D v Immigration and Protection Tribunal
[2014] NZHC 3017
•28 November 2014
NOTE: THE CONFIDENTIALITY OF THE NAME OR IDENTIFYING PARTICULARS OF THE APPLICANT AND OF HIS CLAIM OR STATUS MUST BE MAINTAINED PURSUANT TO S 151 OF THE IMMIGRATION ACT 2009.
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
CIV-2014-404-000552
[2014] NZHC 3017
UNDER THE Judicature Amendment Act 1972 and the
Immigration Act 2009
IN THE MATTER OF
The 1951 Convention Relating to the Status of Refugees, and its 1967 Protocol and The International Covenant on Civil and Political Rights
AND IN THE MATTER
of an application for leave to bring a Judicial
Review proceeding
AND IN THE MATTER
of an application for Judicial Review
BETWEEN
D Applicant
AND
THE IMMIGRATION & PROTECTION TRIBUNAL
First Respondent
CHIEF EXECUTIVE OF THE MINISTRY OF BUSINESS, INNOVATION AND EMPLOYMENT
Second Respondent
Hearing: 20 November 2014 Appearances:
R S Pidgeon for Applicant
M Coleman and M Clark for Second RespondentJudgment:
28 November 2014
JUDGMENT OF VENNING J
This judgment was delivered by me on 28 November 2014 at 4.30 pm, pursuant to Rule 11.5 of the
High Court Rules. Registrar/Deputy Registrar Date……………
Solicitors: Pidgeon Law, Auckland
Crown Law, Wellington
Copy to: R S Pidgeon, Auckland
D v THE IMMIGRATION & PROTECTION TRIBUNAL [2014] NZHC 3017 [28 November 2014]
Introduction
[1] The applicant (D), a Ugandan national, seeks leave to bring judicial review proceedings against a decision of the Immigration and Protection Tribunal (the Tribunal) dismissing his appeal from a decision of a Refugee and Protection Officer (RPO).1 Leave is required under s 249(1C) of the Immigration Act 2009 (the Act).
Background
[2] D arrived in New Zealand on 23 February 2007 on a visitor visa issued under a different identity. The Refugee Status Branch (RSB) received D’s first claim to refugee status on 29 May 2007. The application was determined under the Immigration Act 1987. It was declined on 30 April 2008. D appealed. The appeal was declined on 28 July 2009. D lodged an appeal to the Minister of Immigration. On 22 September 2010 D’s appeal to the Minister of Immigration was declined.
[3] On 28 November 2010 D made a second claim for refugee status (this time including a claim for protected person status).
[4] That claim was declined on 1 November 2011.
[5] D appealed that decision to the Tribunal on 9 November 2011. The hearing was held on two days, 28 August 2012 and 12 June 2013. Further submissions were filed in support of the appeal after the hearing.
[6] On 11 February 2014 the Tribunal dismissed D’s appeal.
[7] D has not sought leave to appeal to this Court on a question of law. Rather, he now seeks leave to review the decision of the Tribunal.
Statutory framework
[8] Section 249 provides:
249 Restriction on review
1 D [2013] NZIPT 800261.
[(1) No review proceedings may be brought in any court in respect of a decision where the decision (or the effect of the decision) may be subject to an appeal to the Tribunal under this Act unless an appeal is made and the Tribunal issues final determinations on all aspects of the appeal.]
[(1A) No review proceedings may be brought in any court in respect of any matter before the Tribunal unless the Tribunal has issued final determinations in respect of the matter.]
[(1B) Review proceedings may then only be brought in respect of a decision or matter described in subsection (1) or (1A) if the High Court has granted leave to bring the proceedings or, if the High Court has refused to do so, the Court of Appeal has granted leave.]
[(1C) In determining whether to grant leave for the purposes of this section, the court to which the application for leave is made must have regard to—
(a) whether review proceedings would involve issues that could not be adequately dealt with in an appeal against the final determination of the Tribunal; and
(b) if paragraph (a) applies, whether those issues are, by reason of their general or public importance or for any other reason, issues that ought to be submitted to the High Court for review.]
(2) Nothing in this section limits any other provision of this Act that affects or restricts the ability to bring review proceedings.
[9] Section 249(1C) provides for a two stage consideration. The first limb requires the Court to consider whether the issues proposed to be raised could not be adequately dealt with in an appeal. Where an appeal on a point of law would adequately address the issues raised leave to review ought to be declined.2
[10] If the first limb is satisfied, the second limb requires the Court to consider whether, by reason of their general or public importance or for any other reason the issues ought to be submitted to this Court for decision. The issues raised in a proposed appeal review will not be of “general or public importance” where the law is settled. In LMN v Immigration New Zealand this Court said of the provision
requiring leave to appeal:3
2 Songmia v Minister of Immigration [2013] NZHC 3233 at [13]; and Guo v Immigration and
Protection Tribunal [2014] NZHC 804 at [102].
3 LMN v Immigration New Zealand [2013] NZHC 2077.
[2] Section 245 of the Immigration Act 2009 provides a right of appeal with leave to this Court against a decision of the Tribunal. The grounds for granting leave are narrow. In short, the applicant must show that his application raises a question in law of general or public importance, or which for any other reason should be submitted to this Court for its decision. Thus, factual errors or legal errors that are no more than a misapplication of existing legal principle to the particular facts of the case will not qualify. The effect of s 245 is to grant the Tribunal authority to misapply settled law to the facts of a case before it. Only if the legal errors have a wider significance that extends beyond the applicant will the Court have jurisdiction to grant leave to appeal. The key issue for determination, therefore, is whether the applicant has identified legal errors on the part of the Tribunal that extend beyond the individual case. Consideration also needs to be given to whether the applicant falls into the remaining category of providing “any other reason” for his appeal to be submitted to this Court for determination.
The proposed grounds of review
[11] At the outset of the hearing Mr Pidgeon clarified that the proposed grounds of review are:
(a) that there was a material mistake of fact because important medical evidence (a report of Dr Wenzel) was not before the Tribunal. If the evidence had been before the Tribunal then it would have supported the applicant’s credibility and answered the adverse findings the Tribunal made about his credibility;
(b) the interpretation and application of s 231 of the Act in this case.
[12] Although Mr Pidgeon did not dwell on the point in oral submissions, the proposed draft amended statement of claim also pleads that the Tribunal failed to take proper account of D’s likely fate on return to Uganda, and particularly criticised the Tribunal’s use of aspects of country information concerning Uganda. Mr Pidgeon’s written submissions also addressed the point.
The further evidence/Dr Wenzel’s evidence
[13] To support the application for leave Mr Pidgeon sought leave to file two further affidavits, one by the applicant himself annexing a copy of Dr Wenzel’s report and the second by Ms Curtis, the applicant’s counsel before the Tribunal.
[14] I received the affidavits de bene esse. The importance of Dr Wenzel’s affidavit is that, on the applicant’s case, it impacts on the credibility findings made against him. As the Tribunal noted, the Authority declined D’s first appeal. In doing so it found that he was not a credible witness. The Tribunal recorded the Authority’s findings as follows:
[8] The appellant first claimed (para [3](a)):
“That he is a Muslim apostate who converted to Christianity. He was an active member of Reform Agenda and the Forum for Democratic Change (FDC) – well known opposition parties in Uganda – in various capacities between 1999 and 2006. He was detained in 2001. He also claimed to have participated in a number of demonstrations in
2007 organised by a coalition of opposition political parties in protest against the Ugandan government’s planned sale of a particular forest (“the appellant’s first story”);
[9] The appeal hearing having commenced on that basis, counsel sought an adjournment on the third day, because the appellant had given instructions that amounted to “a significant departure” from his previous account. When the hearing resumed, the appellant advanced a different account (para [3](b) namely):
“That he is a Muslim convert who held the political positions claimed in his first story. He was detained not only in 2001 but also in 2006. He did not take part in the demonstrations relating to the forest but rather acted as a “mobiliser”, distributing fliers and stickers and generally encouraging other people to join the demonstrations (“the appellant’s second story”)”.
[10] The appellant produced a number of documents in support of that new account. These included testimonials from Forum for Democratic Change (“FDC”) party office-holders; a document from his wife in connection with a police bond, and a document from the pastor of a Christian church in Uganda, outlining work that the appellant had done for that church and providing the names of people the appellant had helped to convert to Christianity.
[11] On the fourth day of evidence in connection with the appellant’s second account (the seventh day of hearing time in total), the appellant again sought an adjournment. He claimed that some of the evidence given in support of his second story had also been untruthful. The hearing was again adjourned.
[12] When the hearing resumed the appellant put forward a third version of his refugee claim. He “substantially departed from the detailed evidence he had given previously in respect of both his first and second stories” (at [26]). He admitted that he did not hold the position of campaign agent for the FDC, (as previously claimed), that he had not undertaken any of the political activities that he had previously claimed and that he had not been arrested, detained or beaten following his release in 2001. Instead, he now claimed (para [3](c)):
“That he is a Christian convert who, in the period following his detention in 2001 until he resumed activities for the FDC in 2006, had not been actively involved with Reform Agenda or the FDC. He had not been detained in 2006. Nevertheless he had acted as a mobiliser in respect of the forest demonstrations (“the appellant’s third story”).”
[13] The appellant produced further documents in support of his new account, including an email and a letter purporting to be from the chairman of the FDC in Kampala.
[14] However, the appellant was not yet done. On the second day of the resumed hearing (the ninth hearing day in all), counsel again sought an adjournment in order to take further instructions from the appellant. This resulted in a fourth statement being provided by the appellant, in which he presented a fourth version of his account. He retracted his claim to have converted to Christianity. He said that his involvement in respect of the “Mabira Forest Campaign” was merely as a supporter of those involved in that campaign. He also conceded that his wife and family members had not been assaulted by the authorities because of his involvement in the Mabira Forest or the FDC, as previously claimed (at para [3](d)).
[15] The appellant claimed, in addition, that he had been identified as a failed asylum seeker in Uganda as a result of enquiries made by the RSB officer about the appellant in that country. He also produced articles, supposedly published in Uganda, that named him as a “former campaign agent” and that made allegations about his involvement in various political issues.
[16] The appellant also claimed to be at risk because he had exposed a people-smuggling ring that had brought him to New Zealand. He said that his wife had gone into hiding as a result.
The Authority’s Findings as to Credibility
[17] The Authority found the appellant to be almost wholly without credibility. Its reasons were set out in considerable detail. They will not be traversed exhaustively here, but were concisely encapsulated at [98], where it was found that the appellant had:
“(a) over an extended period of time …. [sworn] to the truth of a succession of accounts, each to be discarded in favour of the next account;
(b) admitted submitting in evidence documents which he knew to be false;
(c) given evidence which is implausible.”
[18] The Authority identified a number of documents that had been fabricated in order to provide apparent support for the appellant’s various accounts. These included a false bail bond, forwarded under cover of an email from the appellant’s wife, false letters from the FDC, supporting the appellant’s (subsequently abandoned) assertion that he had been active for the FDC as a campaign agent and in various other capacities; emails and a reference from a Christian pastor in Uganda, purportedly corroborating the appellant’s (also subsequently abandoned) assertion that he had converted to Christianity; and emails purporting to be from the appellant’s brother in connection with his wife’s supposed detention in 2007.
[19] Nor was the Authority satisfied that the appellant was who he said he was. He had produced, at different times, documents purporting to verify two different identities. The supporting documents included certificates issued by various educational institutions and bank documents produced under both identities.
…
[22] In light of the appellant’s willingness to say almost anything he believed would suit his purposes at any given time, the Authority was unable to accept any part of his various core accounts. With the exception of the appellant’s claim to be a national of Uganda, it found that “nothing he has said or produced can be safely relied on” (at [57]).
[15] The Tribunal relied on those adverse factual findings against D’s credibility. Mr Pidgeon seeks to address those findings by adducing the further evidence of Dr Wenzel, which he says supports D’s evidence that he was the subject of torture and accordingly would address the Tribunal’s findings on credibility. Dr Wenzel is a Professor of psychiatry, and an internationally recognised expert in assessing victims of torture.
[16] It is necessary to put the matter of Dr Wenzel’s evidence in the further context of the process of the appeal before the Tribunal. As noted, the Tribunal convened on 28 August 2012 and 12 June 2013. To support his applications, D said he had been tortured in Uganda. To support D’s case on this issue Ms Curtis arranged for D to be examined in 2011 by two overseas experts, Dr Wenzel and Dr Sebnem Korur Fincanci. The reports were not, however, available for the hearing, or in the case of Dr Wenzel, was not presented to the Tribunal.
[17] Instead, Ms Curtis produced a report dated 17 October 2012 from Dr Katie Ritchie, a consultant psychiatrist. She diagnosed D with post traumatic stress disorder. Ms Curtis also produced a report prepared by the Public Health Medical Officer at the Mangere Refugee Resettlement Centre dated 17 December 2012. The Medical Officer expressed the opinion that the applicant’s left leg bore surgical scars. X-rays disclosed the existence of screws that were consistent with D’s claim to have been hit on the leg with a rifle butt and a baton. A further scar on the inner part of the lower part of his left shin and a scar on the inner side of his left foot was said to be consistent with being caused by a bayonet. Irregularities in the nails of the big toe
on each of the applicant’s feet were said to be consistent with them having been pulled out.
[18] However, despite that evidence the Tribunal considered that, in light of the appellant’s broad lack of credibility the medical evidence tendered was of little assistance to it. Neither the psychiatrist nor the medical officer were able to give direct evidence about the cause of D’s injuries or the basis for the mental health difficulties he suffered from. In the absence of credible testimony from the appellant as to how the injuries arose the Tribunal concluded the medical evidence could be given no weight.
[19] In his report dated 24 August 2012 Dr Wenzel says that in his opinion D suffers from post traumatic stress disorder. The finding is consistent with possible memory impairment and highly increased PTSD related to stress during interviews related to alleged torture. D’s headaches indicate the need of further examination as they could be related to several possible diagnostic categories, especially but not limited to blunt brain trauma again consistent with described torture.
[20] A number of issues arise from the proposal to introduce Dr Wenzel’s report. First, it was clearly available to D’s counsel during the course of the hearing and before the formal evidence closed on the second day of hearing on 12 June 2013. It could have been presented to the Tribunal.
[21] In this context it is relevant that the onus is on the applicant to put forward the evidence to support his claim. Section 135 of the Act confirms it was the applicant’s responsibility to establish his claim. It was for him to ensure that all information, evidence and submissions were provided.
[22] Ms Curtis says in her affidavit that the reason Dr Wenzel’s report was not presented to the Tribunal is that she considered it needed to be supported by the accompanying report from Dr Fincanci in relation to the physical injuries. Unfortunately Dr Fincanci did not produce her part of the report. It is still not available.
[23] Ms Curtis deposed that:
I believed that I had explained this situation to the applicant, insofar as my view at the time was that the complete report needed to be filed to be of any assistance for the applicant because a full report would look not only at the physical injury but would offer a view whether those injuries were consistent with the events causing the injuries as described by the applicant.
[24] Mr Pidgeon referred to a number of academic articles regarding the admission of fresh evidence in the judicial review context4 to support his argument that the further evidence should be admitted. However, judicial review generally proceeds on the basis of evidence available to the decision-maker at the time of the decision: Northcote Mainstreet Inc v North Shore City Council, and Wilfred v Chief Executive of the Department of Labour.5 The attempted introduction of material after the event, especially for the purpose of casting doubt on the substantive reasonableness of the decision in question, is generally inappropriate. Judicial review should not be seen as a further opportunity to present or supplement evidence.
[25] As the Court of Appeal said in Roussel Uclaf Australia Pty Ltd v
Pharmaceutical Management Agency Ltd:6
New opinion evidence, not presented to the decision maker, can seldom help to demonstrate that a decision on what is essentially an evaluation exercise was unreasonable when made. It is not appropriate to allow in this material which was not before the decision maker, and was largely brought into existence after the impugned decision was made, and to do so essentially for the purpose of casting doubt on the substantive reasonableness of the decision.
[26] In the Chief Executive Land Information New Zealand v Te Whanau O Rangiwhakaahu Hapu Charitable Trust the Court of Appeal confirmed the approach
in Roussel Uclaf Australia Pty Ltd v Pharmaceutical Management Agency Ltd:7
4 See Michael Fordham “Fresh Evidence in Judicial Review” [2000] JR 18; Michael Kagan “Is truth in the eye of the beholder? Objective credibility assessment in refugee status determination” (2003) UNLV 366; and Professor Audrey Macklin, “Truth and Consequences: Credibility Determination in the Refugee Context” – Conference paper 1998.
5 Northcote Mainstreet Inc v North Shore City Council (2004) 10 ELRNZ 146 (HC) at [68]; and
Wilfred v Chief Executive of the Department of Labour [2007] NZAR 237 (HC) at [13].
6 Roussel Uclaf Australia Pty Ltd v Pharmaceutical Management Agency Ltd [1997] 1 NZLR 650, at 658.
7 Chief Executive Land Information New Zealand v Te Whanau O Rangiwhakaahu Hapu
Charitable Trust [2013] NZAR 539 (footnotes omitted).
[117] … The task of the reviewing court should be to assess whether, in the light of the evidence before the decision maker at the time, the decision was one that a reasonable decision maker could come to.75 The only use of the subsequent evidence should be to decide whether or not the material actually before the decision maker met that standard. Where a decision maker has made a defective enquiry, a court may find it necessary to refer to further evidence that would have been considered had a proper enquiry been made.
[118] In this case we do not consider that the Chief Surveyor’s inquiry was defective to the extent that it was proper for the High Court to refer to expert reports that were not available to the Chief Surveyor, except for the purpose of deciding whether the Chief Surveyor’s decision was reasonable. We have considered the subsequent evidence in that light and we do not consider that it reached the standard of showing that the Chief Surveyor should not have relied on Mr Henry’s survey and the accompanying geologist’s report.
[27] The further evidence Mr Pidgeon seeks to introduce does not reach the required standards for admission.
[28] This is not a case of fresh and crucial evidence coming to light after the hearing. Dr Wenzel’s evidence was available to Ms Curtis and the prospect of the evidence was known to the Tribunal.
[29] Counsel made a reasoned decision not to adduce what she regarded as an incomplete report, to the extent it was not supported by the report from Dr Fincanci on D’s physical examination. That was a reasonable approach for counsel to take. Counsel error is properly not pursued as a ground of review. Nor could it be in this case.
[30] Further, this is an application for leave to bring judicial review proceedings, it is not even yet at the stage of judicial review. Next, even if it was admitted, Dr Wenzel’s evidence that D suffers from post traumatic stress disorder consistent with torture is similar to the evidence that was before the Tribunal from Dr Ritchie. The Tribunal rejected that evidence, even when it was supported by the evidence of physical examination.
[31] The fundamental difficulty for the applicant is that all medical reports, including Dr Wenzel’s, rely on the applicant’s reporting of his symptoms and cause of the injuries. The Tribunal had concluded, despite the medical evidence before it,
that in the absence of credible testimony from the appellant as to how the injuries arose the medical evidence could be given no weight.
[32] It obviously cannot be an error for the Tribunal to fail to take account of evidence that was not before it.
[33] As noted, Mr Pidgeon submitted it was a material mistake of fact for the Tribunal not to have had Dr Wenzel’s evidence. He submitted this point could not be advanced as an appeal on a question of law. Even accepting for present purposes that mistake of fact is available as a ground for judicial review: Daganayasi v Minister of Immigration, New Zealand Fishing Industry Association Inc v Minister of Agriculture and Fisheries, and Southern Ocean Trawlers Ltd v Director-General of
Agriculture & Fisheries8 it may be seen as only another expression for the second
manifestation of an error of law as in Edwards (Inspector of Taxes) v Bairstow.9 It still requires unreasonableness or a failure to consider relevant factors. Importantly if a decision is made in ignorance of a fact then the person whose responsibility it was to provide the information about the fact cannot claim a mistake of fact: Commissioner of Inland Revenue Department v New Zealand Wool Board.10
[34] In addition to the earlier adverse findings, the Tribunal itself found D to be an unreliable witness:
[34] Further examples of the appellant’s capacity for giving mobile, self- serving and fundamentally inconsistent evidence emerged during the hearing before the Tribunal. For example, the Tribunal questioned him with respect to an interview he gave to an Australian journalist, Ebony Butler, for the purposes of a documentary. On the appellant’s own evidence, the journalist had travelled to at least three other countries and interviewed many other people, including prominent political figures, for the documentary. It was put to the appellant that there was therefore likely to be hundreds of hours of documentary footage to be distilled into a single documentary lasting perhaps two hours. There was therefore no guarantee that his interview would make it to the final cut, even if the documentary were ever to make it to air.
8 Daganayasi v Minister of Immigration [1980] 2 NZLR 130 (CA) at 145–149; New Zealand Fishing Industry Association Inc v Minister of Agriculture and Fisheries [1988] 1 NZLR 544 (CA); and Southern Ocean Trawlers Ltd v Director-General of Agriculture & Fisheries [1993] 2
NZLR 53 (CA). See generally the discussion Graham Taylor Judicial Review A New Zealand
Perspective (3rd ed, LexisNexis, Wellington 2014) at 15.12 et seq.
9 Edwards (Inspector of Taxes) v Bairstow [1956] AC 14.
10 Commissioner of Inland Revenue Department v New Zealand Wool Board (1999) 19 NZTC
15,476 (CA).
[35] The appellant’s initial response was that he had been told the documentary would be three hours in length, not two. When the Tribunal suggested that the point remained essentially the same, he then changed his answer and stated that the journalist had told him that the documentary would be published in several parts, each lasting some hours.
[36] In the circumstances the Tribunal formed the view that the appellant is prone to embellish and modify his testimony as he thinks fit, and that he is an unreliable witness.
[35] It cannot be seriously argued that the Tribunal acted unreasonably in rejecting
the applicant’s evidence as not credible.
The application of s 231
[36] The next issue is the applicant’s challenge to s 231. Mr Pidgeon submitted that the section has a draconian impact and was potentially open to challenge under Part 1A of the Human Rights Act 1993, and was potentially in conflict with s 27 of the New Zealand Bill of Rights Act 1990. The Act is placed in an international law setting so that “may” should be interpreted consistently with international obligations. Mr Pidgeon relies on the recent comments of Glazebrook J in Ye v Minister of Immigration:
[84] Although international instruments are not directly incorporated into domestic law it is assumed, as a matter of statutory interpretation, that in so far as their wording allows, statutes should be read in a way which is consistent with New Zealand’s international law obligations (see New Zealand Air Line Pilots’ Association Inc v Attorney-General [1997] 3 NZLR
269 (CA) at p 289; Burrows, Statute Law in New Zealand (3rd ed, 2003), pp 341 – 342; and Dunworth, “Public International Law” [2000] NZ Law Review 217, pp 224 – 225).
[37] With respect, Glazebrook J’s comments are uncontroversial. The passage does not, however, address the issue in the present case.
[38] Section 231 provides:
Findings of credibility and fact
(1) On any appeal or matter, the Tribunal may rely on any finding of credibility or fact—
(a) by the Tribunal in any previous appeal or matter determined by the Tribunal that involved the appellant or affected person; or
(b) by any appeals body in any previous appeal or matter determined by the appeals body that involved the appellant or affected person.
(2) A person may not challenge any finding of credibility or fact that may be relied on by the Tribunal under subsection (1).
(3) For the purposes of subsection (1)(b), matter includes an application by a refugee status officer under section 129L(1)(f) of the former Act.
[39] In the course of its decision the Tribunal applied s 231 as follows:
[31] When considering the appellant’s credibility, the Tribunal cannot ignore the basis upon which his first appeal was declined, and in that regard the Tribunal is entitled, if it elects to do so, to rely upon the Authority’s findings by virtue of section 231 of the 2009 Act.
[32] The Authority found that it could rely upon virtually nothing that the appellant had said. In explanation to the Tribunal, the appellant claimed that he had erred in following the advice of others, and had realised too late that he would be better served by telling the truth.
[33] It is apparent, however, that the Authority afforded the appellant ample opportunity to be candid. Having heard the appellant’s continually evolving and fundamentally contradictory evidence over
10 hearing days, the Authority’s findings with respect to credibility were carefully articulated and robust. The appellant has provided no
cogent explanation as to why the Tribunal should not rely upon them
and the Tribunal finds that it is appropriate to do so.
[40] There is nothing in the Refugee Convention or for that matter the Human Rights Act, that precludes the Tribunal from relying on earlier credibility findings where that is expressly provided for as in s 231. The section is clear. Nor can there be any seriously arguable case that s 27 New Zealand Bill of Rights Act 1990 was breached. D was given full opportunity to be heard at the Tribunal.
[41] Mr Pidgeon also submitted that the Tribunal had effectively misdirected itself or misapplied s 231 in its reference to “if it elected to do so” when the operative word in the section is “may”.
[42] With respect there is nothing in that point. In context “may” is an instance of
what is expressed by the verb may; a possibility.11 The Tribunal had the possibility
11 John Simpson and others (eds) Oxford English Dictionary (online ed) was entitled, if it elected to do so, to rely on the previous findings. The Tribunal did not misdirect itself.
[43] Mr Pidgeon next referred to an article by Satvinder Juss12 discussing in particular the duty to give adequate reasons. However the present case is quite different to the case discussed in the article: R v Secretary of State for the Home Department ex parte Swati.13 The Tribunal gave reasons for applying the previous decisions as to D’s credibility. Further the Tribunal went on in any event to find at the passages [34]–[36] of its decision that there were further examples of the appellant’s capacity for “giving mobile self serving and fundamentally inconsistent evidence emerged during the hearing before the Tribunal” itself.
[44] The applicant’s position in relation to s 231 is simply not capable of serious bona fide argument.
The failure to take into account
[45] The alleged failure by the Tribunal to take account of the applicant’s likely fate on return to Uganda was also a factual matter considered by the Tribunal. The Tribunal was entitled to rely on country information indicating the Government does not supervise internet use closely. It was a matter for the Tribunal to determine. It was entitled to conclude there was “no credible evidence to believe [D’s] expression of opinion via the internet will have come to the attention of the Ugandan authorities or that it will create any difficulties for him upon his return”.
[46] Despite Mr Pidgeon’s valiant attempts to argue otherwise, the matters he seeks to raise are in essence errors of law directed at the evidence and the Tribunal’s view of it. They could have been dealt with on an appeal (if leave were granted).
Should the issues be submitted for review?
[47] Even if the applicant could meet the first hurdle, the issues he seeks to raise are not, by reason of their general or public importance or any other reason, issues
12 S Juss “Judicial Review and the Duty to Give Adequate Reasons” [1986] CLJ 372.
13 R v Secretary of State for the Home Department ex parte Swati [1986] 1 WLR 477.
that ought to be submitted to the High Court for review. The evidence of Dr Wenzel and the issue of the applicant’s fate on return are not matters of general or public importance. The issues Mr Pidgeon sought to raise do not extend beyond D’s individual case. There is no other broader reason to permit a review.
Result
[48] The application for leave to bring judicial review proceedings is dismissed.
[49] The notice of proceeding confirms the applicant is not in receipt of legal aid. Costs should follow the event. Costs to the second respondent on a 2B basis
together with reasonable disbursements for one counsel.
Venning J
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