Case No: C/2001/1631
Neutral Citation Number: [2002] EWCA Civ 173
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE ADMINISTRATIVE COURT
(Turner J.) 
Royal Courts of Justice
Strand, 
London, WC2A 2LL

Thursday 14th February 2002
B e f o r e :

LORD JUSTICE SCHIEMANN
LORD JUSTICE CHADWICK
and 
SIR MURRAY STUART-SMITH

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	SECRETARY OF STATE FOR THE HOME DEPARTMENT 	Appellant	
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	BALASINGHAM MAHESHWARAN	Respondent	

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(Transcript of the Handed Down Judgment of
Smith Bernal Reporting Limited, 190 Fleet Street
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Julie ANDERSON (instructed by Treasury Solicitor for the Appellant)
Michael MURPHY and Mark O’CONNOR (Instructed by Ranjit & Co Solicitors for the Respondent)

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Judgment
As Approved by the Court

Crown Copyright ©

Lord Justice Schiemann: 
1.	This is the Judgment of the court. This is an appeal from a Judgment of Turner J. who quashed determinations of an adjudicator and of the Immigration Appeal Tribunal. The case is concerned with fairness in proceedings before an adjudicator in an immigration appeal. We understand that there has been an increasing reliance by those acting for claimants in immigration appeals on some words uttered by that judge in the course of granting an application for permission to apply for judicial review in R v Immigration Appeal Tribunal ex parte Gunn (unreported 22.1.1998) :
“It is an elementary aspect of fairness that if a Court or Tribunal is to reject on the basis of lack of truth an allegation, then there should be a specific challenge in the first place and secondly, on a reasons basis, adequate reasons should be given in the face of that forensic challenge why it has or has not succeeded.”
2.	Relying in part on those words, it was and is submitted on behalf of the claimant in the present case that if the Home Secretary does not challenge an assertion of fact made by a claimant before an adjudicator and the adjudicator does not raise with the claimant doubts about the veracity of his assertion, the adjudicator is bound to accept that assertion as proved if not to do so may be material to his determination. In our Judgment that submission is far too broadly framed. Miss Julie Anderson, who appears on behalf of the Home Secretary asks this court to reject it as one to be rigidly applied to all situations. She is right to do so. 
3.	Those who make a claim for asylum must show that they are refugees. The burden of proof is on them. Whether or not a claimant is to be believed is frequently very important. He will assert very many facts in relation to events far away most of which no one before the adjudicator is in a position to corroborate or refute. Material is often adduced at the last minute without warning. From time to time the claimant or the Home Secretary are neither there nor represented and yet the adjudicator carries on with his task. He frequently has several cases listed in front of him on the same day. For one reason or another not every hearing will be effective. Adjudicators can not be expected to be alive to every possible nuance of a case before the oral hearing, if there is one, starts. Adjudicators in general will reserve their determinations for later delivery. They will ponder what has been said and what has not been said, both before the hearing and at the hearing. They will look carefully at the documents which have been produced. Points will sometimes assume a greater importance than they appeared to have before the hearing began or in its earlier stages. Adjudicators will in general rightly be cautious about intervening lest it be said that they have leaped into the forensic arena and lest an appearance of bias is given. 
4.	Undoubtedly a failure to put to a party to litigation a point which is decided against him can be grossly unfair and lead to injustice. He must have a proper opportunity to deal with the point. Adjudicators must bear this in mind. Where a point is expressly conceded by one party it will usually be unfair to decide the case against the other party on the basis that the concession was wrongly made, unless the tribunal indicates that it is minded to take that course. Cases can occur when fairness will require the reopening of an appeal because some point of significance – perhaps arising out of a post hearing decision of the higher courts – requires it. However, such cases will be rare. 
5.	Where much depends on the credibility of a party and when that party makes several inconsistent statements which are before the decision maker, that party manifestly has a forensic problem. Some will choose to confront the inconsistencies straight on and make evidential or forensic submissions on them. Others will  hope that ‘least said, soonest mended’ and consider that forensic concentration on the point will only make matters worse and that it would be better to try and switch the tribunal’s attention to some other aspect of the case. Undoubtedly it is open to the tribunal expressly to put a particular inconsistency to a witness because it considers that the witness may not be alerted to the point or because it fears that it may have perceived something as inconsistent with an earlier answer which in truth is not inconsistent. Fairness may in some circumstances require this to be done but this will not be the usual case. Usually the tribunal, particularly if the party is represented, will remain silent and see how the case unfolds. 
6.	The requirements of fairness are very much conditioned by the facts of each case.  This has been stressed in innumerable decisions – see the many citations to this effect in Rees v Crane [1994] 2 A.C.173.  We have no doubt that the claimant’s submission is framed in terms which are far too wide and in words which are not to be rigidly applied to every situation. Whether a particular course is consistent with fairness is essentially an intuitive Judgment which is to be made in the light of all the circumstances of a particular case – see R v Secretary of State for the Home Department, ex parte Doody [1994] 1 A.C. 531 per Lord Mustill at p.560D. We turn therefore to the facts of the present case.
7.	Mr Maheshwaran applied for asylum.  This was refused by the Home Secretary.  Mr Maheshwaran’s appeal to the Adjudicator was dismissed.  The Immigration Appeal Tribunal refused Mr Maheshwaran leave to appeal. He challenged the legality of that refusal by way of  judicial review. That challenge succeeded before Turner J.  Now the Home Secretary appeals to this Court.

8.	There is a preliminary procedural point which is not contentious.  Although Mr Maheshwaran’s application for judicial review had as its respondent the Home Secretary and sought relief both in respect of the determination of the Adjudicator and the determination of the Tribunal, the relief sought should have been solely in respect of the determination of the Tribunal and that should have been the respondent.  The Order of Turner J. purports to quash the Adjudicator’s determination.  Normally the only determination which is subject to being quashed in a case such as this is the determination of the Tribunal.  Sometimes cases occur where all parties agree that the determination of the Adjudicator should also be quashed.  In the absence of such an agreement it will normally be right to quash the decision of the Tribunal and remit the case to it thus leaving the future conduct of the case in the hands of the Tribunal.

9.	That however is only a formal point.  As a matter of substance what we are primarily concerned with is the quality of the determination of the Adjudicator.  Turner J. regarded this as falling below the proper standard required by law.  He did so on two grounds.  The first relates to the approach adopted by the Adjudicator to evidence adduced by the appellant in relation to his sister.  The second related to the logical coherence of the Adjudicator’s determination and the quality of his reasoning.

10.	The determination of the Adjudicator follows the normal format.  Paragraphs 1 – 7 set out the details of Mr Maheshwaran’s arrival in the United Kingdom, his interview in relation to his asylum application, the Home Secretary’s refusal letter, the Notice of Appeal and the material which was before the Adjudicator.  Paragraphs 8 – 12 deal with the claimant’s oral evidence, paragraphs 13 and 14 with cross-examination, paragraph 15 with re-examination, paragraphs 16 with questions by the Adjudicator and paragraphs 17 and 18 with submissions on behalf of the Home Secretary and on behalf of the claimant respectively.  Thereafter follows the determination of the Adjudicator.  In paragraph 19 the Adjudicator correctly instructs himself in relation to the burden and standard of proof.  His conclusions are contained in the remaining paragraphs of his determination of which we shall now set out the parts material to this appeal. We have supplied various emphases for ease of reference later in this Judgment.

“[20]	Credibility is a key issue in this appeal.  In assessing the appellant’s evidence I have taken into account his obvious frightened state and the report by his GP that the appellant suffers from a lack of self-confidence as well as flash-backs and nightmares....  Whilst it is correct that the appellant did at the beginning of his asylum interview state that he sometimes made mistakes because his memory was poor, I am still not able to accept that this in itself would explain all the serious weaknesses in his evidence.  While I am able to accept certain parts of his account as being reasonably likely to have occurred, I am satisfied that the appellant has substantially embellished and exaggerated his claim so as to justify his decision to leave his village near Mullaittivu even though he was not at that time under any particular pressure to do so.  I shall explain my reasons for reaching that conclusion in the following paragraphs.

[21]	The appellant also claimed that in [1996] his sister had joined the LTTE.  He has put forward no really satisfactory reason to explain that decision or been able to say precisely what she did  for the movement.  This is a point on which I am unable to make a firm finding of fact.  I also accept that the appellant was a very small trader using his bicycle to travel to Vavuniya and from there to bring back small quantities of goods which were then sold in the local shops.  It is clear that this was the appellant’s main occupation and had he been seriously suspected by the Sri Lankan authorities of having supported the LTTE by providing them with goods, then it is reasonable to assume that he would have been arrested at an earlier stage and possibly more frequently.  I am therefore satisfied that since the appellant had a business pass he was known to the authorities and not considered by them to be a serious security threat. But this does not, of course necessarily mean that he was not stopped by the army on one occasion as he has claimed.

[22].	.... I am  prepared to accept, applying the lower standard of proof, that the appellant was arrested on two occasions as he claimed both during his asylum interview and at the hearings......

[23].	The real question in this appeal is whether the appellant was suspected by the authorities of supporting the LTTE and, if so, whether they had a serious interest in him at the time he left his village.....  There are such serious inconsistencies between the answers given by the appellant at interview and what he said at the hearing that I am unable to accept – even to the lower standard of proof – that he was twice arrested, released each time on bail and during the second brief period of detention so seriously ill-treated that he had to have a comparatively major operation in hospital.  I am, however, able to find that the appellant was arrested and held for one day in 1996.  I am also prepared to accept that he was again arrested sometime in 1997.  I find it significant that by his own admission he appears not to have been questioned about his sister whom (sic) he claimed had the  previous year joined the LTTE.  This therefore means that at the time of that second arrest the only ground on which he appears to have been stopped was because he was carrying goods on his bicycle back to Mullaittivu.  I have serious doubts about the extent to which he was ill-treated.  His account of how he was badly beaten on the day of his arrest and a vein was severed so that he required surgery at the hospital to which he was taken by the Army does not square either with what he said at interview or with the Doctor’s report.  At the hearing when questioned, he admitted that he did not know how long he had been in the hands of the Army whereas at interview he claimed that he had been detained specifically for 5 days.  He sought to explain this by saying that he was making up answers during his interview.  If that really were the case, it is difficult to see what reliance can be placed on any of his evidence.  I accept the medical report as substantially correct.  This clearly states that as a result of being beaten a wound on his leg subsequently became septic and he later required a skin and bone graft.  This is simply not consistent with the appellant’s own account of his injury.  I therefore disregard that.  This means that the appellant was not, as he has claimed so severely beaten that he lost consciousness and that he was then immediately taken to the hospital by the Army.  I can make no finding as to precisely what did  happen to him or for how long he was detained at Vavuniya.  But he appears only to have been stopped on suspicion of supplying goods to the LTTE.

[24]	I am unable to accept the claim put forward by the appellant for the first time at the hearing that he was released on each occasion after a payment of a bribe and that after the second detention he was required to report back to the Army one month later.  I can find no valid reason why the appellant should not have mentioned that during his interview.  But even if there was such a condition imposed after his release, his account of what happened simply made no sense.  He said that he had gone home to his village and that he had not reported as required.  By the time that the Army came to look for him, he had already left and gone to Colombo.  Given the timing of these events, I cannot believe that account.  He admitted that he spent more than three months in his own village before leaving.  It is therefore to be expected that the Army would have started to look for him shortly after the date that he failed to return and report.  This would have been after one month.  When this was put to the appellant he then suggested that he had been in hiding in his village and that his father had in fact told him that the Army were looking for him.  I believe that answer to have been fabricated.  I also note that initially at the hearing the appellant explained that things had become more difficult after his release because of the pressure put on him by the LTTE to join them.  Yet at interview he had said that it was in Jaffna that he had been pressured to join the LTTE.  Finally, asked to reconcile these wide differences, the appellant said that it was LTTE in  Mullaittivu who knew that the Army had been looking for him and had therefore suggested that he should join them.  I cannot accept that these discrepancies and inconsistencies are the result of any weakness in the appellant’s memory.  I am satisfied that he has substantially embellished his claim and I am unable to accept any part of his account of what happened to him after his second brief detention at Vavuniya.  It follows from this that the appellant simply decided that life in Mullaittivu was too difficult and he therefore sought to leave the country.  I find it significant that his elder brother had come to this country just one year earlier.  It is reasonable to assume that the appellant believed that it would be better for him to join him there.  I therefore find that the appellant was not actively being looked for by the authorities at the time that he left Sri Lanka.  If he did have a fear of persecution at that time it was not on account of his own previous record or indeed of his sister’s possible involvement with the LTTE but rather his circumstances as a young Tamil male caught up in the tension and conflict in his part of the Sri Lanka.  In this respect his situation was no different from that of any other young Tamil at the time.

[25].	The question I now have to answer is whether there is any reasonable likelihood that the appellant would be persecuted for a Convention reason if he had today to return to his own country.....  I can find little in the documents put before me to show that someone with the record of the appellant, including any possible connection between the LTTE and his sister, would today face a serious possibility of being persecuted in or around Mullaittivu.  
[26]	... In reality he would first be returned to the airport at Colombo and ... he would then be required to make his way to his own area....  It is necessary for me to consider what treatment the appellant might expect on his arrival.  It was argued on his behalf ...... that in view of his sister’s membership of the LTTE and the appellant’s two earlier arrests, the authorities would have an adverse interest in him and that he would therefore be detained on return for the normal identification checks.  These would reveal his record and he would then be at risk of being detained for a longer period with a consequent threat of torture.  I cannot accept that. Although the appellant would, like other young Tamils of his age, be liable to be rounded up for identification checks particularly following any incident in the capital, there is no reason on the basis of his record, as I have found it to have been, that he would be the subject of any special suspicion or be liable to be held for an extended period....

[28]	Taking the evidence as a whole I do not consider that the appellant was either a credible witness or that he left the country because at the time he was being actively pursued by the Sri Lankan authorities.  There is  nothing in his record to show that he would today be of any greater adverse interest than any other young Tamil currently living in Colombo. 
11.	It can be seen from the foregoing that the adjudicator came to the following conclusions. Where appropriate, we have put paragraph references in brackets. 
i)	The mere fact that Mr Maheshwaran is a young Tamil is not enough to give rise to a well founded fear that he would be persecuted for a Convention reason in either Colombo or his village. The contrary had not, so far as can be seen from the determination, been suggested.
ii)	Mr Maheshwaran’s position was no different from that of any other young Tamil male (24, 28).
iii)	Mr Maheshwaran had been arrested once in 1996 and once in 1997 (23).
iv)	At the time of the second arrest he was not questioned about his sister, nor was he arrested because of his connection with his sister (23, 24).
v)	His account of what happened to him at the hands of the authorities after the second arrest was not worthy of belief (23).
vi)	His assertion that he was released after each arrest after payment of a bribe was not accepted (24).
vii)	His account of why he left his village was not accepted (24). 
viii)	He was not considered by the authorities in Sri Lanka to be a serious security threat (21).
ix)	When he left the country the authorities were not actively looking for him (24).
x)	He had substantially embellished and exaggerated his claim (20, 24). There were serious inconsistencies between answers given at interview and at the hearing (20,23)
xi)	Someone with the record of the appellant as found by the adjudicator, including any possible connection between the LTTE and his sister, would not face a serious possibility of being persecuted either in his village or in Colombo (25, 26) 
12.	So far as the sister is concerned, the adjudicator came to the following conclusions
i)	He could not make a finding of fact as to whether the sister had joined the LTTE (21);
ii)	Mr Maheshwaran had not been questioned about the sister when he was arrested (23);
iii)	Even assuming a connection between the sister and the LTTE there was no serious possibility of him being exposed to persecution for a Convention reason (25,26).
13.	Mr Maheshwaran appealed to the Immigration Appeal Tribunal from the adjudicator asserting that his findings were inconsistent or equivocal, that he had approached the question of the appellant’s sister in an incorrect manner and that he had not considered the documentary evidence as to what happens to failed asylum seekers on their return to Sri Lanka.
14.	These contentions were rejected by M.W. Rapinet, vice president of the Tribunal and he refused permission to appeal. 
15.	The application for judicial review which succeeded before Turner J. was made on the following grounds
i)	There had not been a fair hearing in relation to the  points which concerned the sister;
ii)	The adjudicator’s findings were confused and contradictory;
iii)	The returned asylum seekers point had not been properly dealt with.
16.	The judge did not deal with the returned asylum seekers point and it has not been mentioned in front of us. We need say nothing about it. The judge did however find in Mr Maheshwaran’s favour on the other two points. It is they which have given rise to this appeal by the Home Secretary who seeks to defend the way in which the adjudicator dealt with each of them. We look at them in turn.
The sister point. 
17.	The judge started from the premise that neither the adjudicator nor the representative of the Home Secretary had questioned the appellant’s assertions in relation to his sister. That premise is not disputed in front of us.
18.	The judge came to the conclusion that the sentence in paragraph 21 of the determination - to the effect that Mr Maheshwaran had put forward no satisfactory reason to explain his sister’s decision to join the LTTE and had not been able to say precisely what she did for the movement – was “a prelude to an adverse credibility finding”. By this we assume he meant that it was one of the bases upon which the adjudicator came to the conclusion that Mr Maheshwaran was not to be believed. Having come to that conclusion he apparently accepted the contention that this amounted to unfair conduct on the part of the adjudicator.
19.	We consider that the judge erred in concluding that the sentence in question was a basis for the finding by the adjudicator that Mr Maheshwaran was not to be believed. The sentence which immediately follows it in paragraph 21 runs – “This is a point on which I am unable to make a firm finding of fact.” In paragraph 25 of his determination the adjudicator has the phrase “including any possible connection between the LTTE and his sister”. This indicates that he is judging the likelihood of persecution on the basis that  the authorities might suspect the claimant’s sister of involvement with the LTTE and would know of the fact of his relationship. The remaining paragraphs of the determination reveal a number of reasons why the adjudicator did not believe all of what Maheshwaran had said to him and we can see no reason to suppose that the adjudicator was not entitled to come to that view on the basis of those other matters. In those circumstances, there is in our judgment no basis for the conclusion by the judge that the adjudicator based his finding that Mr Maheshwaran was not to be believed even in part on the adjudicator’s scepticism about Mr Maheshwaran’s evidence in relation to his sister.
Is the determination confused and contradictory?
20.	The judge considered that it was far from clear that the adjudicator had identified what were the true issues for his determination. The judge’s concern was based on the passages which we have italicised in paragraphs 20, 23 and 25. We do not consider that this criticism is justified. It seems to us that the adjudicator, having reminded himself of the burden of proof in paragraph 19, was asking himself whether the claimant had discharged it. There was no evidence of primary fact apart from that of the claimant. Therefore his credibility was a key issue. The adjudicator clearly took the view that if he had been persuaded that the claimant, at the time when he left his village, was of serious interest to the authorities because they suspected him of supporting the LTTE, then he would have regarded the claimant’s assertion that he was a refugee as made out. We see nothing inconsistent in the three italicised passages.
21.	The judge was concerned in relation to the passage underlined in paragraph 21 of the determination. He said it was not apparent to him how the adjudicator had arrived at the conclusion that had the claimant been of interest to the authorities he would have been arrested at an earlier stage. Everything would depend on the stage at which the authorities became aware of the claimant’s activities. There is some force in that point. 
22.	The judge considered that there was some inconsistency between the acceptance by the adjudicator in paragraph 22 that the claimant had been arrested on two occasions and the adjudicator’s assertion at the end of paragraph 21 that the claimant claimed to have been stopped on one occasion.  Although we understand the basis of the judge’s concern, we do not share it. It is quite clear from the adjudicator’s recital of the claimant’s case and from the paragraphs which we have cited that the adjudicator was well aware of the claimant’s assertion that he had been stopped twice and indeed accepted it. The sentence seems to form no part of the adjudicator’s reasoning and to contain a slip of no significance.
23.	The judge was concerned that there was an inconsistency between the passage immediately following the italicised sentence in paragraph 23 and the adjudicator’s acceptance that the claimant had been arrested twice. Rather than find an inconsistency it seems a more natural interpretation of the determination as a whole and of this paragraph to regard it as saying that the adjudicator, whilst accepting the fact of two arrests, was not accepting the accounts as to what happened by way of ill treatment.
24.	The judge was concerned with the way the adjudicator had treated the medical evidence. That evidence consisted of a letter from a GP dated 11.04.99. It reads so far as relevant
“Mr Maheswaran was seen and examined by me on 4.3.99. He gave me the following history. He told me he was beaten up by the army during 1997 in Sri Lanka and sustained an injury in his right leg. This subsequently got septic and he underwent a skin and bone graft. There is a prominent big scar with considerable swelling of the right leg. ”
25.	As evidence of medical fact this goes no further than that the doctor observed a scar and a swelling and perhaps that a skin graft had taken place. 
26.	The adjudicator was undoubtedly influenced by what he saw as inconsistencies in the claimant’s own story in relation to what had happened to him, on the occasion of the second arrest. At interview he said he had been detained for 5 days during which he was tortured and that he had been taken to hospital from his place of detention and surgery had taken place and he was then released. The note from his doctor rather implies that the leg went septic after the alleged beating. At the hearing he was cross-examined and the progress of this is recorded in the determination in paragraph 13 as follows.
“Asked about his injury whilst in custody, he said that a vein in his right leg had snapped and he had at once been taken to hospital. He had spent three weeks there. Asked about his treatment, he replied that the surgeon had had to cut his thigh and replace his vein. This had been done the day after admission. Put to the applicant that the medical report referred to an injury which had gone septic and had then required a skin and bone graft rather than such an immediate operation as described by the appellant himself, he said his leg had been bandaged on the first day and the operation had been carried out on the next day.”
27.	The adjudicator was concerned to probe this further and records what took place after re-examination.
“On completion of the appellant’s evidence I asked him about his second arrest at Vavuniya. He had been stopped at the check point after picking up goods on his bicycle to take back to his village. After about three hours he had been taken to the army camp where he was held and tortured until his leg was injured. The injury had been inflicted on him on the same day that he was picked up. As a result of this he had lost consciousness and so had not known when he had been taken to hospital. I reminded the appellant that he had said in interview that he had been detained five days. He told me that he was not sure how long he had been held. On his arrival here he had been disturbed and confused. Because of his memory problems he must have given wrong answers. Some of them had been just guesswork.”
28.	Then judge expressed his concern in this way in paragraph 24 of his judgment. We have inserted the numbering.
“1. It has never been in issue that the appellant suffered the injury otherwise than at the hands of the army, therefore the army were interested in  him in some respect. 2. It certainly does not follow that because a claimant has given accounts in answer to the asylum interview or during the course of the asylum interview and during the course of his evidence before the Adjudicator, accounts which differ to some extent, [sc this] means that his evidence should radically be discounted by the Adjudicator as he did. ”
29.	As to the first of these points Miss Anderson submitted, in our view correctly, that it is clear from the determination and its record of the submissions that the credibility of the claimant was in issue. The Home Secretary was in no position to lead evidence to contradict the claimant’s account but it does not follow that he accepted that the injury had been suffered at the hands of the army.
30.	As to the second, in our view the judge in his commendable endeavour to do justice in this vexed field fell into the temptation to which Lord Bingham MR drew attention in Sahota v Immigration Appeal Tribunal [1995] Imm AR 500 at p.506
“The present field is one in which it is tempting for the court to stray into taking its own view of the facts. That is a temptation which the court must resist.”
31.	We agree with the judge that it does not follow that because there have been inconsistencies between what was said in a claimant’s interview and in his evidence or in different parts of his evidence the claimant’s evidence should be radically discounted by the adjudicator. What he makes of those discrepancies is a matter for the adjudicator in each case. In the present case, judging simply by what is contained in his determination, we see room for the view that the adjudicator gave more weight to the discrepancies than others might have done. However the decision as to whether to give permission to appeal is one for the Immigration Appeal Tribunal. No error of law can in our Judgment be found in the adjudicator’s determination nor can we discover any such error in the way the Tribunal approached its task when deciding to refuse leave to appeal. 
32.	We therefore allow this appeal. 
Order: Appeal allowed; Respondents do pay Appellant’s costs both before the high court and court of appeal; such costs to be taxed if not agreed; not to be enforced without permission of the court; costs of the respondents to be taxed in accordance with community legal funding services regulations (access to justice act 1999)
(Order does not form part of the approved judgment)