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 HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
(Mr Justice Elias)

		Royal Courts of Justice Strand London WC2 Friday 21st December, 2001

1. LORD JUSTICE BUXTON: This is a renewed application to this court for permission to apply for judicial review in respect of the refusal of the Immigration Appeal Tribunal to grant permission to appeal from a decision of a special adjudicator. The case has been adjourned on one occasion in this court because when it originally came before this court it was not ready to proceed. It has been restored this morning, and I have had the benefit of written and helpful oral submissions from Mr Burnett, who has taken the case over on behalf of the applicant, and also written submissions from Miss Anderson, who appears for the Secretary of State. In view of what I am going to say later in this judgment, I should record that Mr Burnett was not instructed in this matter until it was adjourned by this court. He did not conduct the case either in front of the special adjudicator or in respect of the written application to the Immigration Appeal Tribunal.
2. In the event, the matter turns on a number of issues of practice that are issues of importance, but it is necessary to say something, indeed necessary to say quite an amount, about the facts.
3. The applicant, Mr Singh, is a citizen of the Republic of India, who was born on 3rd February 1962. He arrived in this country on 3rd May 1999 and, in due course, sought asylum. He based his claim for asylum on the fact that he is a Sikh and a supporter of the Khalistan movement. As a result of those facts, his life was in danger in the Republic of India. He was interviewed on arrival at Heathrow and he claimed there that he had attended a demonstration in 1989, was arrested and sent to prison. He was asked whether that was the last occasion upon which he had been arrested and he said that it was.
4. However, nine days later solicitors who had then been instructed by him sent a typed statement to the Secretary of State saying that the applicant had been confused and unwell at the time of his interview, and had also suffered language difficulties and therefore had not answered the questions that he was asked accurately.
5. The original record of the interview indicated that the applicant had been asked in the Punjabi language, which he said he understood, whether he was fit to continue, and he had said that he was. Nonetheless, attention has been given to the written statement. In that he claimed that he had been detained until the end of 1990 and had been tortured on a significant number of occasions, he said four or five times a day, and that he had thereafter, from 1990 onwards, been arrested on many occasions, the last of them being on 21st April 1999 when he was taken to court on what he described as false charges; and that he was due to reappear on 2nd July. Instead of that he fled the country. All this was advanced to explain a matter that had appeared to those interviewing him to be difficult to explain, that is to say the prolonged delay between the incident in 1989, which was originally put forward as the basis of his claim, and his leaving the country.
6. The Secretary of State considered that there were severe difficulties about the credibility of Mr Singh, not least because of the inconsistency of his accounts. The Secretary of State also took the view that in facing court charges in the Republic of India there was no significant danger of persecution in terms of the Convention, in view of the status of the Indian judiciary; the constitutional safeguards that apply in the Republic of India; and, not least, the existence of an independent and fully competent Bar, from amongst whom the applicant would have free choice of counsel. The Secretary of State therefore rejected the application.
7. The applicant gave evidence before the special adjudicator. He said then that the last occasion upon which he had been arrested was 2nd April 1999, when a group of five persons had been arrested, three of whom had been killed, and one of those, at least, killed because he was involved with the Khalistan National Army. He claimed that that arrest was because the police insisted that he was a militant involved with terrorists. He gave a detailed description of what had happened on 2nd April at the police station, when he said that he was taken to the police station; hit on the soles of his feet with a stick; his legs pulled apart; rollers put on his legs; hands tied behind his back; he was punched, slapped and kicked. He was thereafter released, but in a very weak condition. He left his home village and then eventually came to this country.
8. The special adjudicator pointed out that the evidence of serial arrests given to him by the applicant had been vague in the extreme, and he had not been able to say either when in detail other arrests had occurred or to which police stations he had been taken. The special adjudicator considered the case in considerable detail, being addressed not only by the Home Office presenting officer but also by counsel experienced in immigration work.
9. The case had been certified by the Secretary of State, but the special adjudicator set that certificate aside because he found that there was some evidence that the appellant had been tortured: in the sense that he had been ill-treated by the police before his court appearance in 1989. He emphasised that it was in respect of that incident in 1989 that he set aside the certificate.
10. So far as the substantive appeal is concerned, the special adjudicator formed an extremely unfavourable view of the applicant. At page 13 of his determination he said this:

"I found the Appellant a most unsatisfactory witness. He was prone to chop and change his story. I accept that it would have been far better if he had not been interviewed immediately upon his arrival on 3rd May 1999 after a long flight from India. It would have been better if the interview had been delayed. Having said that, the interviewing officer behaved, in my view, quite properly during the course of the interview. He suspended it, and on more than one occasion asked the Appellant if he wanted to continue with the interview. If the Appellant was so nervous, scared or confused about the interview, then he should have taken that opportunity and not continued with it. He chose to go on. Frankly, I think the version of events he gave at the interview was probably a much more accurate one than that he now seeks to put forward in the two witness statements to which I have been referred.

What I am asked to believe about those witness statements is that they are both incorrect. Both were prepared by solicitors on the instructions of the Appellant. ...

It became abundantly clear during the course of the evidence and particularly the cross-examination of the Appellant ... that there were considerable inaccuracies, putting it charitably in [the second] witness statement."

11. The adjudicator concluded as follows, at page 14:

"I accept that he was arrested in 1989 and badly treated by the police. I also believe on the evidence I have heard, that he was put before a Court of law, and as a result spent nine or ten months in prison. That was not likely to be a remand in custody for that time, and then a release on bail, but much more likely to have been the sentence passed down by the Court in connection with the matters which he was charged with at that time. I do not believe for a minute that those charges put in 1989 would have been left hanging over his head until now, even though he says he has been arrested and taken to Court several times between 1989 and 1999.

I have the gravest doubts about his having been arrested, let alone taken before the Court on any other occasion after 1989.

What I am asked to believe is that in 1999 he was detained by the police for a couple of days, then released on bail, despite charges going back to 1989 still not having been dealt with, and then his being put back before the Court on the 21st April 1989 and being bailed until the 2nd July 1999, and then jumping bail and coming to this country.

I do not believe it."

12. Further, the adjudicator found that even if the appellant were facing charges in India, what he faced in view of the nature of the regime in that country was prosecution and not persecution. He did not accept that, even if the appellant's account had been correct, he himself was at risk of persecution on return.
13. It is clear from the adjudicator's determination that he formed those conclusions, as normally he would be well entitled to do, on the basis of the view that he formed of the appellant's evidence, of its consistency and plausibility, and of the impression that he formed of the appellant as a witness, he having been examined by his own counsel and cross-examined by the Home Office presenting officer.
14. There was, however, also before the special adjudicator a report from a Dr Forrest, who had examined Mr Singh and taken a history from him - which, of course, was no more than what Mr Singh was minded to tell him - but also subjected him to a physical examination. Dr Forrest is a doctor extremely skilled and experienced in this area of practice, including trauma and torture injuries, and he has worked for many years, and more particularly after his retirement, assisting victims of torture. He is therefore not only well placed as a doctor to comment upon physical injuries, but also well placed through his experience as an expert to comment on the particular injuries concerned. He said in his report, at the end of it:

"This man has the demeanor of one who is preoccupied with painful and intrusive memories. He has clear evidence of psychological stress.

He has remarkably few scars on the skin but attributes all of those he has to innocent causes. This appears to add credence to his account since he could equally well have claimed that they had been caused by restraint or beating.

The marked tenderness and pain in the muscles of the thighs and the feet are completely typical of the late after effects of the well-documented techniques of the India police which he describes in convincing detail.

In my opinion, the medical evidence gives strong support to his story of ill-treatment at the hands of the police."

15. In that report Dr Forrest did not distinguish between what might have happened in 1989 and what might have happened in 1999, but I am prepared to accept that it is much more likely that the particular injuries that he describes would have emanated from a recent event rather from one as long ago as 1989. In a supplementary report, which the court has looked at de bene esse, which Dr Forrest produced in November 2001, that is to say many months after either the special adjudicator's hearing or the decision of the Immigration Appeal Tribunal, he makes it clear that he was addressing himself to what he had been told by Mr Singh about recent events; that is to say the 1999 events.
16. The special adjudicator deals with that report in two places in his adjudication. He first turned to it when he was considering the certification question, at page 12 of his adjudication, and recorded, without finally commenting upon them, serious criticisms made by the Home Office presenting officer, in particular that some of the injuries complained of by Mr Singh as caused by the police had not in fact been attributed by Dr Forrest to torture and that, secondly, Dr Forrest's report did not rule out causes other than torture for the condition of which Mr Singh complained.
17. In connection with the substantive appeal, the adjudicator said this at page 15:

"I prefer also Mr Brett's view of the matter that what the Appellant has tried to do in the two statements he made following the interview through his solicitors is to embellish his case so that it becomes much more convincing. I have taken account of all the documentary evidence and have thrown into the balance as it were Dr Forrest's report. Dr Forrest's report does not change my view of the matter. Again, I accept Mr Brett's submissions in that regard."

18. I have already referred to some of Mr Brett's submissions. One in particular that he put forward, and that the special adjudicator did not specifically reject, was that in the circumstances of this case Dr Forrest's report would have to be conclusive in terms of torture before the special adjudicator could accept it. That as stated in broad terms would appear to put the matter too high, but I think it is right to say that the special adjudicator was doing no more than picking up the observation of Mr Brett that I have already referred to that Dr Forrest could not rule out of causes other than that of torture: even though he was of the opinion that torture was the most likely explanation of some, at least, of the injuries that Mr Singh suffered.
19. I would agree with the view of Elias J that it would have been better if the special adjudicator had dealt with Dr Forrest's evidence at greater length. I also agree with him in rejecting a contention made by counsel then appearing for the applicant that there was a particular obligation to go in detail through the terms of Dr Forrest's report. That puts the matter far too high. But on the issue of credibility, which is the first issue on which the special adjudicator rejected the contentions of Mr Singh, Dr Forrest's report might beneficially have been discussed at greater length and the impression not have been created, that Mr Burnett criticised before me this morning, that the adjudicator had dealt with the matter solely on the basis of the applicant's evidence and then, as it were, only brought in Dr Forrest at the end of that review. I do not myself think that that is in fact what happened. When the adjudicator says that he has put Dr Forrest's report into the balance, I am not minded to say that he was not expressing himself accurately. But it would have been better if on the face of the determination there had been more extensive analysis of that point.
20. Accordingly, when appealing to the Immigration Appeal Tribunal it would have been a point perfectly open to the applicant, and possibly one of some force, to complain of that aspect of the special adjudicator's determination and to ask that the Immigration Appeal Tribunal should conclude, either that there had been inadequate reasoning in the determination, or that the special adjudicator should reconsider Dr Forrest's report or itself review the facts of the case in the light of that report.
21. It will be clear from what I have said that none of those would have been arguments of a type that the Immigration Appeal Tribunal readily accedes to, because it rightly regards findings of fact - and this is what we are concerned with - and the handling of the evidence leading to those findings on the part of the special adjudicator as being very much a matter within the good judgement of the special adjudicator. Although the Immigration Appeal Tribunal can differ from the adjudicator on matters of fact and assessment of evidence, it is rightly cautious before it does so.
22. All that said, however, it would have been perfectly proper to raise the question of the handling of Dr Forrest's report with the Tribunal. The great difficulty in this case is that that is not what was done. Despite the fact that Mr Singh was advised by solicitors and by experienced counsel, it is accepted on all sides that no complaint was made to the Immigration Appeal Tribunal about the way in which Dr Forrest's report had been handled. Indeed, Mr Burnett has frankly said this morning that it was never mentioned to them. In the nature of things, it is therefore entirely understandable that the Tribunal would not realise that there was at least a potential and significant complaint with regard to the handling of that material.
23. It was submitted to Elias J (and it is submitted again to me) that this is a case nonetheless where this court should grant judicial review of the Immigration Appeal Tribunal's decision, even though in respect of a matter that was never before it. In that connection, the applicant refers to the observations in this court of Lord Woolf MR (as he then was) in the case of R v Home Secretary ex p Robinson [1998] QB 929, in particular at page 946. There Lord Woolf said that appellate authorities should focus primarily on the grounds and arguments adduced before them, but if there is what this court characterised as "an obvious point of Convention law favourable to the asylum-seeker which does not appear in the decision", leave to appeal or a grant of judicial review should be available. Lord Woolf continued:

"When we refer to an obvious point we mean a point which has a strong prospect of success if it is argued. Nothing less will do."

24. Mr Burnett forcefully submits to me that if this point as to Dr Forrest's evidence were argued it would have a strong prospect of success, and it was therefore "obvious" in terms of the judgment of this court in Robinson. I regret that I do not agree. There are two difficulties about that submission. First of all, it seems to me extremely doubtful whether the Master of Rolls in Robinson intended to extend what already is an exceptional aspect of judicial control of an administrative decision to a case where there was not an obvious point of Convention law in issue, but merely an allegedly obvious point about the process of assessment of fact by a lower court.
25. Secondly, even if that is wrong, I am afraid that I do not understand how it can be said that that this point was "obvious" to the Immigration Appeal Tribunal, when it had no reason at all to focus on the existence of Dr Forrest's report. What Lord Woolf had in mind was a case where the facts were all deployed before the Tribunal and, by incompetence or oversight, a representative had not taken a particular point of law. In those circumstances, the Tribunal was expected to use its own specialist understanding to supplement that fault. That is not this case.
26. Thirdly, I fear that I cannot agree that even if this complaint had been taken before the Immigration Appeal Tribunal, it would reach the level of conclusiveness or certainty in decision of the case before that tribunal that Lord Woolf requires. Although the point is certainly arguable, one does have to bear in mind it is a point about assessment of fact. Although other adjudicators might well have treated Dr Forrest's evidence differently, and might indeed have been persuaded by it, that would still be an exercise that had to be conducted in the context of the actual evidence given to the adjudicator by the applicant: as to which, as we have seen, the adjudicator formed an extremely unfavourable view.
27. I therefore cannot accept that this case falls within the particular licence or extension of the process of judicial review that is to be found set out in Robinson. I would also add that it has always to be remembered that the application to this court is indeed for judicial review and is still subject, albeit with the particular considerations that apply in asylum cases, to the principles of that jurisdiction. In particular, decisions of the Immigration Appeal Tribunal as to permission to appeal to that court are not the subject of appeal to this court, and have been specifically decided by Parliament not to be subject to appeal to this court. They are treated only within the review jurisdiction. I would venture in that connection to refer to some observations of my own, if I may, in the case of R v Secretary of State for the Home Department ex p Arshad, decided in this court on 14th July 2000, at paragraphs 21 and 22 of that report: paragraphs which Miss Anderson was good enough to draw to my attention, I having in fact forgotten that I had so expressed myself.
28. What I said there in my very respectful judgement supplements what was said in Robinson as to the caution that this court must exercise before entering upon the judicial review jurisdiction in respect of matters that have not been ventilated before the Tribunal that it is sought to review.
29. I would therefore dismiss this application, as did the learned judge below, Elias J. I have gone into the matter in considerable detail, more detail than a case such as this would normally warrant, because the court is bound to be concerned at the existence of Dr Forrest's report and of what it may or may not indicate as to what has happened in the past to this applicant.
30. I would have decided this case as I have even if there were not any alternative source of recourse for Mr Singh. But Miss Anderson was good enough to accept that if Mr Singh can substantiate or seek to substantiate a complaint that removal of him to India would be in breach of the European Convention on Human Rights, he can submit a complaint to that effect to the Home Secretary - such complaints being subject either to appeal under section 65 of the Immigration Appeal Act 1989 or to applications for judicial review. As I have said, I have to decide this case within the framework of the jurisdiction in which it is presently pursued. I mention the latter point merely as a footnote.
31. This application is therefore dismissed.
ORDER: Application for permission to appeal refused; assessment of the applicant's community legal funding certificate. (Order not part of approved judgment)