England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE IMMIGRATION APPEAL TRIBUNAL

		Royal Courts of Justice Strand London W2A 2LL
		5th July 1999

LORD JUSTICE STUART-SMITH: I will ask Lord Justice Buxton to give the first judgment.

LORD JUSTICE BUXTON: This is an appeal by Mr Tarlochan Singh, an applicant for asylum, brought by the leave of this court, against a decision of the Immigration Appeal Tribunal dated 22 May 1998, which in its turn allowed an appeal by the Secretary of State from an adjudication on Mr Singh's case by Mr D J Jefferson (a special adjudicator) heard as long ago as 15 January 1997. Mr Jefferson had allowed Mr Singh's appeal against a determination by the Secretary of State in a certification case that Mr Singh had no well-founded fear of persecution were he to be deported and therefore he was not to be granted asylum.

As this court observed on granting permission, it is unusual for an appeal to be brought, as the appeal was brought in this case, seeking to challenge conclusions of fact reached by the adjudicator; but at the same time it is recognised that the jurisdiction of the Immigration Appeal Tribunal extends to such appeals. I shall have to say a little more in due course about the extent of that jurisdiction and the way in which it should be exercised. But first I must say more about the facts of this case.

Mr Singh arrived in this country as long ago as August 1993. He came in a clandestine manner, having been provided, so we were told by Mr Jones, who has appeared for him today, with a passport by an agent who removed that passport as soon as Mr Singh had arrived. He claimed asylum on, or fairly soon after, his arrival in this country. The basis of his claim was that he was or had been a member of the All India Sikh Student Federation (the AISSF) and had been active to the extent of attending demonstrations in favour of there being created an independent Sikh State of Khalistan. The persecution which he said he had already experienced, and which he feared would be repeated if he were returned to India, was by the police force, particularly in the state of Punjab. His evidence in his application to the Secretary of State was that he had in fact been arrested and detained by the police on five occasions between 1984 and 1992, having, however, been released without charge, on both occasions.

He gave evidence before the special adjudicator and added various matters that were referred to by the adjudicator and which are in issue in this appeal, including that on the most recent occasion when he had been arrested he had been actively maltreated by being hung upside down and beaten in a severe way. He gave an explanation about the fact that he had cut his hair, and the occasions when he had done it, in connection with his being identified as a Sikh person. He said that on one occasion when he had been arrested in 1988 a gun had been found in his possession but nonetheless he had not been charged with any offence. He said that he had left India because of that police harassment in 1993.

The Secretary of State in his refusal letter adduced various reasons why he did not believe that Mr Singh's claim that he would be persecuted was well-founded. They included Mr Singh's clandestine entry into this country; the fact that he had not claimed asylum in either of the countries through which he had passed on leaving Delhi; and the fact that he had left India freely and that he had never been charged on being arrested. The Secretary of State also included in his refusal letter a substantial account of the Secretary of State's view of the current human rights position of Sikhs in India, and more particularly in the Punjab, noting that there had been an encouraging reduction in the amount of militant unrest in that area with a consequent reduction in police intervention. The Secretary of State also drew attention to the important fact of the independent and properly constituted judiciary in India and the fact therefore that, if Mr Singh were to be arrested for any offence or alleged offence, he could expect a fair trial.

The special adjudicator, after having set out some or all the material that I have referred to together with other matters, then directed himself towards four questions; the first was findings of fact that he made; the second was his assessment of the credibility of the applicant, those two matters to some extent running into each other; the third was whether the applicant feared to return to India for a Convention reason; and the fourth was whether that fear was well-founded.

So far as findings of fact and credibility were concerned, the adjudicator accepted on the applicant's part that, on the occasion when he had been arrested carrying a pistol, he had escaped charge through bribery; and he also accepted that the applicant had in fact been beaten. In dealing with the credibility of the applicant, the special adjudicator drew attention to his own assessment of the applicant's demeanour when giving evidence before him, saying that he considered that the applicant had given his evidence in a composed and thoughtful manner. Although he was sceptical about the applicant's account of the more extensive beatings that he had incurred, particularly during his detention in 1984, lasting allegedly five days, the special adjudicator said this:

"I accept that he was beaten but I do not know how severely."

As to the matter of shaving his beard and cutting his hair, and the allegedly inconsistent accounts that he had given of that at interview and before the adjudicator, the adjudicator considered in brief terms, but nonetheless quite clearly, that that discrepancy did not undermine the applicant's general credibility nor the fact that he had entered this country illegally.

The adjudicator then turned to the question of whether the applicant was afraid to return to India. He had been pressed on this in interview and otherwise, but the adjudicator said this at page 12 of his adjudication:

"Having observed the Appellant give evidence and having given careful consideration to the information made available to me, I consider that the Appellant is afraid to return to India."

The adjudicator also found that what the appellant feared was not only arrest but also beating should he return and that was because the appellant had support for an independent state of Khalistan; that being therefore a Convention reason for persecution.

The adjudicator then turned to the issue that is of central importance in this case, whether the applicant's fear was well-founded. He set out a passage from the Amnesty International Report 1996 about India generally, which indicated, in the view of Amnesty in that year, widespread torture of detainees throughout India. The adjudicator also mentioned specific reports of Amnesty, one of which considered that the police in the Punjab were still not subject to control by law. He also referred to a United States Department of State report, "Indian Human Rights Practices 1995", which bore out the diminution of violence and abuse in the Punjab, without saying that it had finally terminated.

Of importance to the adjudicator was evidence that had been given by a Dr Rai in another case concerning a Sikh applicant (Charanjit Singh) before the tribunal in, I think, 1997. The adjudicator had a report from Dr Rai that purported to be specifically about the case of this applicant, it having been sought by his advisers. That report is not, I have to say, particularly satisfactory. It says that it addresses itself specifically to the circumstances of the applicant, but it deals mainly in broad terms with the general position in the Punjab and not with the particular circumstances of the applicant. It ends in summary at paragraph 28 by saying.

"28) if it has been accepted that the appellant has been persecuted and if it has been accepted that he will face persecution again, then it is not safe to send him back to India particularly under the present circumstances when the new government's policies are likely to create discontent in the region again."

The adjudicator did not rely on that report but on an account of the evidence given by Dr Rai before the tribunal in the case of Charanjit Singh, to which I have already referred. That tribunal had heard Dr Rai give evidence and presumably be cross-examined and it had said:

"The tribunal found Dr Rai to be an impressive witness and found his evidence compelling."

That was quoted by the adjudicator. He then quoted various parts of Dr Rai's evidence about the general position in the Punjab, and took particular note what Dr Rai had said about persons who had been placed on a police list. The adjudicator said this of Dr Rai's evidence:

"He stated that anyone who was placed on the `police list' is regarded as a force of future militancy and is therefore under threat."

That was the most important piece of evidence that the adjudicator relied on for his finding which he made, that the appellant's fear was indeed well-founded, and he so found. That finding was appealed by the Secretary of State.

The Immigration Appeal Tribunal addressed the matter, as had the special adjudicator, under the three heads of credibility, the existence of fear on the part of the applicant and whether that fear was well-founded. They reminded themselves that the jurisdiction they were exercising was to some extent an unusual one, because it involved an appeal against findings by a lower court which were effectively findings of fact.

It is agreed before us that guidance as to how such an appeal should be pursued is to be found in the specific context of immigration in the case of Borissov v. Secretary of State for the Home Department [1996] Imm AR 524 in the judgment of Lord Justice Hirst at page 535. The Lord Justice confirmed that conclusions of the fact by special adjudicators could be reviewed by the Immigration Appeal Tribunal but went on:

"... in accordance with general principles, the Immigration Appeal Tribunal will naturally be most reluctant to interfere with a finding of primary fact by the special adjudicator which is dependent on his assessment of the reliability or credibility of a witness who has appeared before him."

In the final analysis however an appellate tribunal not only can but should reverse a finding of fact if it is unsustainable.

The findings of fact made by the special adjudicator in this case fall into two different categories. The finding as to Mr Singh's credibility and as to his subjective belief depend, or depend to a significant extent, upon the evidence that he gave to the adjudicator and which the adjudicator was able to assess. The question of whether the fear that he asserted of what would occur if he were returned to India was well-founded is a matter of objective analysis of the situation in India at the moment, against the background of what has happened in the past, and, as is common in such enquiries, is necessarily conducted largely or entirely by assessment of written reports. The approach to that question does not fall under the cautionary words of Lord Justice Hirst to the same extent that the first two questions do, because little or nothing of the argument in this case on whether the fear was well-founded had turned upon any assessment of the credibility of a witness who had given oral evidence.

Dealing with the credibility of the applicant and the conclusion reached by the special adjudicator, the Immigration Appeal Tribunal criticised the adjudicator for not giving sufficient reason or account of why he had not been moved by the alleged discrepancies in the applicant's evidence and criticised the finding, which I have already set out, that the applicant was beaten - "but I do not know how severely" - as being unclear and one for which no reasonable basis had been given. The Immigration Appeal Tribunal then said this:

"It appears to us that, in reaching a finding of credibility, the Special Adjudicator did not take full account of all the evidence, weigh it up, or make a clear finding on it, and we hold that, in making a making which, as we see it, is clearly against the weight of the evidence, his Determinations perverse; that being the meaning of `perverse' in the judicial sense."

I have to say with respect that it might - and I say only might - be a criticism of the way in which the special adjudicator set out parts of his determination that it did not go into the attack on Mr Singh's evidence and credibility as fully as some adjudicators might have done. That however is a far cry from saying that for that reason, or for any other, his determination can be said to be perverse. The special adjudicator was quite clear that an important part of his analysis depended on his view of the applicant as a witness and he made that clear in two passages that I have already read.

He was entitled to take into account the view that he had formed of the applicant's reliability and truthfulness when he was assessing the relevance and force or otherwise of the various ways in which his story was said to be either implausible or inconsistent with what he had previously said. Similarly, he was entitled to take that into account when considering any explanation that the applicant gave, for instance about why he had not been arrested when found with a gun or when and why he had shaved off his beard.

The approach of the Immigration Appeal Tribunal, I have to say with respect, to some extent presents the matter in a way that undermines and gives insufficient weight to the adjudicator's assessment of Mr Singh as a witness. To complain that no reasoned basis was given for preferring Mr Singh's evidence on those points really misses the point. The adjudicator was entitled to say that he accepted Mr Singh's evidence because, looking at the case as a whole, he found it credible. So far as reasoning is concerned, it is difficult to see how much further he could have gone. Certainly, in my judgement, the Immigration Appeal Tribunal was wrong to say, for the reasons they gave, that the conclusion was against the weight of the evidence or was perverse. They were wrong to criticise or differ from the adjudicator on that ground.

This point may make very little difference in the final determination of this appeal because the Immigration Appeal Tribunal did accept from within Mr Singh's evidence that he had been detained five times between 1984 and 1992 and that he had been beaten on all those occasions, despite the fact that he had been released without charge. That is the central feature, so far as Mr Singh's own experience is concerned, of his claim to fear persecution. As I have said, it was apparently accepted by the Immigration Appeal Tribunal, even though that tribunal saw fit to criticise other parts of the adjudicator's assessment.

I pass on to the linked questions of whether Mr Singh had a fear of persecution for a Convention reason and whether that fear was well-founded. In addressing the first of those questions of Mr Singh's fear, the Immigration Appeal Tribunal set out its acceptance or finding that I have already indicated, that Mr Singh had been arrested and beaten on five occasions. But it drew attention to the fact that that had happened when, on the documentary evidence before it, the authorities' concern about Sikh separate terrorism had been at its height. They then cited a report by the Canadian Immigration Refugee Board put before them by the Secretary of State that suggested that now a person such as the respondent would in fact have less to fear from the Punjab police. They then went on to say that they had examined the documentary evidence and were not satisfied, in the light of the human rights situation in the Punjab, that the conclusion reached by the special adjudicator that Mr Singh had a fear of return was well-founded. That approach also, I have with respect to say, does not give proper weight to, and indeed does not analyse properly at all, the basis upon which the adjudicator reached that conclusion. He reached that conclusion principally by the assessment he made of Mr Singh's present subjective state of mind: that is the relevant question when the enquiry is whether the applicant has a fear of return.

The documentary evidence about what is the objective position in the country in question is, of course, relevant to the third question of whether the fear is well-founded. But it is not in my judgement relevant, or at least of very little assistance, on the second question of the actual fear in the light of evidence given by the applicant and accepted by the adjudicator. In that respect also, therefore, I have to differ from the approach taken by the tribunal.

However, crucial in this case - even if the tribunal should not have differed from the adjudicator on the first two questions - was the third question: that is to say whether the fear was well-founded. I have already set out the broad reasons that the special adjudicator relied on, including the evidence of Dr Rai to be found in the case of Charanjit Singh. There was also before the Immigration Appeal Tribunal a series of documentary reports, some but not all of which had been before the court below. They included the Canadian report submitted by the Secretary of State, to which I have already referred, and also, I think, three reports emanating from expert observers of the position in the Punjab, which had been put forward by the industry of those assisting Mr Singh in the case. The tribunal recited that it had received all these and had considered them carefully.

Turning to the question of the adjudicator's conclusion on whether the fear had been well-founded, the Immigration Appeal Tribunal said this with regard to Dr Rai's evidence: "When the Special Adjudicator, then, goes on to look at the evidence of the `well-foundedness' of the Respondent's fear, and, in doing so, relies mainly on what a witness in a previous Determination of the Tribunal, in Charanjit Singh had said, as we see it, without Dr Rai's having given evidence before him, and not having been subjected to cross-examination, that evidence cannot have any weight attached to it, and, indeed, in a number of other more recent Tribunal decisions, notably Jaswinder Singh, Parmar and Jasvir Singh the Determination in Charanjit Singh has, specifically, not been followed and the reasoning in it stated to be untenable.

In addition, we are satisfied that, while Dr Rai has a certain knowledge of the situation in the Punjab, his evidence is not first-hand evidence, and is, clearly, contradicted by other evidence of experts who have recently visited the Punjab and India, generally, from where Dr Rai has been excluded.

In our opinion, and having compared all the opinions of the experts, both academic and those who spoke from first hand experience, we are not satisfied that Dr Rai's evidence, without the benefit of its having been subjected to cross-examination, ought to have been relied upon by the Special Adjudicator, and we, having compared his more recent reports before us, with all the other evidence before us, do not find it reliable. In our view, we, respectfully, agree with the Tribunal Determinations in Jasvir Singh and Jaswinder Singh and hold that Charanjit Singh should not be followed."

They say that they have looked carefully at all the evidence, that the situation in law is that it is open to them to come to their own conclusions and, on the examination of the evidence, to reverse the special adjudicator's findings, although the power will be used sparingly. They then say this:

"... applying these principles to the present appeal of the Secretary of State, and referring to what we have stated above, with regard to the findings by the Special Adjudicator as to the credibility of the Respondent, his failure to come to reasonable conclusions on all the evidence before him, his failure to take full account of the evidence and to weigh up that both for and against, and his reliance on evidence placed before the Tribunal, without that evidence having been tested in cross-examination before him as to its reliability, we find that the Determination of the Special Adjudicator cannot be upheld and that we are entitled to conclude that his findings are unsustainable."

They therefore allowed the appeal.

There are a number of respects in which this reasoning of the tribunal cannot, in my judgement, be upheld. Firstly, excessive weight appears to have been placed by the tribunal on the fact that Dr Rai's evidence had not been subjected to cross-examination and had not been given viva voce. That would be a forceful criticism were Dr Rai giving evidence, as it were, simply on a matter of primary fact. But Dr Rai was put forward as an expert, just as the authors of all the other documents before the tribunal were put forward as experts. In the way in which this sort of inquiry is necessarily conducted in front of a tribunal, it is only rarely going to be the case that evidence is given by persons actually appearing in front of a tribunal rather than by reference to the reports of persons of greater or lesser weight - Amnesty International, the United Nations Commission on Refugees and the Canadian body used in this case. It was, therefore, not sufficient simply to reject Dr Rai because he had not been cross-examined.

Secondly, the tribunal appears, with respect, to have confused the effect of the decisions in the cases that it referred to (Jaswinder, Parmar and Jasvir) with any undermining of Dr Rai's evidence shown by the conclusions in those Tribunal decisions. Mr Jones has taken us carefully through those three decisions and it is to be noted, first, that they are concerned with a different question from that in our case; secondly, they are concerned with the question of internal flight, which entailed findings by the tribunals of a danger of persecution; and, thirdly, whether or not it is right to say that they did not follow the decision in Charanjit Singh, it is not possible to find in those determinations criticism of Dr Rai's evidence of an order that significantly undermined the favourable view of his evidence, heard after cross-examination, that had been adopted by the tribunal in Charanjit Singh.

In my judgement, therefore, those reasons given by the Immigration Appeal Tribunal for saying that the adjudicator was plainly wrong, as they had to say, to follow the view of Dr Rai were not well-founded. The tribunal went on, as I have already indicated, to say that they preferred the evidence of other experts or reports to that of Dr Rai. The tribunal was clearly justified in embarking on that inquiry. Once it had concluded that it should review the factual basis upon which the adjudicator reached his conclusion, it was open to the tribunal to review all the matter that was before it and to form its own view. The complaint as to that part of the tribunal's exercise, however - which has been forcefully put before us by Mr Jones - is that in fact the tribunal did no more than say that it was not satisfied that Dr Rai had been reliable and thus that the adjudicator's view had been reliable, and did not properly address the question that remained before it, if it was going to make finding of fact, that is to say, whether this applicant, Mr Singh, had a well-founded fear of persecution.

Mr Jones said that his fear remained well-founded even on the evidence before the tribunal, because Mr Singh was what was called in some of the reports a "history-sheeter", that is to say a person with a previous record of involvement with the police in the Punjab and somebody who would be known to the police and liable to be rounded up by them. The evidence, Mr Jones argued, even that put before by the Secretary of State, indicated that, while general persecution in the Punjab had much reduced, there was still a danger to persons who were in Mr Singh's position, persons previously known to the authorities. He took us through the evidence in some detail. I will not go through it in the same detail but simply say that the reports Mr Jones put before us indicated a view on the part of persons with or professing immediate knowledge of the situation in the Punjab, first, that people even in Mr Singh's position were still liable to be rounded up from time to time; and, secondly, that, because of the conditions in which persons were detained in India and the way in which the police there went about their business, there was a significant danger of their not merely being rounded up but also beaten - that which had, allegedly, happened to Mr Singh previously - even though they might quite speedily be released.

Looking as carefully as one can at the Canadian report on which the Secretary of State relied, it is not self-evident that its findings exclude that possibility. True it is that a clear distinction is made between persons of significant interest to the authorities and others, possibly including "history-sheeters". But I am not, as at present advised, satisfied that that distinction is sufficiently clear for it to be plain that Mr Singh would be in no danger.

I have gone into the details of the evidence in this appeal to an extent that is in some repects inappropriate for an appellate court. I have done so because the real question at the end of the day in this appeal is whether we can be satisfied on the material that is before us that, when it came, as within its jurisdiction it legitimately could, to make its own decision on this question, the Immigration Appeal Tribunal sufficiently addressed the evidence and sufficiently addressed the issue - that is to say, Mr Singh's on personal situation - for it to be clear to this court that it had adopted the proper approach to that material.

The Immigration Appeal Tribunal certainly did not reason the matter out in the way that Mr Kovats for the Secretary of State told us, could be done on the basis of the material he had put before that tribunal. They refer to the Canadian report in the passage that I have already read, as I would think mistakenly, in connection with Mr Singh's subjective fear, but nonetheless may be taken to have it in mind also when they came to the question of the relationship between Mr Singh's particular position and the objective situation within the Punjab. Nonetheless, reading the adjudication as best I can and, I hope, giving due weight to the assumption that the court would have well in mind all the matters that I have addressed, I for my part cannot be satisfied that, on the face of the judgment before us, the Immigration Appeal Tribunal have with sufficient clarity - bearing in mind particularly that this is an immigration case - addressed the precise issue that it had to address, that is to say the position of Mr Singh in the particular circumstances existing in the Punjab. More demonstration was required, in my judgement, first of all of the way in which the tribunal formulated the question before it and, secondly, as to the way in which it approached the evidence.

I for my part, therefore, feel compelled to allow this appeal to the extent of remitting the appeal from the special adjudicator back to the Immigration Appeal Tribunal for reconsideration. I hope it will be clear that I am not in any way saying that the tribunal was precluded from exercising the jurisdiction it did over the question of well-founded fear; or came to a conclusion that was necessarily incorrect. But the conclusion that it has reached is, in my judgement, not sufficiently reasoned for it to be safe for this court to uphold it.

For those reasons, therefore, I would allow this appeal on those terms and remit the determination of the appeal from the special adjudicator to the Immigration Appeal Tribunal to be reconsidered in the light of the judgments in this court.

MR JUSTICE RATTEE: I agree.

LORD JUSTICE STUART-SMITH: I also agree.

Order: Appeal allowed with costs; costs to be assessed.