Morina, R (on the application of) v Immigration Appeal Tribunal

In an asylum case, an adjudicator must resolve material tensions in the evidence. Where important evidence is referred to without express rejection, yet the determination reaches a conclusion inconsistent with it, the apparent inconsistency may justify permission for judicial review. This is particularly so where country material provides a possible basis for the feared persecution which the determination does not adequately address. The court may remit the matter for a full hearing rather than determine the asylum claim itself.

The applicant, an ethnic Albanian Catholic from Kosovo, claimed refugee status on the basis that he and his family might be persecuted because his brother was perceived to have collaborated with Serbian forces. The Secretary of State refused the asylum claim. A special adjudicator dismissed the applicant’s appeal on 18 December 2000, and the Immigration Appeal Tribunal refused permission to appeal on 21 February 2001.

Permission to apply for judicial review was refused by Stanley Burnton J on the documents and, after an oral hearing, by Sir Richard Tucker. The applicant renewed his application before the Court of Appeal. The central issue was whether the adjudicator had adequately resolved apparent tensions between accepted or un rejected evidence and her conclusion that the applicant had not been targeted and faced no particular risk on return.

The Court of Appeal allowed the renewed application. Lord Justice Simon Brown granted permission and remitted the matter for a full hearing on notice in the Administrative Court. The order did not determine whether the applicant was entitled to refugee status.

1. The adjudicator had accepted that the applicant’s brother was killed, but was not satisfied that ethnic Albanians had killed him because they suspected collaboration. She concluded that the applicant had left Kosovo because Serbian troops were forcing Kosovans from their homes and that he faced no particular risk from Serbs or ethnic Albanians.
2. The court’s initial impression was that the adjudicator had implicitly disbelieved much of the applicant’s account. However, if that was her conclusion, she should have stated it expressly. Her reference to material aspects of the evidence without discounting them left an apparent tension between those matters and her clear overall conclusions.
3. The country material, including the UNHCR update and a Radio Free Europe report, provided a possible basis for concluding that Kosovo Catholics had either collaborated with Serbian forces or were perceived by ethnic Albanians to have done so. That evidence made the unresolved tension sufficiently arguable to require fuller examination.
4. The matter was therefore remitted for an expedited full hearing. The order included a public funding assessment of the applicant’s costs.

• Court of Appeal (Civil Division): On the renewed application, permission was granted and the matter was remitted for a full hearing on notice in the Administrative Court.
• Administrative Court: Permission to apply for judicial review was initially refused on the documents by Stanley Burnton J and was refused after a hearing on notice by Sir Richard Tucker.
• Immigration Appeal Tribunal: Permission to appeal was refused on 21 February 2001.
• Special adjudicator: The applicant’s asylum appeal was dismissed on 18 December 2000.