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You are here: BAILII >> Databases >> United Kingdom Asylum and Immigration Tribunal >> SW (Adjudicator’s questions) Somalia [2005] UKIAT 00037 (08 February 2005) URL: http://www.bailii.org/uk/cases/UKIAT/2005/00037.html Cite as: [2005] UKAIT 00037, [2005] UKIAT 00037, [2005] UKIAT 37 |
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SW (Adjudicator's questions) Somalia [2005] UKIAT 00037
Date of hearing: 24 November 2004
Date Determination notified: 08 February 2005
SW |
APPELLANT |
and |
|
Secretary of State for the Home Department | RESPONDENT |
Background
Facts
"6. She said that her grandmother died around the end of August 2003. At the time of the Asylum Interview on 24th July 2003 her grandmother was still alive. She said that she mentioned her grandmother's death in her Witness Statement dated 7th October 2003. Asked why it wasn't referred to in the Statement, she then said she wasn't sure if she had mentioned it to her solicitor, Ms Sheona York. She agreed that her grandmother's death was 'rather important' and that it was surprising that there was no reference to it in her Witness Statement. Invited by the Adjudicator to call Ms York as a witness if she wished to, she said it was possible she didn't tell her. This was because the issue was not raised. If Ms York had asked her about it she would have mentioned it. If she went back to Somalia she would have no-one to live with. If she returned to Somaliland she would have no-one to live with and there would be a 'problem' of people thinking she was from 'the Ogaden' because of her accent. There was a 'possibility' that she might be attacked. She said that she now lived with her sister Safia and Safia's four daughters and one son in Isleworth."
"9. I did not find the appellant a credible witness as to whether she had been persecuted. There were significant discrepancies in her accounts. She said in evidence she feared death at the hands of the Ogaden if she returned to Balaad, and yet she said in the SEF Interview that when some Ogaden realised that she was an Isaaq nothing happened to her except verbal abuse and touching (see the answer to question 29).
10. Her story about her grandmother's death lacked credibility. In the appellant's witness statement which was dated 7th October 2003, there was no reference to the grandmother dying in August 2003. I have no doubt whatsoever that if the grandmother had died in August 2003 that fact would have been communicated to Ms York, the solicitor who the appellant said took her statement. The fact that it was not communicated to Ms York led me to conclude that I could not be satisfied to the lower standard of proof that the grandmother had died, nor consequently was I satisfied to the lower standard of proof that the appellant had a grandmother who was a member of the Ogaden tribe who had lived in Balaad.
11. I noted furthermore that in the Skeleton Argument dated 8th October 2003, apparently compiled by a member of the Hammersmith Law Centre, there was a reference to the grandmother 'becoming old and ill'. If the grandmother had died at the end of August, this fact would have been mentioned because it was vital for the appellant to show that she had no-one to look after her. The death of the grandmother was known to be of seminal importance to the appellant and her failure to mention it to Ms York was of great significance in the context of her claim to be vulnerable on return. In her evidence the appellant gave conflicting accounts as to whether she had told Ms York about this event. To start with she was sure that she had told Ms York. When asked why it wasn't in her Witness Statement she became less sure and said that she wasn't sure that she had mentioned it at all. She agreed that it was an important part of her case and it was surprising that there was no reference to it. My invitation to Ms Brown of Counsel to call Ms York was not accepted. In all the circumstances I was not satisfied to the lower standard or proof that the appellant had told Ms York at all. I concluded that if the grandmother had really died that would have been mentioned to Ms York. The fact that it wasn't significantly damaged the credibility not just of the grandmother's death story but of the whole core of the grandmother's story. There was no corroboration of the existence of a grandmother living in Balaad."
"13. Taking fully into account the objective evidence drawn to my attention by Ms Brown about the vulnerability of returning single women and balancing that against my clear adverse credibility findings, I could not be satisfied to the lower standard of proof that the appellant had fled Somalia because she feared persecution nor was I satisfied to the lower standard or proof that the story about living with her grandmother in Balaad was true. If she was a member of the Isaaq clan she was unlikely to be subjected either to a risk of persecution by other clan members or Article 3 mistreatment."
"If I went back now to the south, I would have no one to live with. My grandmother died around the end of the eighth month 2003. I don't remember the exact date but I heard about the end of the eighth month – I know it was August. I referred to it in my statement to my solicitors of 7/10/03. I thought I had mentioned to my solicitor Sheona York. I am not sure if I did mention it. I agree it's rather important – it's surprising that there is no reference."
"There were occasions when I asked the interpreter to ask the Appellant to give shorter answers, in order to assist the interpreter, Mr Musa Hussein, who was trying to do his best to translate answers. However because of their length, I decided that it would be much easier for Mr Hussein if the Appellant paused to enable Mr Hussein to translate the more easily."
Submissions
"In Muwyinyi v Secretary of State for the Home Department (Immigration Law Update Vol 3 No 3 p. 13) the President observed that adjudicators were not bound to accept accounts at face value but could and should probe apparent improbabilities. However, they must not involve themselves directly in questioning appellants or witnesses save as was absolutely necessary to enable them to ascertain the truth and must never adopt or appear to adopt a hostile attitude. That is wholly consistent with the Surendran guidelines which show how the adjudicator should conduct such an exercise."
"32. When evidence is being taken from a witness and where there is representation on both sides, an Adjudicator's role is of silent listening. It may very occasionally happen that an Adjudicator is so unclear as to what he has heard that he needs to ask for something to be repeated and, of course, there may occasionally be difficulties with interpreters causing the Adjudicator's general control over the proceedings to come into play. But it is for the parties to bring out evidence in the order they think appropriate and it is for the parties to put whatever contradictions in the evidence need to be put to the witness. When the evidence has been finished, in the sense that there has been examination-in-chief and cross-examination and re-examination, it may be that the Adjudicator wishes to put matters arising out of the evidence to the witness: but the time for that is after re-examination. If the Adjudicator does ask the witness any questions, he must then always give an opportunity to the parties to ask any further questions which arise from his. An Adjudicator who intervenes during the course of evidence is running the risk that he will be seen to be taking the side of one party or the other."
That case addressed the question of the role of the Adjudicator in a case where both the Appellant and the Home Office were represented. It is therefore understandable and correct that the advice given was that, in those circumstances, an Adjudicator should await the conclusion of examination-in-chief, cross-examination and re-examination before asking questions which arose out of the substance out of the evidence.
Conclusions
"A decision which concentrates primarily on findings of credibility for its outcome is in general more likely to be found to be flawed …"
This quote was added to the comments of Turner J in R v IAT ex parte Hussain [1982] Imm AR 23 to the effect that the assessment of credibility was not the true focus of an Adjudicator's task.
"38. Questions should not be asked in a hostile tone. They should not be leading questions which suggest the answer which is desired, nor should they disguise what is the point of concern so as to appear like to a trap or a closing of the net. They should be open ended questions, neutrally phrased. They can be persisted in, in order to obtain an answer; but they should not be persisted in for longer than is necessary for the Adjudicator to be clear that the question was understood, or to establish why it was not being answered, or to pursue so far as necessary the detail underlying vague answers. This will be a matter for the judgment of Adjudicators and it should not usually take more than a few questions for an Adjudicator to establish the position to his own satisfaction. An advocate should always be given the chance to ask questions arising out of what the Adjudicator has asked, which will enable him to follow up, if he wishes, the answers given thus far. The Adjudicator can properly put, without it becoming a cross-examination, questions which trouble him or inferences from answers given which he might wish to draw adversely to a party. These questions should not be disproportionate in length to the evidence given as to the complexity of the case, and, we repeat, an Adjudicator should be careful to avoid developing his own theory of the case.
39. There is a tension, reflected in the guidelines, between fairness in enabling a party to know the points on which an Adjudicator may be minded to reach conclusions adverse to him where they have not directly otherwise been raised, and fairness in the Adjudicator not appearing to be partisan, asking questions that no-one else has thought it necessary to ask. This has proved troublesome on a number of occasions.
The tension should be resolved, so far as practicable, by recognising the following:
(1) It is not necessary for obvious points on credibility to be put, where credibility is generally at issue in the light of the refusal letter or obviously at issue as a result of later evidence.
(2) Where the point is important to the decision but not obvious or where the issue of credibility has not been raised or does not obviously arise on new material, or where an Appellant is unrepresented, it is generally better for the Adjudicator to raise the point if it is not otherwise raised. He can do so by direct questioning of a witness in an appropriate manner.
(3) We have set out the way in which such question should be asked.
(4) There is no hard and fast rule embodied in (1) and (2). It is a question in each case for a judgment as to what is fair and properly perceived as fair.
The Surendran guidelines and MNM should be read with what we have set out above."
MR JUSTICE OUSELEY
PRESIDENT