Case No. UKUT-00378-(IAC)

The problem with Judge Chohan’s decision is that, no matter how wrong it may have be en , it is undoubtedly what he intended ; the decision recorded on the grant of permission was manifestly not ‘ clearly at odds with the intention of the judge ’ . As the Court of Appeal held in Bristol-Myers Squibb Company v. Baker Norton Pharmaceuticals Inc and Napro Biotherapeutics Inc [2001] EWCA Civ 414 at [25]: 25. … the slip rule cannot enable a court to have second or additional thoughts. Once the order is drawn up any mistakes must be corrected by an appellate court. However it is possible under the slip rule to amend an order to give effect to the intention of the Court. Paragraph 31 of the Procedure Rules , therefore , of fers no assistance. 13. The appellant [skeleton argument, 17] accepts that, where a judge has exercised discretion regarding the extension of time unlawfully, then judicial review is the appropriate remedy (for an example, see R (on the application of Onowu ) v First-tier Tribunal (Immigration and Asylum Chamber) (extension of time for appealing: principles) IJR [2016]) UKUT 185 (IAC). J udicial review is the only means by which Judge Chohan’s decision to admit the application for permission can be challenged. That remains the case notwithstanding that both the appellant and the Secretary of State agree that the judge was wrong to find that the application had been made in time. As the First-tier Tribunal’s grant of permission has not been disturbed on judicial review, I have proceeded to consider the Secretary of State’s appeal on its merits. Both parties’ representatives made submissions regarding error of law at the initial hearing on 16 October 2020. 14. Th ere is one ground of appeal : At the paragraphs 35-36, the FTTJ states that the appellant failed to answer the questions asked and the therefore the FTTJ decided that consideration of the expert report would be determinative of the claim. However, after having considered points on both sides regarding the expert report, the FTTJ nonetheless are concludes that the appellant’s account is plausible at paragraph 58, even though there was a lack of evidence to support the appellant’s account as noted a t paragraph 57 . The decision of the FTTJ is therefore inconsistent and lacking in reasons especially in respect of why the SSHD lost the appeal. Both parties have a right to know why one party lost and the other won, but that it lacking (sic) throughout this decision. The appellant claims to fear the Rwandan government. Born in Zaire (now the Democratic Republic of Congo (DRC)), he fled to Rwanda in 1995 following the death of his parents. He now holds a Rwandan passport. The appellant has worked for a number of government agencies and joined the World Food Programme ( WFP - an agency of the United Nations) in 2017. In February 2017, the appellant visited the United Kingdom. In September 2017, at his office in Kigali, the appellant claims that he received, apparently in error, an email from a government security agency. The email concerned Rwandan troop movements on the DRC border. The appellant claims that he was alarmed that the UN was aware ‘that these things were happening’ and photographed the email. Over the next few weeks, the appellant became aware that the Rwandan secret service (the Directorate of Military Intelligence - DMI) had become interested in him. He travelled to the United Kingdom on 14 October 2017. Some time between 20-25 October 2017, he learned that a friend (a Mr Bamporiki ) to whom he had sent the photograph of the email and who had ‘ broadcast ’ that troops were about to enter the DRC , had been murdered. The appellant then claimed asylum. 15. The respondent accepts that the appellant worked for the WFP. She also agrees that, if his account is found to be true, then the appellant faces a real risk of suffering harm on return to Rwanda (see First-tier Tribunal decision at [64]). Otherwise, the respondent submits that the appellant’s account is inconsistent and unreliable. 16. The First-tier Tribunal (Judge Cox) [36] agreed ‘with the representatives and believe that my assessment of the expert report will be determinative.’ Judge Cox considers in detail the report of the expert, Dr Joseph Mullen, at [37-54]. He records that the Presenting Officer sought to rely on certain passages of the report in support of his submission that the appellant’s account was implausible. The Presenting Officer noted that the expert had been ‘a little puzzled’ by the appellant’s claim that a highly restricted email should have ‘gone astray’. The Presenting Officer also drew the judge’s attention to the fact that the expert had, despite researching relevant websites, been unable to ‘triangulate’ the death of Mr Bamporiki . Dr Mullen had also not considered it ‘likely’ that, as the appellant claims, the head of the WFP in Rwanda had passed the appellant’s name to the DMI. In the case of each passage of the expert report cited by the Presenting Officer, the judge records the response made by the appellant’s counsel. The judge’s approach throughout is measured and even-handed. 17. At [56], Judge Cox acknowledges that the appeal was ‘difficult to determine’. He found ‘troubling’ the absence of any evidence regarding the murder of the appellant’s friend and that the expert considered it unlikely that any colleague of the appellant at the WFP would have passed the appellant’s name to the DMI . However, at [58] , the judge accepted that the core of the appellant’s account was true and at [59-63] he has given clear and cogent reasons for reaching that conclusion. He noted that the expert had accepted that the DMI may have had agents operating in the office of the WFP and found also that the email had been sent in error. He considered the appellant’s evidence in the wider context of politics in the region (both parties accept that there had been troop movements on the border around the time the email had been sent) and the appellant’s own circumstances ; the judge found that the appellant would not have abandoned his job and good standard of living for the uncertainty of life as a refugee had he not genuinely feared for his safety and he also took into account that the appellant had been born in D R C and was a naturalised citizen of Rwanda ; th at was a relevant factor given the significance of ethnicity in the politics of the region . I reject the respondent’s submission that ‘the decision is lacking in reasons.’ 18. I accept that not every judge would have reached the same findings as Judge Cox on the same evidence. However, that is not the point. Further, I do not consider that the findings of the judge are perverse. Indeed, Mr McVeety, who appeared for the Secretary of State, acknowledged that, on the evidence, there ‘were ways the judge could have allowed the appeal.’ In my opinion, the judge took one such way. He engaged fully with the relevant evidence; his analysis of the expert report , especially those parts which were not obviously favourable to the appellant, is thorough and even-handed . Moreover, the judge did not find in favour of the appellant in the teeth of a negative conclusion from Dr Mullen; the expert unequivocally states at the end of his report [26] that the appellant’s return to either DRC or Rwanda ‘is likely to result in a life-threatening situation.’ Contrary to what is asserted in the grounds, the respondent has been left in no doubt as to why she lost ; ultimately, th e grounds amount to nothing more than a disagreement with findings available to the Tribunal on the evidence . 19. Finally, in his oral submissions, Mr McVeety cast doubt on the use by the judge, when discussing the email, of the phrase ‘I cannot exclude the possibility’. Mr McVeety submitted that the judge appeared to have departed from the appropriate standard of proof. I do not agree and in any event, Mr McVeety acknowledged that this challenge does not appear in the grounds of appeal as drafted. 20. For the reasons I have given, the Secretary of State ‘s appeal is dismissed.