Case No: C5/2008/1230
Neutral Citation Number: [2008] EWCA Civ 1063
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE ASYLUM AND IMMIGRATION TRIBUNAL 
[AIT No: AA/00324/2007]
Royal Courts of Justice
Strand, London, WC2A 2LL

Date: Friday, 19th September 2008

Before:

LORD JUSTICE MAURICE KAY
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Between:

	SL (ZIMBABWE)
	Applicant	
	- and -		
	
SECRETARY OF STATE FOR THE HOME DEPARTMENT	
Respondent	

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THE APPLICANT APPEARED IN PERSON.
THE RESPONDENT DID NOT APPEAR AND WAS NOT REPRESENTED.

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Judgment
Lord Justice Maurice Kay:

1.	This is a renewed application for permission to appeal, permission having been refused on the papers by Keane LJ.  The applicant is a citizen of Zimbabwe.  He came to this country on 20 September 2006 with a student visa.  He claimed asylum in this country on 1 November 2006.  Although his entry was said to be in order to pursue a course at Loughborough University, he in fact never took up that course.  His asylum claim was rejected by the Secretary of State.  He appealed to the AIT but, following a hearing on 22 February 2007, Immigration Judge Khan dismissed that appeal.  In short, the immigration judge considered that the applicant’s account lacked credibility.  The applicant sought reconsideration essentially on the ground that Immigration Judge Khan had been biased against him.  A senior immigration judge made an order for reconsideration with a degree of reluctance, considering that the allegation of bias ought at least to be considered.  The matter then came before two senior immigration judges on 23 November 2007 for reconsideration, specifically on that issue of bias on the part of the first immigration judge.  On 23 November 2007 the applicant was not present and was not represented.  Nevertheless the tribunal proceeded to reconsideration but came to the conclusion that Immigration Judge Khan had given a reasoned decision for rejecting the applicant’s account, and the senior immigration judges were unimpressed with the allegation of bias.

2.	It is against that decision following the hearing in his absence that the applicant now seeks permission to appeal to this court.  His first ground of appeal relates to the decision of the senior immigration judges to proceed in his absence on 23 November.  It is clear that the explanation for his absence is that, until about 2 November, he had been living at his sister’s address in East Ham and that is the address that was known to the tribunal and is no doubt the address to which the notice of the hearing on 23 November was sent.  The applicant tells me that his sister had relocated on 2 November to Canvey Island and he went with her, leaving her husband at the house in East Ham.  When the applicant sought leave to appeal to this court from the AIT, Senior Immigration Judge Southern found that the notice of hearing had been sent to the address indicated on the application, and whilst the applicant had now moved to a different address without informing the tribunal, the tribunal had served the notice of hearing correctly and, applying paragraph 56 of the AIT Procedure Rules 2005, the tribunal had been entitled to proceed in the absence of the applicant.  It seems to me that no arguable error of law arises out of that.  The tribunal did precisely what the Rules entitle it to do in the circumstances that had arisen.  The fault was that of the applicant in not informing the tribunal of his change of address.

3.	The remaining proposed grounds of appeal seek to take issue one way or another with the adverse findings made by Immigration Judge Khan and affirmed by the senior immigration judges on reconsideration.  As I have said, the failure of the claim before Immigration Judge Khan was based on a rejection of the applicant’s account because Immigration Judge Khan found him to be lacking in credibility in important respects.  Those important respects and the reasons supporting them are set out between paragraphs 13 and 19 of Immigration Judge Khan’s decision.  They begin with the immigration judge placing reliance on the fact, as found by him, that the applicant had made a dishonest application for a student visa, having had no intention of taking up a place at Loughborough University.  They then continue with a finding that the failure to apply for asylum between arrival on 20 September and the eventual application on 1 November also seriously damaged the applicant’s credibility.  That was a finding which the immigration judge was entitled to make, indeed required to make in the absence of persuasion to the contrary under section 8 of the 2002 Act.  The immigration judge then pointed to a number of ways in which he considered that the applicant had exaggerated or fabricated his evidence.  Essentially, what the applicant seeks to say to me is that the immigration judge got it wrong because he misunderstood the way in which the case was being put and he proceeded to make findings which were in fact not justified on the evidence that had been adduced before him.

4.	In this court, in the circumstances of this case, that is an impossible submission to sustain.  The immigration judge gave his reasons.  I have referred to his reasons about the false application for a student visa and the delay in applying for asylum; some of his other findings of exaggeration or fabrication were based on discrepancies between the original interview or statement on the one hand, and the evidence as amplified in cross‑examination and in questions from the judge on the other hand.  In my judgment it is simply not arguable that this reasoned decision is legally flawed.  

5.	There are before the court today essentially two applications.  The first is for an extension of time because the application for permission to appeal was not made in a timely fashion.  It was filed on 28 May.  The deemed date of service of the decision of the senior immigration judges was 6 February of this year.  The time within which to seek permission to appeal is 14 days, in other words by 20 February.  The application is therefore out of time by over three months.  The applicant proffers an explanation for that: essentially the explanation is that he was trying to get legal representation and by the time that he had an offer of legal representation he could not afford the fees that were demanded.  There is a document dated 19 March confirming that he was instructing legal representatives on that date.  However, that in itself was a month out of time and another two months were to elapse before the present application was made.  I find the reasons proffered for that delay to be somewhat desultory and I am not impressed by them, and because of that I refuse an extension of time.  

6.	I make it clear that if I had come to the conclusion that I thought that the applicant had a real prospect of success in any appeal, by reference to the Refugee Convention or on human rights grounds, I would have extended time, notwithstanding his earlier dilatoriness.  However, for the reasons that I have given I find that he does not have a real prospect of success upon any substantive appeal.  The task of this court is simply to investigate the possibility of error of law on the part of the AIT.  It is not the task of this court itself to assess the evidence and come to a view as to credibility.  That was the task of the AIT.  It was done in a reasoned and appropriate fashion, and in my judgment any appeal would be bound to fail.  

7.	Accordingly, for all of those reasons I refuse permission to appeal.

Order: Application refused