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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 >> Nyapokoto, R (on the application of) v Adjudicator [2002] EWCA Civ 1554 (17 October 2002) URL: http://www.bailii.org/ew/cases/EWCA/Civ/2002/1554.html Cite as: [2002] EWCA Civ 1554

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IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
(MR JUSTICE BURTON)

		Royal Courts of Justice Strand London, WC2 Thursday, 17th October 2002

1. LORD JUSTICE TUCKEY: This is a renewed application by Ignatius Walter Nyapokoto for permission to appeal from the decision of Burton J refusing him permission to apply for judicial review of a special adjudicator's decision dismissing his appeal from the Secretary of State's refusal to grant him asylum, and upholding the Secretary of State's certificate that the asylum claim was manifestly fraudulent.
2. The effect of such a certificate is to prevent an appeal to the Immigration Appeal Tribunal. Hence the application for judicial review. In refusing permission on paper, Sedley LJ said:

"I would have given [permission to appeal] if the only issue were the 'manifestly fraudulent' finding. I am inclined to accept that this is not open on fact-findings as low-key as these, and that it is appropriate only where it is plain to the adjudicator that the applicant has set out deliberately to deceive the Home Office or the [Immigration Appellate Authority]."

I do not disagree with this view and so the hearing before me this morning has concentrated on the merits of the applicant's claim, about which Sedley LJ said:

"But I see no answer to the judge's further finding that there was no real chance of a successful appeal to the [Immigration Appeal Tribunal]. I doubt whether leave would have been given, and if it had been, I am certain the appeal would have failed with or without the further evidence."

3. The applicant is a 50-year old Zimbabwean national who arrived in the United Kingdom on 24th December 2000 and was granted leave to enter as a visitor for six months. He claimed asylum on 21st June 2001. The basis of his claim was that he was a card-carrying member of the Movement for Democratic Change ("MDC"), who oppose President Mugabe and his Zanu PF party, and that he feared persecution from members of that party and the so-called war veterans if he returned to Zimbabwe. Whilst in the United Kingdom he had learned that his wife had been threatened by war veterans and forced to flee to another part of the country.
4. The Secretary of State's refusal letter referred to discrepancies in the applicant's account which cast doubt on the veracity of his claim. He concluded that at best the applicant was a low-level member of the MDC who would be of no interest to Zanu PF or the war veterans.
5. The special adjudicator found that the applicant had been a member of the MDC since December 1999, and had then become involved as a party member in local elections. In June 2000, just before the general election, he had been detained by the police for two days with a number of other MDC supporters in order, as he was told, to prevent violence. He had sustained a few minor injuries at this time.
6. After the election he moved house and, as the special adjudicator found, during the period from August to December 2000 nothing happened to him. The special adjudicator continued:

"If the appellant was in fear of persecution for a Convention reason, he would have left Zimbabwe much earlier than he did and would have applied for asylum immediately upon his arrival here. He is in contact with his wife in Zimbabwe. I find he is of no interest to the authorities including the war veterans. He was able to leave Zimbabwe through the normal immigration channels, using his own passport. I find that he is of no interest to the Zanu PF because [of] his low level position in the MDC. I find that he is able to return to Zimbabwe and to continue his family life."

7. In his judgment Burton J records the concession made by counsel then appearing for the applicant that:

"... if [the applicant] were to be successful on the certificate point and yet I were not satisfied that there was a real prospect of success in an application for leave to appeal to the Immigration Appeal Tribunal, I would not in my discretion grant permission to apply, and thus what one might call the merits of the case require to be considered ... in any event."

8. The attack on the special adjudicator before the judge appears to have been that he had given inadequate reasons for his decision. Adequate reasons would have demonstrated its irrationality. Counsel complained that there was evidence from the applicant that things had happened to him between August and December 2000, and that the finding that he would be of no interest to the authorities or the war veterans was unjustified.
9. The judge rejected these complaints, saying that the special adjudicator had clearly rejected the applicant's evidence about what had happen between August and December and had found that he had embellished his evidence to substantiate his asylum claim which would not have been made shortly before he had to leave the United Kingdom if it had been genuine. The judge therefore concluded:

"... that there was no real prospect of any appeal succeeding, even had I set aside the certificate."

10. In her skeleton argument Miss Dubicka, who now appears for the applicant, submitted that the objective evidence before the special adjudicator (and further evidence of more recent events which the applicant would wish to put before the Immigration Appeal Tribunal) and the applicant's perception of what was happening in Zimbabwe in the months before he applied for asylum made the special adjudicator's decision irrational. The applicant's explanation for his delay in applying for asylum was that when he arrived in England he believed that the situation in Zimbabwe would improve and had intended to stay only for two months. However, from the reports he read and what he learned of the treatment of his wife, he realised that his optimism was unjustified and so after seeking advice he applied for asylum. This evidence and the objective evidence of what was happening in Zimbabwe was, it was submitted, not properly taken into account by the special adjudicator. Had he done so, he could not have reached the conclusion he did.
11. As to those submissions, like Sedley LJ I would reject them. The special adjudicator refers twice to the applicant's explanation for the delay in applying for asylum. When referring to the submissions made on behalf of the applicant he says:

"The appellant has clearly set out why he left the country and the delay in claiming asylum is neither here nor there. He decided to see how the land lay. I was taken thorough the bundle submitted by the appellant setting out the objective evidence."

From the index of the documents before the special adjudicator one can see that this bundle contained about 100 pages of the material which is before this court. This material shows the sorry state in which Zimbabwe is and was in at the material time. It is clear that members of the opposition party and its supporters have been harassed and ill-treated by Zanu PF supporters and so-called war veterans. That was the position during the general election which took place in June 2000 before the applicant left Zimbabwe. From the more recent material it is clear that it is still the position today.

12. But this evidence did not it seems to me compel the special adjudicator to conclude that the applicant was at risk of persecution if he returned. That was a question of fact which he resolved against the applicant.
13. In attempting to meet Sedley LJ's rejection of the merits of the claim Miss Dubicka has this morning made two points. Firstly, she has reminded me of the more recent material, and in particular the letter from the United Nations High Commission for Refugees of 12th June 2002, which says that before the presidential election in February 2002 there was very well-publicised intimidation of the opposition and nothing has substantially changed since. There has been no abatement of violence against the opposition. It says, and this is the sentence that Miss Dubicka relies on primarily:

"Real or perceived members and supporters of the MDC or any other opposition party or movement continue to be the target of human rights violations, including ill-treatment, torture, arbitrary arrest and detention."

She submits that if the decision of the special adjudicator to uphold the certificate were to be quashed by this court, that would give the applicant the right to appeal to the IAT and this specialist tribunal with its knowledge of the situation in Zimbabwe would then be in a position to consider this more recent evidence in order to decide whether the applicant's case is well-founded.

14. Miss Dubicka's second point is that one can have no confidence in the special adjudicator's rejection of the applicant's evidence as to what happened to him between August and December 2000 because of his inadequate or flawed reasoning in dealing with and upholding the certificate.
15. Attractively and succinctly though those submissions are put, I do not accept them. It seems to me, as it seemed to Sedley LJ, that the new material really paints a picture of no change. The situation is the same as it was before the special adjudicator. As I have said, it did not compel him to reach a conclusion in favour of the applicant. His findings of fact were open to him and he found against the appellant. The fact that his decision on the certificate is open to criticism may suggest that he applied the wrong test in deciding that matter. But I do not think it follows that he was unable to assess the credibility of the applicant in the way that tribunals up and down the country have to do every day. So it does not follow that if there was something wrong with the certificate there is something wrong with his finding that nothing happened to the applicant between August and December 2000.
16. For those reasons, sympathetic though I am to the applicant's case, I do not think that there is any basis for a judicial review in this case. I agree with Sedley LJ that permission to appeal must be refused.

ORDER: Application for permission to appeal refused; detailed assessment of the claimant's Community Legal Services Funding.

(Order not part of approved judgment)