments based on the well‑known authority of Mahon v New Zealand Ltd and others [1984] 3 All ER 2001. For reasons which will become clear shortly, I do not feel it necessary to reach a conclusion on this first ground of challenge. I turn, therefore, to the second ground which Mr Kadri put forward as his principal basis for attacking the decision of the special adjudicator and therefore also the tribunal; this concerns the way in which the four documents were dealt with.
20.	Mr Kadri submits that, as a matter of law, since  the Secretary of State was contending that these documents were forgeries, the burden of proving this fell on the Secretary of State. Mr Ward, for whose helpful submissions on behalf of the Secretary of State I am grateful, does not take issue with that. There are now three decisions of the Immigration Appeal Tribunal which support that proposition, which is plainly right as a matter of general principle. Perhaps the most authoritative one is A B C and D v the Secretary of State promulgated on 16th July 1999. That, in turn, referred to earlier decisions which made the same point.
21.	The first question, therefore, is whether the special adjudicator directed herself properly in relation to the question of burden of proof as regards the genuineness or otherwise of the four documents. I have already cited the relevant passages in the determination. Mr Kadri submits that the paragraph, starting with the words:
“I fear the documents the appellant has belatedly produced increase any doubts as to the credibility of the appellant’s story.” 
22.	show that the special adjudicator did not appreciate that the burden of proof rested upon the Secretary of State. Mr Ward, on the other hand, submits that it is  unclear from that paragraph whether the special adjudicator had a proper understanding of where the burden of proof lay. He submits that all that the special adjudicator was doing at this point in her determination was analysing the reasons why she concluded that the documents were forgeries.
23.	I accept that the special adjudicator does not in terms say upon whom the burden of proof rests. That in itself is unsatisfactory, given the importance that these documents plainly assumed in her reasoning. They were plainly relied upon by her as an important plank leading to her conclusion that the account given by the applicant was incredible. As Mr Kadri submits, once a finding had been made of concoction as to an important part of his account, then it was almost inevitable that the applicant’s credibility generally was irretrievably damaged.
24.	It seems to me that the clue to the approach adopted by the special adjudicator lies in the third paragraph on page 4 of the determination, where she says that she asked the applicant if he could say anything about the documents which would persuade her that they were genuine. It is possible, of course, that what she had in mind there was that she appreciated that the burden of proof rested on the respondent, and that she  was strongly minded to conclude that that burden had been discharged, but that she wished to give the applicant the opportunity of seeking to displace that view. But reading the passages which bear on the burden of proof all together, I feel compelled to conclude that the special adjudicator considered that there was a burden on the applicant to prove that the documents were genuine. At the very least, I am satisfied that she did not appreciate that the burden was on the Secretary of State to prove that the documents were forgeries.
25.	The result of that is, subject to one further point, that the special adjudicator did make a fundamental error of law in relation to the burden of proof on something which went to the heart of the case on credibility. This was no peripheral matter, nor does Mr Ward seek to suggest that it was.
26.	The other point that needs to be considered, however, flows from the fact that this point, to which I have just referred, was not mentioned in the grounds of appeal before the tribunal. Mr Ward submits that for that reason I should reject this application.
27.	The leading authority as to the approach to be adopted by the tribunal in relation to matters which have not appeared in the grounds of appeal is R v Secretary of State Home Department ex parte Robinson  [1998] QB 929. The relevant passage starts at page 945G, I read from 945H:
“Because the rules place an onus on the asylum‑seeker to state his grounds of appeal, we consider that it would be wrong to say that mere arguability should be the criterion to be applied for the grant of leave in such circumstances. A higher hurdle is required. The appellate authorities should of course focus primarily on the arguments adduced before them, whether these are to be found in the oral argument before the special adjudicator or, so far as the tribunal is concerned, in the written grounds of appeal on which leave to appeal is sought. They are not required to engage in a search for new points. If there is readily discernible an obvious point of Convention law which favours the applicant although he has not taken it, then the special adjudicator should apply it in his favour, but he should feel under no obligation to prolong the hearing by asking the parties for submissions on points which they have not taken but which could be properly categorised as merely ‘arguable’ as opposed to ‘obvious’. Similarly, if when the tribunal reads the special adjudicator’s decision there is an obvious point of Convention law favourable to the asylum‑seeker which does not appear in the decision, it should grant leave to appeal. If it does not do so, there will be a danger that this country will be in breach of its obligations under the Convention. When we refer to an obvious point we mean a point which has a strong prospect of success if it is argued. Nothing less will do. It follows that leave to apply for judicial review of a refusal by the tribunal to grant leave to appeal should be granted if the judge is of the opinion that it is properly arguable that a point not raised in the grounds of appeal to the tribunal had a strong prospect of success if leave to appeal were to be granted.” 
28.	Mr Ward makes the perfectly fair point that if the argument, which I have just accepted, was obvious, then it is strange that not only was it not mentioned in the grounds of appeal, but it was not mentioned even in the  skeleton argument prepared by Mr Kadri and Mr Pipi on 9th March for this hearing.
29.	It seems that the point only occurred to Mr Kadri relatively recently. He gave Mr Ward advance notice that he intended to take it shortly before the hearing. So, submits Mr Ward, ‘How did can this be an obvious point?’ That submission has a superficial attraction. But the word “obvious”, used by the Court of Appeal in ex parte Robinson, is used in a rather special sense. It means a point which has a strong prospect of success, as opposed to a point which is merely arguable. Usually, a point which has a strong prospect of success will be a point which jumps out of the pages, and which competent and experienced counsel would be expected to identify and at least incorporate in a skeleton argument prepared for a hearing. But it is not impossible for a point not to be spotted even by experienced counsel but which, once identified and considered, it is clear has a strong prospect of success.
30.	It seems to me that the burden of proof point in this case falls into that category. In my view the point did have a strong prospect of success. Indeed, for the reasons that I have given, the point succeeds. It does involve, however, considering two passages in the special adjudicator’s determination with a little care. I am satisfied, therefore, that the Robinson test has been made out in this case. In saying that, I am acutely conscious of the burdens facing tribunals when they have to consider grounds of appeal ‑ such as those in the present case ‑ which are unhelpful to the point of being almost completely useless. When the tribunal is faced with grounds of appeal of this kind, then a considerable burden falls on their shoulders. However, all that the tribunal is required to do is to consider the determination carefully. Once the burden of proof point had been identified, then it should not have been a matter of great difficulty for the tribunal to have reminded itself of the law (which has now been promulgated by the tribunal on a number of occasions), that applies in relation to the burden of proof as regards allegedly forged documents.
31.	For the reasons that I have given, however, I am satisfied that the special adjudicator did err in relation to her approach to the burden of proof. At the very least it is strongly arguable that she did so err, and that although that point was not taken in the grounds of the appeal, this is a matter which should have been picked up by the tribunal. Had it been identified by the tribunal then, in my view, the tribunal should have granted leave to appeal.
32.	This is an asylum case. It has been said on countless occasions that anxious scrutiny is required to be given. That extends, in my judgment, to considering anxiously the text of a determination by a special adjudicator. For all these reasons, this application succeeds.
33.	MR KADRI: My Lord, I have two applications: firstly, I do it on behalf of the legal aid for the costs; and, secondly, legal aid taxation?
34.	MR JUSTICE DYSON: I was told the other day that it is no longer called legal aid taxation. I am afraid I cannot now remember what it is called ‑‑ detailed assessment.
35.	MR WARD: My Lord, one thing: is your Lordship minded to indicate precisely what relief your Lordship is granting? Obviously there is no question of the tribunal not complying with your Lordship’s judgment. It is just on the Form 86A it asks for certiorari in respect of the refusal of leave. In my respectful submission that is plainly appropriate. But it also goes on to ask for mandamus directing the application for leave be granted.
36.	MR JUSTICE DYSON: I think it is normally sufficient just to grant certiorari.
37.	MR WARD: Yes, precisely so, my Lord. If your Lordship would give me a moment. My Lord, if I understand my  instructions correctly it is simply, yes, certiorari is sufficient.
38.	MR JUSTICE DYSON: Mr Kadri, you are content with certiorari?
39.	MR KADRI: Once your Lordship quashed then the application remains there. The decision is quashed and within ten days if it is not‑‑‑‑
40.	MR JUSTICE DYSON: Yes, of course, it is automatic. So I will simply quash the decision refusing leave.
41.	MR WARD: My Lord, I would like to be heard on the question of costs?
42.	MR JUSTICE DYSON: Yes.
43.	MR WARD: I am grateful. Simply this: the point which your Lordship has found for the applicant has been raised at the 11th hour, not today but it was raised at the last hearing which was adjourned.
44.	MR JUSTICE DYSON: When was it raised?
45.	MR WARD: 13th March 2000 and to give your Lordship some idea these papers on the back sheet are 13th August 1999 and there are rather a lot of annotations on the back.
46.	The short point is that I do not want to overstate the case. The case has moved a great distance from the way it was originally pleaded, it has even moved a distance from the way my friends put their skeleton arguments in. Yes, of course, we had a chance to  reconsider but by that time the case was already in the list and inevitably that makes a difference to the way one views whether to proceed or turn back. All I say is that no order to costs would be appropriate. I do not ask for my costs.
47.	MR JUSTICE DYSON: That would be ambitious. Should you not pay some of their costs if you were told they were taking this point on 13th March?
48.	MR WARD: At the most, I would submit, then their costs since 13th March would be appropriate.
49.	MR JUSTICE DYSON: Well, it would be far better to say you should pay a proportion of their costs rather than do that. What do you say a fair proportion would be?
50.	MR WARD: Well just to recap briefly the history of this application: Mr Pipi put in the application which was refused on the papers, it was then granted ex parte by Latham J. Mr Pipi attended on that occasion. Then we had an abortive hearing of the substantive matter on 13th March, then we have today.
51.	So it must be the case that at least a third of the costs have been incurred since 13th March just being a bit rough and ready there; Mr Kadri attending twice, Mr Pipi attending once and Mr Pipi having conduct of the matter up to Mr Kadri’s involvement. So if your Lordship would be minded just to reduce it by a third  that would, of course, be rough and ready but would represent a reasoned basis for that approach?
52.	MR JUSTICE DYSON: Yes, what do you say Mr Kardi?
53.	MR KADRI: My Lord, it was open to my learned friend to  ‑‑ I accept that there were paper applications. It incurred a lot of costs because merely documents were submitted and then application for leave, which lasted 15 minutes, and the last hearing, when my Lord it was the substantive hearing, it lasted two hours. So I would not object to one‑third.
54.	MR JUSTICE DYSON: I think that would meet the justice of the case. You are entitled to two‑thirds of your costs. Thank you both very much.