R. v Secretary of State for the Home Department, ex p. Packeer

In asylum appeals, anxious scrutiny and the duty to detect obvious risks of injustice do not require the Immigration Appeal Tribunal to search for points never raised before either tribunal. An omitted ground is not necessarily an absolute bar to judicial review, but remains relevant when assessing the reasonableness of refusing leave. The applicant bears responsibility for placing relevant country material before the Special Adjudicator. The disclosure regime in Asylum Appeals Procedure Rules 1996 rule 23 does not impose an impossibly high standard of appellate review.

The applicant, a Sri Lankan citizen, sought asylum after alleging detention and ill-treatment by the authorities. The Secretary of State refused the application. The Special Adjudicator accepted much of his account but found no real risk of persecution on return to areas outside LTTE control. The Immigration Appeal Tribunal refused leave to appeal on grounds challenging the weight of the evidence.

Mr Justice Dyson refused leave to apply for judicial review on 13 May 1996. On renewal, the applicant relied on significant changes in the situation in Sri Lanka between the Secretary of State’s refusal letter and the Special Adjudicator’s determination. The material had not been placed before the Special Adjudicator or the Immigration Appeal Tribunal. The central issue was whether the appellate structure was required to identify and address that unraised point.

1. Application refused. The Court of Appeal unanimously refused the renewed application for leave to apply for judicial review. The order was application refused, with legal aid taxation for the applicant.
2. The court declined to treat the failure to raise the proposed ground before the Immigration Appeal Tribunal as an absolute procedural bar. It assumed the issue in the applicant’s favour and did not dismiss the application in limine. The omission nevertheless remained relevant to the general assessment of whether the Tribunal’s refusal of leave was reasonable.
3. The country material relied upon had not been placed before the Special Adjudicator. Since the burden of proof lay on the applicant, it was his responsibility to draw relevant material to that decision-maker’s attention. The court could not conclude that the Tribunal acted unreasonably by failing to address material which had not been raised below.
4. The court took into account the high standards of fairness and anxious scrutiny relied upon by the applicant, including the authorities of Thirukumar, Bugdaycay and Sandralingam: [1989] Imm. AR 402, [1987] AC 514 and [1996] Imm. AR, CA. It also considered the Handbook for Determining Refugee Status, the Wilson Report and rule 23 of the Asylum Appeals Procedure Rules 1996.
5. The appellate structure must remain alert, including of its own motion where necessary, to an obvious risk of injustice caused by inadvertence or ignorance. That obligation does not require the Immigration Appeal Tribunal to comb through a Special Adjudicator’s determination for points which were not brought to its attention and were not raised before the Special Adjudicator. Imposing such a duty would create intolerable burdens, delay and unnecessary hearings. Lord Justice Saville and Lord Justice Otton agreed.

1. Court of Appeal (Civil Division) — On 16 October 1996, refused the renewed application for leave to apply for judicial review.
2. High Court — Mr Justice Dyson refused leave to apply for judicial review on 13 May 1996.
3. Immigration Appeal Tribunal — Refused leave to appeal on 14 August 1995.
4. Special Adjudicator — Dismissed the applicant’s asylum appeal on 31 July 1995.
5. Secretary of State for the Home Department — Refused the application for political asylum by letter dated 15 July 1994.