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You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Hider v. Secretary of State for the Home Department [2003] ScotCS 227 (14 August 2003) URL: http://www.bailii.org/scot/cases/ScotCS/2003/227.html Cite as: [2003] ScotCS 227 |
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EXTRA DIVISION, INNER HOUSE, COURT OF SESSION |
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Lord Kirkwood Lord Hamilton Lord Wheatley
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XA53/02 OPINION OF THE COURT delivered by LORD KIRKWOOD in APPEAL under section 58(4) of and paragraph 23 of Schedule 4 to the Immigration and Asylum Act 1999 by ABDEL MADJID HIDER Applicant and Appellant; against A decision of an Immigration Appeal Tribunal to refuse asylum communicated to the appellant on 11 December 2001 SECRETARY OF STATE FOR THE HOME DEPARTMENT Respondent: _______ |
Act: Stark; Morton Fraser (Applicant and Appellant)
Alt: Lindsay; H.F. Macdiarmid (Respondent)
14 August 2003
[1] The appellant is a national of Algeria. He was born on 13 September 1974. On 24 November 1998 he made a claim for asylum. The claim was refused by the Secretary of State in a letter dated 27 July 2000. Thereafter, on 2 September 2000, the appellant was served with a notice of removal as an illegal entrant, giving directions for his removal to Algeria. The appellant appealed and the appeal was heard by an adjudicator in Glasgow on 6 March 2001. On 1 May 2001 the appeal was dismissed. Leave to appeal against the adjudicator's determination was granted on 22 May 2001. The appeal was heard by the Immigration Appeal Tribunal on 17 September 2001 and on 11 December 2001 the Tribunal dismissed the appeal. On 18 February 2002 the Tribunal refused the appellant leave to appeal to the Court of Session but, on 13 September 2002, this court granted leave to appeal. [2] Before the adjudicator there was lodged an account of the appellant's immigration history as summarised in the relative Home Office form ICD.1024. It narrated that the appellant claimed to have arrived in the United Kingdom in October 1998. He entered the United Kingdom via Spain on ship and minibus. He was arrested on 11 November 1998 by Glasgow Airport staff trying to board a plane to New York. He was in possession of a forged French passport and was detained at H.M. Prison, Gateside. He claimed asylum on 24 November 1998. The basis of the appellant's claim to asylum was summarised in the Home Office refusal letter of 27 July 2000 in the following terms:"3. You claim that you photographed demonstrations and your colleague Farid Gendouz interview[ed] families that had suffered as a result, due to this, you claim that the GIA were after you and shot you in the knee. You also claim that the PCU (sic) came to your home and took you away. You were interrogated for three weeks about photographs you had taken, but managed to escape."
"TO WHOM IT MAY CONCERN
Dear Sir or Madam
ABDEL MADJID HIDER, 167 LANGSIDE ROAD, GLASGOW, G42 7JX
DATE OF BIRTH: 13.9.74
I am able to confirm that Abdel Hider has suffered a number of injuries over the years as a result of being tortured in Algeria. In June 1991 he received a blow to the back of his head resulting in a deep laceration. He also had nine of his fingers fractured. There is still some residual deformity apparent. At the same time his two front teeth were broken.
In 1997 he was shot in the left thigh, and had to have two bullets extracted.
In September 1998 he received electricity burns to both elbows where there is evidence of scarring.
I hope this information is helpful in support of his application for asylum.
Yours sincerely
Dr. Carol McGivern".
"[38] I do not consider that the GP letter of 8 February 1999 is useful or reliable. There is no indication that the author has any experience in the treatment of torture victims. She relays uncritically what she has been told. It is not an objective report, as is obvious from the final sentence, where she expresses the hope that the information is helpful in his claim for asylum."
The appellant appealed to the Immigration Appeal Tribunal and his Grounds of Appeal were as follows:
"1. With regard to the medical report lodged on behalf of the appellant. The special adjudicator should not have allowed himself to be prejudiced by the manner of presentation by the doctor. Admitted it was not helpful that the doctor worded her medical report to say that the appellant had been tortured but her examination does concern scarring and residual deformity which is consistent with the appellant's account of the injuries he received. It is irrelevant that the ultimate paragraph of the letter states the doctor's wishes that the information is helpful in support of the appellant's claim. This does not mean that the report is not objective. The doctor has a professional obligation to report accurately. The Special Adjudicator has failed to make proper findings in respect of the alleged torture.
2. In his findings regarding the papers lodged at bundle C for the appellant. The basis of the claim for asylum of the appellant referred to in the papers [another Algerian national, Abdelhamid Hichem] was persecution by the PCO. That appellant was given exceptional leave to remain, presumably therefore his account has been believed by the Home Office. This should add weight to the present appellant's allegations regarding the behaviour of the PLO (sic). Given the risks involved of persecution and the background situation prevailing in Algeria, he should be given the benefit of the doubt. The Special Adjudicator stated that having seen and heard the appellant give evidence, he was not impressed by him as a witness. He had failed to state why he reached this conclusion and he has failed to state whether he rejects the appellant's witness evidence in total or if not, which parts he accepts.
3. The Special Adjudicator has narrated a history of the situation in Algeria. He has not stated from where the information contained therein is derived. The Special adjudicator failed to state what weight he has attached to the objective evidence lodged by the appellant except in relation to the book extracts which he deals with at paragraph 34. The special adjudicator has attached undue weight to said book extracts in assessing the appellant. The books in their entirety, have not been read by the Special Adjudicator. The objective background information lodged by the appellant supports his account of the situation in Algeria and his own circumstances. Specifically at page 4 of production 2 bundle B for the appellant, reference is made to a court sentencing a person to death in absentia allegedly for being a party to a terrorist act. Further at page 5 of same production, reference is made to harassment by the government of journalists. The special adjudicator has stated at paragraph 36 of his determination that there is no objective support regarding these matters.
4. In attaching undue weight to the fact that the appellant obtained a false French passport in assessing the faxed extract referred to at paragraph 36 of the Determination. It is common practice for asylum-seekers to obtain false documentation to facilitate travel and it is known that such documentation can be obtained. The appellant obtained the said false passport from member of the Algerian community in London. The relevant extract relating to the appellant been sentenced to death was faxed from Algeria. It would be reasonable to suppose that if the appellant's object had simply been to produce a false document to support his asylum claim he could have produced a well forged document in this country rather than relying on a fax. The appellant is not responsible for the fact that his father did not safely feel that he could send the principal by post."
"27. With regard to the first ground of appeal the Adjudicator had merely commented upon the general expression of goodwill in the report from the General Practitioner dated 8 February 1999. Indeed what the adjudicator said was, that there was no indication that the writer of the report had experience of treatment of torture victims, that she had accepted uncritically the whole of the history she had been given, and that the report was not objective in the sense that a hope was expressed that the information given was helpful in the appellant's claim for asylum. Whilst such an expression of goodwill might well be intended to convey simply a general beneficence on the part of the writer, it is clear that the Report was specifically obtained for the appellant for the purposes of the appeal, was based on history given, was given by a writer who had no special expertise or training with reference to torture-induced injury, and who was well-disposed towards the appellant. We consider that proper findings have been made in this respect."
In the reasons for their decision the Tribunal made no mention of the medical report by Dr. von Kaehne.
[12] The Tribunal took the view that the second Ground of Appeal, which related to the way in which the asylum claim made by another applicant, Abdelhamid Hichem, had been dealt with, had no merit. The third Ground of Appeal, which principally alleged that the adjudicator had not taken into account the full extent of the background information before him, likewise did not find favour with the Tribunal. [13] The fourth Ground of Appeal was dealt with by the Tribunal in paragraphs 30 and 31 of its reasons, and those paragraphs are in the following terms:"30. Ground 4 of the grounds of appeal contains criticisms of the adjudicator's approach to the use of a forged French passport, and the extract relating to the appellant's sentence of death. It is noted that it is not uncommon for those seeking asylum to use forged documentation in order to effect their escape from the country from which they are in flight. We consider that the point, which the adjudicator was making, was a different one. He had mentioned in paragraph 36 of the determination that the appellant was a person with a history of using false documents. In this connection he referred to the appellant using the false passport in the context of trying to leave (that is to say not to enter, or to effect an entry) the United Kingdom. In this respect we consider the adjudicator has drawn a proper and reasoned distinction with some one who might be using forged documentation to enter the United Kingdom.
31. We have had the benefit of having had produced to us an original document which was said to have been sent from the appellant's father in Algeria, by post. This document again bears to show the court convictions against the appellant, which were relevant to the issues under consideration. The adjudicator had rejected as authentic the faxed document which he had seen, because he did not believe that the appellant's father could get such a document as that which had been sent by fax, since he was said not to be able to send it by post. The document, which we have seen, is in the form of a pro forma, produced by duplication or Roneo machine, which has been completed in manuscript. It was suggested at the hearing that this document may have been completed by the appellant's father so far as relating to the heading which contained the relevant details of the name of the appellant, his date of birth, his residence, his occupation and his civil status. The rest of the document bears to have been completed by another person, namely someone in the official registry, and bears what is said to be the official stamp of the Office of issue. The adjudicator had rejected as authentic the faxed document before him. We have some reservations over the document produced to us. This is specifically because the document appears to contain ex facie errors with regard to the spelling of the phrase 'Manifistation oposante du regime'. In this phrase, 'manifistation', and 'oposante', are both apparently mis-spelt. The correct versions, which would have been expected, are respectively: 'Manifestation', and 'opposante'. Given these ex facie errors, we have grave reservations over the authenticity of this document. Accordingly, we do not see that this produces satisfactory documentary evidence of a death sentence imposed in absentia against the appellant."
(1) that the Tribunal did not take into account the objective supporting evidence[16] Submissions on all these grounds were made to us by counsel for the appellant and counsel for the respondent but, in the particular circumstances of this case, we only need to deal with Grounds of Appeal (1) and (4). [17] Counsel for the appellant pointed out that an appeal against the decision of the Immigration Appeal Tribunal lay only on a question of law material to their determination (Immigration and Asylum Act 1999, Schedule 4, paragraph 23(1)). It was submitted that the Tribunal had not taken the correct legal approach to the appeal before them. In terms of paragraph 22(2) of Schedule 4 the Tribunal could affirm the decision of the adjudicator or make any other determination which the adjudicator could have made. Accordingly, the Tribunal were empowered to consider a case de novo (R. v. Immigration Appeal Tribunal ex parte Zaman, [1982] Imm. A.R. 61 at page 62 and Hanif v. Secretary of State for the Home Department 1999 S.C. 337). In this case there were errors in the determination of the adjudicator which were not de minimis and not considered de novo by the Tribunal. In particular, the Tribunal had not given proper consideration to the new evidence which was before them. [18] So far as the medical evidence was concerned, the report by Dr. McGivern had been before the adjudicator, and counsel accepted that the report was scant and not very persuasive. The adjudicator had given no weight to it. Counsel could not criticise the adjudicator's finding in relation to that report, but the report by Dr. von Kaehne was before the Tribunal and it was in a quite different category. He was experienced in examining alleged victims of torture, and the report set out the appellant's account of the torture to which he had been subjected and the injuries which were found on examination. Dr. von Kaehne's report was, it was submitted, a good objective report and it noted that certain of the scars found on the appellant's body were of no relevance to the present application. However, many of the others were consistent with his account of having been tortured. It was submitted that Dr. von Kaehne's report had, in effect, remedied all the defects apparent in the original medical report. It was also extremely important in relation to the assessment of the appellant's credibility, particularly having regard to the fact that the adjudicator stated that he had not been impressed by the appellant as a witness. However, counsel submitted that the Tribunal had made no attempt to evaluate Dr. von Kaehne's report and, indeed, had effectively ignored it. In that respect the Tribunal had erred in law. [19] Turning to the second piece of new evidence which was before the Tribunal, counsel stated that the adjudicator had before him a faxed extract of the conviction relating to the death sentence which had allegedly been passed on the appellant in Algeria, but he had not been prepared to accept it as authentic. However, there had been produced to the Tribunal the extract which had been posted from Algeria, together with the envelope which had contained it. On the document there were three entries. The first (for which he had been sentenced to a fine) related to a conviction in 1988 when the appellant was 14 years of age. The second entry (which was for the crime "Demonstration against the regime" and for which he had been sentenced to a suspended prison term and to a fine) coincided with his allegation that he had been beaten by the police after a demonstration in 1991. The third entry showed that he had been sentenced to death in absentia for terrorism. In relation to the death sentence he did not know on what evidence the charge of terrorism had been based. However, the new document was dated and stamped and was prima facie genuine, and it should have been given the most anxious scrutiny (Bugdaycay v. Secretary of State for the Home Department [1987] AC 514 per Lord Bridge of Harwich at page 531). The adjudicator had refused to accept the extract which was before him as authentic as no original had been produced and the appellant had a history of using false documents. With regard to the new extract before the Tribunal, they had said that they had grave reservations about its authenticity as it appeared to contain certain spelling errors, and observed that they did not see that it was satisfactory documentary evidence of a death sentence imposed on the appellant in absentia. Counsel submitted that the adjudicator had erred in refusing to accept the extract which was before him as authentic. In any event, the Tribunal had certainly erred in their reasons for regarding the new document as unsatisfactory evidence that the appellant had been sentenced to death. The document was an original and it had been posted from Algeria. The Tribunal simply noted that the adjudicator had rejected the original extract, but did not consider whether he had been justified in rejecting it for the reasons which he had given. Further, instead of giving the new document the anxious scrutiny which it deserved, the Tribunal had dealt with in a cursory manner. The alleged mis-spelling was a flimsy reason for not accepting it as genuine. For example, it could well be that the official who filled it in had not had full command of written French. The Tribunal had been wrong to dismiss it because of minor spelling errors. If the document was genuine and there was an outstanding death sentence against the appellant, it was clearly material to the issue before the Tribunal. On the whole matter counsel for the appellant invited us to allow the appeal and to remit the case to a differently constituted Immigration Appeal Tribunal to address the matters which the Tribunal had not addressed at all, or had not sufficiently or correctly addressed, to enable the case to be considered de novo. [20] Counsel for the respondent, the Secretary of State for the Home Department, invited us to refuse the appeal as no error of law on the part of the Tribunal material to their determination had been established. He submitted that an error of law on the part of the Tribunal was not of itself enough to entitle the court to interfere. It was not necessary for an Immigration Appeal Tribunal to consider every appeal de novo. If the adjudicator's decision contained no material error, it was open to the Tribunal simply to affirm the determination. However, it was accepted that in the present case two pieces of additional evidence had been produced before the Tribunal which had not been considered by the adjudicator. But the fact that new evidence had been placed before the Tribunal did not mean that the Tribunal had to look at the whole case de novo. In the present case the new evidence which had been submitted to the Tribunal on behalf of the appellant was not material to the asylum appeal (Hanif v. Secretary of State for the Home Department, supra). [21] With regard to Dr. von Kaehne's medical report, counsel accepted that the report had been produced to the Tribunal and had been referred to by both parties, and conceded that it would clearly have been better if the Tribunal had referred to it in the reasons for their decision. However, it was submitted that the failure by the Tribunal to draw any conclusion in relation to the report was not fatal to their determination. Dr. von Kaehne had examined the appellant's injuries and expressed an opinion as to his credibility. The adjudicator had refused the appeal on the grounds (1) that he was not impressed by the appellant as a witness whom he had seen and heard; (2) the improbable nature of his story of being pursued by the GIA and the PCO at the same time; (3) the use of a false French passport and (4) the lack of authenticity of documents produced by the appellant. In the circumstances counsel submitted that Dr. von Kaehne's report was not relevant to the question of the appellant's credibility. In any event, the fact that the appellant may have been tortured did not mean that he was entitled to asylum. [22] So far as the documentation relating to the alleged death sentence passed on the appellant was concerned, the appellant had claimed that he had been persecuted by the government-backed PCO and by the GIA. In the circumstances of this case it was submitted that there was no real evidence to link the death penalty conviction with the appellant's claim for asylum. The adjudicator had rejected the original extract as not authentic, and there had been no objective evidence that journalists had been targeted. Counsel conceded that the Tribunal's finding in relation to the minor spelling errors was not a rational reason for concluding that the new document was not genuine. In the circumstances it was accepted on behalf of the respondent that the Tribunal had been in error in the way they had treated the new document, but it was contended that it had not been an error of law material to their determination.contained in Dr. von Kaehne's report;
(2) that the Tribunal gave no weight to the documents relating to Mr. Hichem's
asylum claim;
(3) that the Tribunal had not properly considered the submissions made on behalf
of the appellant that his credibility should not be adversely affected because of his possession of a false passport;
(4) that the Tribunal had erred in rejecting the new document relating to the death
sentence passed on the appellant as having no value;
(5) that the Tribunal had not addressed the material point made to them about the
way the adjudicator had dealt with the issue of the appellant's credibility; and
(6) that the Tribunal had not properly addressed the submission made to them
about the lack of any indication in the adjudicator's determination that he gave proper consideration to all of the relevant background information before him.
Decision
[23] As we indicated earlier, we are able to decide this appeal by considering two of the grounds of appeal submitted on behalf of the appellant, being those relating to Dr. von Kaehne's medical report and the new documentation relating to the death sentence allegedly passed on the appellant in absentia. [24] So far as the medical report is concerned, we note at the outset that the adjudicator stated that, having seen and heard the appellant give evidence, he was not impressed by him as a witness. The appellant had alleged that he had been shot and had later been tortured during a period of three weeks when he was in the hands of the PCO. The adjudicator took the view that Dr. McGivern's letter of 8 February 1999 was not useful or reliable and, in particular, that she had no experience in the treatment of torture victims. That was a view which the adjudicator was clearly entitled to take in view of the brief nature of that letter. However, the medical report by Dr. von Kaehne was, in our opinion, in a quite different category. He was stated to have had extensive experience of examining alleged torture victims. His qualifications and expertise were not apparently challenged by the respondent. He set out in detail the evidence of injuries which he found on examination of the appellant, injuries which were consistent with the account which he had given and in particular with that of having been subjected to torture by electrical burning. Other medical findings made by him were also consistent with the history given by the appellant. While the Tribunal narrated the findings which the adjudicator had made in relation to Dr. McGivern's report, they did not make any mention of Dr. von Kaehne's report in the reasons for their decision. They made no attempt to evaluate the report or consider what effect it might have on the appellant's credibility. It is clearly recognised that particular care has to be taken in assessing credibility (Daljit Singh v. Secretary of State for the Home Department 2000 S.C. 219). In the present case that was important in view of the fact that the adjudicator had simply stated that he was not impressed by the appellant as a witness, without going into any significant detail as to why he had taken that view. Although the adjudicator does not expressly say so, the implication of his decision is that he did not believe the appellant's account that he had been tortured. In our opinion the report by Dr. von Kaehne was capable of having a significant bearing on the assessment of the appellant's credibility, but the Tribunal failed to deal with, or evaluate, the report and its potential significance. In that respect we are satisfied that they erred in their approach to Dr. von Kaehne's report and its relationship to the evidence given by the appellant. [25] Turning to the evidence relating to the death sentence allegedly passed on the appellant in Algeria in 1999 in his absence, the adjudicator rejected the original document, which was produced on behalf of the appellant and had apparently been faxed to him by his father, on the ground that it was not an original, and was tendered by a person with a history of using false documents, including the French passport. Before the Tribunal the appellant produced an original document which was said to have been posted from Algeria. The Tribunal noted that the document, which contains an entry to the effect that the appellant was sentenced to death in his absence on 13 February 1999 for terrorism, bore to have been completed by someone in the official registry and also bore what was said to be the official stamp of the office of issue. The Tribunal then stated that they had "some reservations" about the authenticity of the document as it appeared to contain spelling errors, and they did not see how it produced satisfactory evidence of a death sentence imposed in absentia on the appellant. Counsel for the respondent conceded that the Tribunal's finding related to minor spelling errors and that that was not a rational reason for rejecting the document, and we consider that that concession was rightly made. Counsel submitted that the Tribunal's error in that respect had not been a material error of law. In our opinion, however, the issue as to the authenticity of the new extract was capable of having a material bearing on the assessment of the appellant's credibility and, indeed, on the merits of his application for asylum. In particular, it potentially bore on whether the appellant had, as he maintained, been the subject of adverse attention by the Algerian state. [26] On the whole matter we have reached the conclusion that the Tribunal erred in their approach, individually and cumulatively, to Dr. von Kaehne's report and the new extract relating to the death sentence allegedly imposed on the appellant. These were, in our opinion, errors of law which were material to the determination made by the Tribunal. We shall therefore allow the appeal and remit the case to a differently constituted Immigration Appeal Tribunal for consideration of the appeal against the adjudicator's determination.