Tribunal decisions

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YV (Fresh credibility evidence) Sri Lanka [2004] UKIAT 00124

IMMIGRATION APPEAL TRIBUNAL

Date of Hearing: 13th May 2004
Determination delivered orally at Hearing
Date Determination notified:
03 June 2004

Before:

The Honourable Mr Justice Ouseley (President)
Miss K Eshun (Vice President)
Miss J Grimmett

Between:

APPELLANT

and

Secretary of State for the Home Department
RESPONDENT

For the Appellant: Ms P Gandhi, instructed by Tamil Welfare Association
For the Respondent: Mr S Bilbe, Home Office Presenting Officer

DETERMINATION AND REASONS

1. This is an appeal from the determination of an Adjudicator, Ms S Kaler, promulgated on 11th September 2003. In that determination, the Adjudicator dismissed the appeals of the Appellant on both human rights and asylum grounds. The Appellant is a Tamil male from Sri Lanka born in October 1970. He entered the United Kingdom on 4th May 2003 and claimed asylum on arrival.

2. The Adjudicator sets out the Appellant’s story in some detail in her determination. Essentially, he says that although he had joined the LTTE in 1987 he had ceased to be a member a year later, although he had continued to work for them as a driver. He was arrested in June 1997 by Security Police because of his LTTE membership and detained for a week or so during which time he was tortured and made to confess to being an LTTE member. He was sentenced to a term of imprisonment for a year, but managed to escape from a toilet before he was transferred to prison. There was a debate about his consistency in saying that a security guard assisted him or that the security guard was incompetent. Having escaped, he fled to Batticaloa where the LTTE were in control. However, after the signing of the peace treaty in February 2002, he moved to an army-controlled area where he set up a tea business but the LTTE suspected him of providing the EPDP with information and wanted to question him. He was being taken on a boat by the LTTE, but was able to jump overboard and escape and fled to another army-controlled area, remaining there until May 2003 when he left for the United Kingdom fearing both the LTTE and the authorities.

3. Part of the evidence which the Appellant produced was a photocopy of a newspaper cutting which said that he had been linked with an attack on a television station, an attack on a radio station and a plot to assassinate the head of government. He said that his photograph had been shown on national television shortly after his escape from detention. Later, he said that was in Colombo only.

4. The Appellant was cross-examined about a number of matters by the Home Office Presenting Officer; the Home Office had refused the claim on the grounds that he was not credible. The Appellant was therefore well aware before his appeal to the Adjudicator was made, that there was going to be an issue as to the credibility of almost all that he had to say and he was therefore on the clearest notice as to the need to produce the evidence which would support the contentions which he wished to make.

5. The Adjudicator expressed her views of his credibility in clear language. It is not necessary to set out all of it, but because of the way in which this appeal has been developed it is necessary to set out part of it.

“19. The Appellant originally said that he was detained for involvement with the LTTE. He added to this later on by saying that he was suspected of an incident at a television station. The newspaper article he produces names him and links him with this, as well as an attack on a radio station and a plot to assassinate the head and senior minister in the government. These are substantially different to his original account. The explanation he gives is that he could not remember everything, and also that it was not true he was linked with the conspiracy to assassinate. These are serious matters, and it is not every LTTE suspect who is suspected of such serious charges. The Appellant must have been aware of the contents of the newspaper articles and would have been expected to at least refer to its presence and the details it contains, whether true or not.

20. Even if the allegations were not true, the fact that he was suspected of them would have made him a high level prisoner, who would have been closely guarded. The Appellant has changed the details of how he escaped from custody. He originally mentioned that this was with the assistance of a guard and his reasons for doing so are mentioned specifically in answer to question 36 of the Home Office interview. He changes this account in his statement saying that the guard was sympathetic to him but did not assist him. In his oral evidence, he said that the guard had been sacked for his involvement. I also note that he claims to have suffered severe torture, leaving lasting scars, yet he managed to escape from the toilet and walk through a tea plantation to get away. The whole story of escaping from the toilet, the guard being complicit (it is not even suggested he was bribed) and his walking away in spite of his injuries from serious torture is highly implausible. Coupled with the fact that the Appellant has changed his story, it is incredible.”

6. The Adjudicator dealt with a newspaper article produced to her, the photographs of scars, the uncertainty as to whether he had been sentenced or remanded, and the fact that he had lived in government-controlled areas even though he was suspected of serious crimes. She said this, in that respect:

“24. The Appellant’s story is that he lived under a false name. However he moved freely in government controlled areas after 2002. Even though he was using a false name, he had escaped from custody and was a high level prisoner. It is surprising and not credible that he was never suspected and had no problems with the authorities at this time. My disbelief as to his story is further enforced by the fact that his own photograph was in his passport when he left the country. He seems to have had remarkable luck in not only being able to escape from a toilet, not being detected in an army camp and controlled area for months, and also being undetected at the airport. In my view, this is not good fortune but implausible.”

7. The Adjudicator then said that she found the Appellant’s story of his escape from the boat fanciful and concluded, in paragraph 26:

“In summary, I find the entire account put forward by this Appellant riddled with inconsistency and implausibility. I find that he has not been truthful about what he has said. I do not believe he left Sri Lanka because he was in fear of the authorities or that the LTTE were interested in him. He has not shown that he would of interest to either on return.”

8. Finally, the Adjudicator considered whether there was anything in the background material which would have prevented the return of the Appellant to Sri Lanka.

9. The Appellant sought permission to appeal to the Tribunal against that determination. The grounds of appeal, which raised a number of points of criticism of the Adjudicator’s approach to the evidence, were supported by a letter dated 25th September 2003 from a Sri Lankan attorney, Mr G Rajagulendra. No explanation was provided as to how that letter had come into being. There was no reference as to whether it could have been provided at an earlier stage.

10. The Vice President refusing leave to appeal on a point of law, to which his relevant jurisdiction was restricted, criticised the grounds of appeal for referring to a case with an impenetrable citation and for suggesting that the Tribunal was obliged to look at material obtained after the Adjudicator’s decision in deciding whether to give permission to appeal. He said that the decision relied on clearly dated from before the Tribunal’s jurisdiction to grant leave was restricted to points of law and commented that it could not be an error of law for an Adjudicator not to consider something which it was for a party to put before him, but which the party had failed to do. He refused permission to appeal.

11. The Appellant sought Statutory Review of that refusal and in the grounds for Statutory Review said that the letter in question had been obtained from the lawyer “in light of the Adjudicator’s adverse credibility findings on the newspaper report”. In other words, it was being asserted that the material had been obtained in order to criticise credibility findings which had been made on the evidence which the Appellant had chosen to place before the Adjudicator. Still no explanation was provided as to how that letter had come into being, nor reference to whether it could have been provided for the Adjudicator to consider.

12. Silber J reversed the decision of the Tribunal. However, he did so on the basis that the Tribunal should have considered the admissibility of the letter from Mr Rajagulendra in order to determine if permission to appeal should have been granted. He required the Tribunal to reconsider the application for leave to appeal and to consider whether to admit the letter. It is plain that Silber J, in reaching the decision he did, was under the misapprehension that the effect of the Order which he made would simply be to require the Tribunal to reconsider whether or not to grant leave to appeal. That would have been the position in relation to an application for Judicial Review. It is not the position in relation to Statutory Review. The effect of his decision, although not his intent, was that leave to appeal to the Tribunal was in fact granted.

13. The matter then came before the Tribunal to consider whether the appeal should be allowed on the basis of the various matters which have been raised in the grounds of appeal including the question of the admissibility of the letter upon which the Appellant seeks to rely. We emphasise, however, in considering these matters that the appeal is brought, not on fact but on a point of law.

14. We first examined, however, the compliance of the Appellant with the Tribunal’s Rules. Rule 21 of the Immigration and Asylum Appeals (Procedure) Rules 2003 deals with what an Appellant must do if he seeks to persuade the Tribunal to admit new evidence which was not before the Adjudicator. Rule 21(2) provides that the party must file with the Appellate Authority and serve on the other party written notice to the effect that he is going to ask the Tribunal to consider that new evidence. That notice must indicate the nature of the evidence and, importantly, explain why it was not submitted to the Adjudicator.

15. The Appellant did not comply with the requirements of that Rule. Ms Gandhi said that the solicitors may have thought that the inclusion of the brief reference to the evidence in the application for Statutory Review sufficed for compliance with that Rule. It does not. It is necessary, if leave to appeal is granted upon Statutory Review, for the requirements of Rule 21 to be met. The explanation proffered as to why it was not submitted to the Adjudicator was that the evidence was only submitted in order to deal with the adverse credibility findings. That cannot be an explanation within the contemplation of the Rules. What is required in those circumstances to constitute an explanation is why material which was available beforehand was not sought, obtained and presented beforehand. The relevant explanation is not concerned with the tactical way in which an appellant seeks to organise an appeal, providing such evidence as he thinks necessary and then when unsuccessful, serving further evidence on an appeal.

16. Ms Gandhi realistically accepted that, notwithstanding the number of points which had been raised in her Notice of Appeal and application for Statutory Review, she would be unable to criticise the Adjudicator’s determination in such a way to suggest that it showed an error of law unless she were able to persuade the Tribunal to admit the letter from Mr Rajagulendra.

17. The approach which the Tribunal should adopt to the admissibility of new evidence is considerably assisted in relation to a case falling under the 2003 Rules by the decision of the Court of Appeal on the 1999 Rules in E v Secretary of State for the Home Department [2004] EWCA Civ 49.

“92. In relation to the role of the IAT, we have concluded
i) The Tribunal remained seized of the appeal, and therefore able to take account of new evidence, up until the time when the decision was formally notified to the parties;
ii) Following the decision, when it was considering the applications for leave to appeal to this Court, it had a discretion to direct a re-hearing; this power was not dependent on its finding an arguable error of law in its original decision.
iii) However, in exercising such discretion, the principle of finality would be important. To justify reopening the case, the IAT would normally need to be satisfied that there was a risk of serious injustice, because of something which had gone wrong at the hearing, or some important evidence which had been overlooked; and in considering whether to admit new evidence, it should be guided by Ladd v Marshall principles, subject to any exceptional factors.
We should emphasise that this analysis is based on the regime applicable to this case, under which the right of appeal to the IAT was not confined to issues of law (before the change made by the 2002 Act, s 101: see para 17 above).
93. Applying those principles to the present cases, the actual reasons given by the IAT for refusing to consider the new evidence were erroneous in law. We understand its desire on practical grounds to confine the evidence to that produced at the hearing. However, where, as in these cases, there is substantial delay before the decision is issued, new evidence may emerge which undermines the basis of the conclusions reached at the hearing. If so, it cannot automatically be excluded, where justice requires it to be taken into account.”

18. Paragraph 23 sets out the Ladd v Marshall principles:

“23. ii) New evidence will normally be admitted only in accordance with ‘Ladd v Marshall principles’ (see Ladd v Marshall [1954] 1 WLR 1489), applied with some additional flexibility under the CPR (see Hertfordshire Investments Ltd v Bubb [2000] 1 WLR 2318, 2325; White Book para 52.11.2). The Ladd v Marshall principles are, in summary: first, that the fresh evidence could not have been obtained with reasonable diligence for use at the trial; secondly, that if given, it probably would have had an important influence on the result; and, thirdly, that it is apparently credible although not necessarily incontrovertible. As a general rule, the fact that the failure to adduce the evidence was that of the party's legal advisers provides no excuse: see Al-Mehdawi v Home Secretary [1990] 1AC 876.”

19. Ms Gandhi very frankly accepted that the evidence in question could have been made available with reasonable diligence to the Adjudicator. Nonetheless, as E makes clear, it is not the end of the case that the evidence fails the Ladd v Marshall test. There may be circumstances in which evidence which fails that test may be admitted where exceptionally the interests of justice so require. One of the matters which it is important to consider in that context is whether the evidence is, on the face of it, credible and supportive of what the Appellant has been saying, but which has been rejected. Of course, different considerations will apply where the new evidence consists of evidence as to changes in background conditions following an Adjudicator’s determination or a change in personal circumstances, for example in an Article 8 case.

20. The Tribunal emphasises, however, in view of the importance of finality in decision making, that it is wholly appropriate for those granting permission to appeal, and we would respectfully say for those considering Statutory Review applications, to be very cautious about endorsing any practice which would enable somebody who is dissatisfied with the credibility findings of an Adjudicator to seek out a piece of further evidence with which to take issue with those findings, where that evidence could, as in this case, have been made available beforehand.

21. We turn, however, to examine the document which has been provided. We observe first of all that there is no explanation as to how this document came into being, as to what exchanges brought it into existence. Ms Gandhi told us that she had been instructed that after receipt of the Adjudicator’s determination, her solicitors had written to Mr Rajagulendra and the upshot was this letter in reply. She had not yet received the letter which her solicitors wrote. There is no explanation in any material provided by the Appellant as to his relationship to Mr Rajagulendra. Indeed, it appears from all the material that Mr Rajagulendra features for the first time only in this letter which has been produced after the Adjudicator’s determination.

22. That, by itself, is sufficient to raise very considerable doubts as to the value which could be placed upon such a document. One would normally expect the provenance of the document to be very clearly explained and the relationship between the Appellant and the new evidence to be expressed clearly.

23. However, the document itself gives considerable cause for doubt as to its truthfulness. The essential feature of it is that it is intended to support the Appellant’s contention that he was taken into custody by a security unit of the police and that while he was there he was tortured and that he had been subsequently able to escape and that his photographs have been displayed on wanted lists. It also says that the basis of his being taken into custody was an alleged conspiracy to kill the President of Sri Lanka. However, as the Adjudicator pointed out, there had been no reference to the Appellant being involved in any such assassination plot when the Appellant was originally asked about his asylum claim. It was only later that he remembered that he had been involved in a plot to assassinate the Prime Minister. The Adjudicator, understandably, did not regard as credible the idea that the Appellant, if taken into custody on suspicion of having been involved in that plot, would not have had that at the forefront of his mind when asked about his involvement with the LTTE and his fear of the authorities. It fitted implausibly with the Appellant’s later residence in government-controlled areas. The document suffers from the inherent incredibility of the story it purports to support.

24. It is very surprising, if Mr Rajagulendra did visit the Appellant in custody, that he was able to do so where the security policy were detaining him, very shortly after he had been tortured and in circumstances where the effects of that torture were readily visible.

25. Even more surprising is the fact that the Appellant, when asked at interview (Q 35) whether he had been provided with legal representation for his trial in Sri Lanka, replied that he had had no chance to obtain a solicitor. No mention was made of Mr Rajagulendra’s purported visit. (The reference to a lawyer earlier is to an English lawyer in the United Kingdom.) This lawyer and his visit was not even mentioned to the Adjudicator.

26. Mr Rajagulendra’s letter is vehement as to the Appellant’s notoriety and risk – yet the Appellant, on his claim, was sentenced (if tried) to no more than a year’s imprisonment, was loosely guarded, lived in government-controlled areas after his escape, and had his own photograph in his passport when he left. None of this is even touched on. Ms Gandhi said that if this letter was admitted, the error of law which it would enable her to show was that the Adjudicator’s credibility findings were perverse, or, when pressed as to the realism of that, “something along those lines”.

27. We decline to admit this evidence. The Rules were not complied with. No explanation has been offered as to its production or why it was not sought earlier. The explanation that it was not necessary to produce further evidence until the appeal was dismissed is a wholly unsatisfactory explanation; the Tribunal will not regard this sort of tactic as a basis for reopening findings of fact or credibility.

28. The Appellant’s credibility was plainly at issue from the Secretary of State’s letter of refusal. All relevant evidence which could be obtained with reasonable diligence should have been obtained. This could have been obtained. There are no grounds for an exception being made so as to admit it. Far from assisting the Adjudicator’s findings to be undermined, the contents of the document and the manner and timing of its production reinforce her conclusions as to the Appellant’s lack of credibility.

29. This appeal is dismissed. It is reported as an example of the application of E to the 2003 Rules.

MR JUSTICE OUSELEY
PRESIDENT