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

An application for permission to appeal may be dismissed as an abuse of process where it is wholly without merit. Formulaic assertions that evidence, law or country conditions were not considered do not constitute proper grounds of appeal, particularly where the underlying decision rests on adverse credibility findings which the proposed grounds fail to address.

Mr Rajendra Gurung sought permission to appeal against Lindsay J’s refusal on 20 February 2004 of permission to apply for judicial review of the Immigration Appeal Tribunal’s refusal of permission to appeal. The Tribunal’s decision concerned an adjudicator’s dismissal of an asylum appeal after the Secretary of State had refused the asylum claim. Richards J had earlier rejected the judicial review application on paper, finding it out of time and unarguable. The central issue was whether the proposed grounds disclosed an arguable challenge, given the adjudicator’s adverse credibility findings. The appellant did not attend the Court of Appeal hearing.

Lord Justice Brooke dismissed the application for permission to appeal.

1. The adjudicator had found the appellant substantially untruthful, unreliable and evasive. The Immigration Appeal Tribunal refused permission because the proposed challenge concerned credibility and the adjudicator had good reasons for rejecting the appellant’s account.
2. The judicial review grounds did not engage with the central difficulty identified by the Tribunal: the adjudicator did not believe the appellant. The fact that solicitors were blamed for delay did not cure that deficiency.
3. The repeated formulaic assertions that documentary evidence, relevant law and country conditions had not been considered were not proper grounds of appeal. The court had already made that position clear in this class of case.
4. In the circumstances, the application represented an abuse of the process of the court and was totally without merit. It was dismissed.

• Court of Appeal (Civil Division): dismissed the application for permission to appeal on 10 June 2004.
• High Court of Justice, Administrative Court: Lindsay J refused permission to apply for judicial review on 20 February 2004. Richards J had rejected the application on paper on 16 October 2003.
• Immigration Appeal Tribunal: refused permission to appeal on 20 April 2003.
• Adjudicator: dismissed the appeal against refusal of the asylum claim on 17 February 2003.
• Secretary of State: refused the asylum claim on 6 September 2002.