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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 >> Muya's Application for Judicial Review [2001] EWCA Civ 203 (1 February 2001) URL: http://www.bailii.org/ew/cases/EWCA/Civ/2001/203.html Cite as: [2001] EWCA Civ 203

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IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE QUEEN'S BENCH DIVISION
(Mr Justice Tucker)

		Royal Courts of Justice Strand London WC2 Thursday, 1st February 2001

Thursday, 1st February 2001

1. LORD JUSTICE KEENE: This is a renewed application for permission to appeal against a decision of Tucker J on 24th May 2000 when he refused permission to seek judicial review of a refusal by the Immigration Appeal Tribunal to grant leave to appeal against the determination of a special adjudicator. The special adjudicator had refused the applicant's claim for asylum. The applicant is a citizen of the Democratic Republic of the Congo, formerly Zaire. He applied for asylum in the United Kingdom in September 1996, claiming to have entered this country with a Zambian diplomat, Mr Kalucha, who he believed had shown a diplomatic passport to achieve the applicant's entry.
2. The applicant had been a trade union representative for 20 workers in a clinic in Kinshasa. In 1991 he was arrested for taking part in and organising a general strike in Kinshasa. He was detained for some eight days and then released on conditions, one of which was that he did not organise any further meetings or demonstrations. The special adjudicator appears to have accepted that part of his account. The applicant claimed that subsequently, in October 1994, he had been arrested again and accused of being one of the organisers of a planned trade union march. His case before the special adjudicator was that he had been kept in prison for some two and a half months and was then convicted by a court and sentenced to life imprisonment. He was, he said, then detained in a military camp for 18 months, until 2nd September 1996, when a soldier helped him to escape dressed in military uniform. Allegedly, the soldier had been asked by the applicant's sister and her fiancé, Mr Kalucha, to arrange the escape and Mr Kalucha then travelled with him by truck and train across the Congo to the Zambian border and then from Zambia by air to the United Kingdom.
3. The special adjudicator, having set out the evidence in some detail, came to the conclusion that it was inconceivable that Mr Kalucha, if he was a Zambian career diplomat, as the applicant said, would have acted in the way described, jeopardising his own career and Zambia's diplomatic relations with several countries, including the United Kingdom. For a number of reasons, including that one, he found the applicant's account of his escape and subsequent journey to be incredible. Influenced by that and by the applicant's assertion that the UNTZ Union was illegal, which was contrary to the documentary evidence, the adjudicator refused to accept that the applicant had been sentenced to life imprisonment. He concluded that the applicant had exaggerated his importance and had not shown that he met the tests for refugee status. It was noted that since his entry into the United Kingdom there had been a change of regime in the DRC and that the new regime was not hostile to trade unions.
4. The Immigration Appeal Tribunal refused leave to appeal, and Tucker J refused permission to seek judicial review. Unhappily, there is no transcript of the judgment of the court below, and one has to rely on a brief note produced by counsel some four months later. In essence it appears that the judge regarded the argument that the special adjudicator or the tribunal had been irrational in their conclusions as effectively a point which was not worthy of allowing the matter to go to full consideration.
5. On behalf of the applicant, Miss Fielden does not suggest that the special adjudicator or the Immigration Appeal Tribunal made any error of law in the tests which they applied to determine refugee status. However, it is contended today that the special adjudicator was wrong to conclude that the applicant was not credible. She accepts that it is difficult to challenge findings on credibility; but she also emphasises that it is very easy for any special adjudicator to say that a person is not credible. She seeks to emphasise the difference between drawing an inference from evidence, because that is a reasonable deduction from the evidence, and merely indulging in conjecture which amounts to little more than a mere guess. She focuses in her argument on some of the matters which influenced the special adjudicator in his finding on credibility. She points out that the applicant's description of how he escaped from the military camp was, in her words, corroborated by documentary evidence entitled "Flight into Exile", which indicated that escapes in this sort of manner did occur. Consequently, she contends that the special adjudicator was wrong to say, as he does, that there was no corroboration of the applicant's account of his escape from the camp.
6. Secondly, she focuses on the way in which the special adjudicator approached the account of how the applicant then allegedly crossed the Congo, roughly speaking from west to east but in a semi-circular way, which was one matter which the special adjudicator had noted as detracting from the applicant's credibility. Miss Fielden points out that, although that was a very long journey as compared to the brief alternative available of crossing the Congo river to Brazzaville, it needs to be borne in mind that Mr Kalucha was said to be from Zambia himself; and therefore it makes a certain degree of sense that he was seeking to convey the applicant to that country.
7. Thirdly, so far as the behaviour of the Zambian diplomat himself is concerned, it is contended that his conduct may well be understandable if he was, as it is said, engaged to the applicant's sister. She may have been putting pressure on Mr Kalucha to assist in the way in which he did and to persuade him to take the risks which he did.
8. Overall Miss Fielden contends that the special adjudicator, and hence the Immigration Appeal Tribunal, did not get the balancing act right, as she puts it, when assessing the evidence. I think, in essence, she seeks to put it in rather stronger terms, because the thrust of her argument is that the special adjudicator acted irrationally in arriving at his conclusion on credibility.
9. It is perfectly clear that the credibility of the applicant was fundamental to his claim. There were no witnesses in support of his account and no documentation to support his story, save in terms of the experiences of others. Mr Kalucha did not attend, nor did he send any communication. There was no evidence before the special adjudicator even to establish the existence of Mr Kalucha as a Zambian career diplomat. There was nothing, indeed, from the sister of the applicant to establish any engagement between her and Mr Kalucha.
10. The special adjudicator did not believe the applicant in important respects. One has to ask: was that an irrational conclusion on his part? He had to use his common sense when assessing the credibility of the applicant's account of his escape, having heard the applicant give oral evidence in front of him and bearing in mind that there was no documentary evidence whatsoever that related specifically to the applicant. The adjudicator's view of the likelihood of a diplomat acting in this way when his actions were bound to come to light on an asylum claim, as they have done, was, in my judgment, not Wednesbury unreasonable. It has to be seen in the context of a total absence of evidence of the mere existence of Mr Kalucha in the first place. The account given, after all, was one where apparently this career diplomat secured the entry of the applicant into this country, probably on a diplomatic passport, or at least by some other unlawful method, since it is not suggested that the applicant obtained entry using a genuine passport. Whatever the precise truth of that account, it is quite clear that this career diplomat would have been acting in a way which would indeed have threatened to cause problems in diplomatic terms between this country and Zambia with inevitable repercussions for the diplomat himself. There is, of course, no evidence at all that this man had been put under any pressure by the applicant's sister.
11. I have to say that, although that was the only point raised in the notice of appeal to the Immigration Appeal Tribunal and therefore, effectively, the only point which ought to be canvassed on this hearing today, that point did not stand alone in the exercise in which the special adjudicator engaged when reaching a conclusion on credibility. The view of credibility which he formed had a broader foundation. He also based his assessment on, for example, the unlikelihood of the escape route described by the applicant, involving, as it did, a three to four day journey across the breadth of the Democratic Republic of the Congo -- a country, after all, where the applicant was said to fear persecution -- as compared to the much shorter one described in evidence before the adjudicator of crossing to Brazzaville in the republic of Congo. That involved only a short distance plus a 20 minute crossing of the Congo river.
12. I quite accept the point that is made by Miss Fielden that this alleged diplomat was said to be from Zambia. But in my judgment the adjudicator did not act irrationally in taking account of the extra risks involved in a three to four day journey across the very country where the applicant was said to be at fear of persecution as compared to that very short trip to Brazzaville. Those risks must have been considerable.
13. The adjudicator had also relied upon the applicant's assertion that the UNTZ Union was illegal, which conflicted with the documentary evidence.
14. I can see the point which is made on behalf of the applicant that the special adjudicator in saying that there was no corroboration of the applicant's account could be criticised, because there was the "Flight into Exile" describing similar escapes from military detention in the Democratic Republic of Congo; but, to my mind, the special adjudicator clearly meant by his comment that there was no corroboration specifically above the applicant's account of his own experiences. There was, for example, no train ticket; there was no letter from Mr Kalucha; no evidence indeed, as I have stressed already, of Mr Kalucha's existence. I cannot see that there is any real basis, when viewed in that way, for criticism of the special adjudicator's comment to which I have just referred.
15. I am bound to conclude that the special adjudicator did not act irrationally in arriving at the view which he took about the applicant's credibility and that the Immigration Appeal Tribunal did not act irrationally either in refusing leave to appeal. For that reason, it seems to me that the learned judge below was right in the conclusion which he reached and there is no real prospect of success for an appeal in this case. This renewed application is therefore dismissed.
Order: Application dismissed. Legal aid assessment of the Applicant's costs. (ORDER DOES NOT FORM PART OF APPROVED JUDGMENT)