England and Wales Court of Appeal (Civil Division) Decisions

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

		Royal Courts of Justice Strand London WC2 Wednesday, 21st February 2001

1. LORD JUSTICE HENRY:I will ask Lord Justice Buxton to give the first judgment.
2. LORD JUSTICE BUXTON: This is an appeal from a determination of the Immigration Appeal Tribunal in October 1999 in the case of an applicant, Mr Gurdial Singh, who is a citizen of India and, more particularly, a former resident of the Punjab.
3. Permission to appeal was granted by myself on paper on one point only - that is to say, in relation to the handling by the Immigration Appeal Tribunal of certain additional items of evidence that the applicant wished to put before it. Since that permission was granted, however, the case has come into the hands of Mr Manjit Gill QC, who has taken a new and fresh look at the matter. Before us today Mr Gill has sought to extend the complaints that he would wish to make of the special adjudicator and the Immigration Appeal Tribunal's handling of the matter by way of additional grounds of appeal, some of which were before me originally in some form or other and were rejected by me, some of which seem to me to be entirely new. Without going into that as a technical application to extend or for permission, it has been convenient for Mr Gill to develop the whole matter before us, which of course he has done with his normal detailed attention to his client's interests and position, and I shall in this judgment endeavour to address all the matters that Mr Gill raised, going beyond those upon which permission was originally granted.
4. There are disputes, to some extent, as to the history of this matter, but I will first of all set out the facts upon which there is broad agreement. Mr Gurdial Singh was born in April 1945. He came to this country in March 1996. He did not claim asylum on arrival. His explanation for being here was originally that he wished to attend the wedding of his daughter. He is a married man and his wife and two of his three children still live in India, as I understand it, in or near his original home location, at a village called Chitti. The third daughter lives in the United Kingdom. Although Mr Gurdial Singh came here to attend her wedding, his real motive, as he has maintained, was to flee from persecution that he feared in the Punjab and, as the case was developed, more generally in India.
5. The background is that in 1984, when there were, notoriously, troubles in India so far as the Sikh community was concerned, he was the manager of a Gurdwara, which I understand to be a temple or religious building associated with the Sikh religion. He was, therefore, in that capacity, as Mr Gill pointed out, someone who was associated with what I will call for the moment Sikh affairs in a way that an ordinary Sikh person might not be thought to be. That being, as I have said, a time of problems for the Sikh community, the military surrounded that building and Mr Gurdial Singh was taken prisoner, questioned, accused of murder and kept in custody, where he was, according to his account, maltreated. He was released when no evidence was offered against him.
6. He was then on other occasions, according to his evidence, detained in respect of charges of robbery, incitement to violence and other offences. This caused him to be, as he claimed, on a list of persons known to be leaders of the Sikhs and capable of leading others in opposition to the State. Other allegations were made against him, but it appears that none of them were pursued to trial or, if they were, he was acquitted of any offences.
7. He had on occasion, he said, led demonstrations complaining about police activity. The last occasion when he came up against the authorities, if I may use that expression, was in 1992, when, as vice-president of his local village council, he led a protest against the killing of a number of persons. He was again arrested and tortured, as he said, but was then released by reason of the representations made of the police force by that village council.
8. A disturbing event occurred after that time when a colleague was shot and killed, allegedly by three plain clothes policemen, and from that point onwards - or, indeed, before that - Mr Gurdial Singh went, as he claimed, into hiding. The police continued to search for him, but did not succeed in finding him. Nor, it appears, were there any difficulties experienced by his wife and two children, who continued to live openly in the family village. After four years of being in that position, Mr Gurdial Singh, as I have said, reached this country in 1996.
9. The adjudicator and the tribunal had the benefit of a medical report from Dr Peel in 1997, which was inconclusive as to the claims of torture and injury. Mr Singh did not have any manifestation of a physical injury, but the doctor fairly said that the sort of abuse that he complained of would not normally leave such marks.
10. After some procedural difficulties, which, fortunately, I need not go into, his application for asylum was considered by a special adjudicator, Mr Perkins, in October 1998, on the basis that Mr Gurdial Singh would face persecution if he were to be returned to India: the evidence being, as I have said, that he had been attacked and tortured by the police before that.
11. The adjudicator made various findings about the evidence that he had heard from Mr Gurdial Singh and from other sources, Mr Gurdial Singh having been cross-examined before him. It is necessary to say something in detail about the adjudicator's findings because they affect the determination of the Immigration Appeal Tribunal. The adjudicator pointed out that Mr Gurdial Singh had been able to leave India on his own passport and he was sceptical, or at least he expressed some reserve, about the claim that he had been in hiding from 1992 to 1996. As the adjudicator put it, that seemed to him to be a long time to be "on the run". If the police were really interested in him, they would have found him.
12. The adjudicator, although having doubts about certain aspects of the appellant's evidence, accepted that he had been prominent in Sikh marches and demonstrations; that he had in the past been a victim of violence at the hands of the police; and that he had been the subject of false charges - pointing out, however, that those charges had been dismissed. The adjudicator said this (at p.7 of his determination):

"It is to the credit of the Indian authorities that the Courts have repeatedly dismissed ill-founded allegations but, having considered all of the evidence, I find that the police have shown a marked determination to get the Appellant convicted of something."

13. He then addressed the issue and said this (at p.8):

"I am then faced with the appeal of a man who has been the subject of oppressive police behaviour in the past but, I find, not since 1992. Since then he has lived in the Punjab, he says discretely, without attracting police attention. He was able to leave India on his own passport and this satisfies me that he was not wanted for questioning at the time of his departure.

These things of themselves suggest that he would not be of interest to the authorities on his return."

14. Expressing some concern about the prospects if he were to return to his own address, the adjudicator said that the police:

"... would now be unlikely to persecute someone who has been out of the way for some time".

15. On the reports that he had (that is to say, the India Country Assessment and the Foreign and Commonwealth Office report), the adjudicator accepted that there had been a change of attitude in the Punjab. He drew attention, in particular, to the fact that the appellant had not attracted the attention of the police since 1992. In all the circumstances he did not accept that the appellant had been at risk since that date and he therefore was not persuaded that the appellant was entitled to international protection.
16. A number of criticisms are now made of the handling of some parts of the evidence. The adjudicator had before him a report from Dr Rai, who is a well known expert on Sikh and Punjab affairs, who has given evidence in many cases before tribunals. He was not minded to attach weight to that report. His view was that Dr Rai's sympathies interfered with his objectivity. In reaching that conclusion, the adjudicator appears to have relied upon Chinder Singh [1998] Imm AR 551, in which Dr Rai's evidence was criticised. We have been shown by Mr Gill a series of cases in which a different view has been taken of Dr Rai, and complaint is made in this case that his evidence was wrongly discounted by the adjudicator.
17. Secondly, there was before the adjudicator another document well known in the jurisprudence of this area, a report by Messrs Tyndallwoods, solicitors of Birmingham, who had made enquiries themselves in the Punjab in 1997. The adjudicator did not deal with the whole of that report, but said that he was concerned that the report suggested that illegal detention and torture was applied to people arriving at Delhi airport on removal from the United Kingdom. He was doubtful about that conclusion, pointing out that it was not based upon any evidence that appeared in the report, and he rejected it. That point, if it were a good one, would be relevant to a perhaps secondary issue - that is to say, whether, as a returner or unsuccessful asylum seeker, Mr Gurdial Singh would in any event be exposed to persecution by the police.
18. Mr Gurdial Singh appealed to the Immigration Appeal Tribunal. The grounds of appeal are set out on p.56 of our bundle. I emphasise, if I have not done so already, that they were not grounds settled by Mr Gill. The first ground, which is of some importance in the Immigration Appeal Tribunal's determination, was this:

"The Adjudicator expressed the opinion that it was unlikely that the Appellant could not have resettled in a different part of India without attracting Police attention. In India details of persons wanted by the Police are circulated throughout the country and given the Appellant's appearance he would at some stage have been detected had he sought to settle in a part of India other than the Punjab."

19. Various other grounds complained effectively of findings, in particular, based upon the fact that the appellant had not attracted the attention of the police since 1992, which I have already described. No complaint was made in those grounds of the handling of Dr Rai's report, nor of the handling of the Tyndallwoods report.
20. Before the Immigration Appeal Tribunal it was sought to introduce further material. That really came down to this. There were a number of affidavits from residents of the area from which Mr Gurdial Singh came which repeated the history of his arrest and torture by the military (a matter that was not, before the adjudicator, in contest) and then added (in, as far as I can see, standard form language) that between 1992 and 1996 Mr Gurdial Singh had stayed at the farms of the various deponents, moving around to avoid capture.
21. Secondly, there was sought to be put before the tribunal what appears to be a notarised version of a letter from the village committee that was already in front of the adjudicator, effectively saying that Mr Singh was still at risk and, indeed, that his residence had been raided by the police on 27th April 1997. The adjudicator was unimpressed by that evidence in its original form, not because he thought that it was not necessarily valid, but because, as he said (at p.8 of his adjudication):

"I do not accept that the letter purportedly from the village [committee] referring to an incident on 27 April 1997 records something that actually happened. If the Appellant is right the police had had no dealings with him since 1992. Previously he had been arrested against a background of disorder and/or the Appellant drawing attention to himself but, if the Appellant is right, the police had had no dealings with him since 1992. I simply do not accept that they should suddenly `raid' his home in 1997."

22. The third item sought to be put before the Immigration Appeal Tribunal was a letter from a gentleman in Birmingham who had visited the Punjab in 1999, when he saw the police questioning Mr Singh's wife and family, asking about him and saying that he was sought because of his political activities in the Punjab.
23. I deal first with the tribunal's handling of that material. The tribunal said (at p.2 of its judgment):

"The Tribunal refused to accept further oral evidence, at least until it had heard whether or not it was an appropriate matter in which to hear further evidence."

24. At the end of their determination, having (in terms that I shall return to) said that what they had heard either would not amount to persecution for a Convention reason or was not likely to arise, they said:

"Given these findings, there is no point, we think, in hearing any further evidence."

25. That observation caused me concern when I granted leave to appeal to this court. It seemed, at least on the face of it, to be saying that evidence which might arguably go to the matter that actually had to be decided could not be admitted because the matter had been decided on the evidence as it stood without that assistance. I will return to that aspect of the matter later.
26. The tribunal drew attention to the fact that the appellant's main activities had been in the 1980s, though they were not exclusively so, and that he had been able to stay in India between 1992 and 1996 without in fact being interfered with. He had obtained a passport in his own name. They then said this:

"... India is a very large country. It has nearly a billion people. Although the appellant is a Punjabi, the Punjabi people are to be found all over India, not to speak of all over the world. The Punjab State is a very large place. The appellant's activities are very minor and even if they were not so minor at the outset, that is now some fifteen or sixteen years ago. The Tribunal agree that the adjudicator took the view that some police may have grudges against him, and we accept that if he happened to come across one policeman who had a grudge against him he may try to do something unpleasant to him. We agree also that the background evidence indicates that the authorities generally are corrupt and the police brutal, having little regard to human rights.

So far as the appellant's political activities are concerned, we simply cannot see any serious possibility that any fear of persecution can possibly be well-founded, given all the circumstances.

We have given thought to whether or not upon a return questioning may reveal some interest in him. We cannot see what interest that could be. Any charge ever brought against him resulted in an acquittal. The only possible way he could run into difficulties would be either generally or because he came across a policeman who has a grudge against him. In the first case, it would not amount to persecution for a Convention reason, and in the second case it is not, in our view, a serious possibility."

27. They, therefore, in any event rejected the appeal.
28. They then went on to say this:

"To conclude, we have considered whether internal flight has any role to play in this case. We do not think that it has. Overall, we do not think that what he has related amounted to persecution in the first case, and it is therefore merely a question of whether he can go back to India and live there without the risk of persecution. Our answer to that is, of course he can. If, however, we were to be wrong and what did happen to him so long ago could be viewed as persecution, then we cannot see any reason at all (and we have in mind the decision in Sayandan) why it would be unduly harsh to require him to go and live somewhere else than where he originally hailed from in Chitti."

29. The difficulty that that conclusion poses for the applicant is that, even if he were to be right in his contention, as expanded by Mr Gill, that the tribunal were wrong not to find that he faced a threat of persecution on return to the Punjab, he would still have to displace the findings as to the possibility and reasonableness of internal flight. That was a finding also made by the adjudicator in the following terms (at p.6 of his determination):

"... I note that he was able to leave India freely on his own passport and I accept that there are substantial Sikh communities across India. I find it unlikely that the Appellant could not have resettled in a different part of india without attracting police attention if that had been his wish. He did not and that undermines his claim to be in lasting fear of the Punjabi police."

30. No complaint was made in the grounds of appeal to this court about the finding in respect of internal flight. Nor was it even part, formally or otherwise, of Mr Gill's submissions originally to us. When we raised this point with him, having been taken to it in the skeleton prepared by Miss Eleanor Grey on behalf of the Secretary of State, Mr Gill submitted that effectively the question of internal flight and the question of whether Mr Gurdial Singh was reasonably in fear of persecution were one and the same - made of the same cloth, as it were. Although on one level that is so, it is still the case that the issues have to be considered one by one.
31. I can first deal, therefore, with the criticisms made of the tribunal's finding about persecution. So far as the evidence they did not take into account is concerned, having now studied it more fully and having had the benefit of submissions on it, I am not persuaded that, even if the tribunal had taken the new evidence before it into account, that would have deflected them in any way from the view that they took of the special adjudicator's determination. The evidence about Mr Gurdial Singh's position between 1992 and 1996 does not undermine the finding made by the special adjudicator and the weight that he placed on it. The special adjudicator never said that he was living openly. He approached the matter on the basis of what Mr Gurdial Singh had told him, and on that basis expressed the scepticism that he did express about how fully the police were looking for him.
32. So far as the document from the village committee is concerned, its status having been explored with Mr Gill, he very rightly accepted (or, if he did not accept, he did not strenuously submit to the contrary) that it really added nothing evidentially to the matter before the special adjudicator. So far as the enquiries made in 1999 are concerned, although that demonstrates some continuing interest (or may do) on the part of the police in Mr Gurdial Singh, first, that is interest in the Punjab situation only, and secondly, it is a striking factor in the case, underlined by that incident, that his family had been living apparently without persecution and without serious investigation since he removed himself from the family home in 1992 and came to this country in 1996. I do not, therefore, think that the tribunal's view would have been altered by that evidence, though I adhere to the view I expressed earlier that the way in which they handled that matter was not wholly satisfactory.
33. Once that point is out of the way, it seems to me that there are no grounds for saying that the tribunal made an error of law in this case. The special adjudicator made certain findings which the tribunal upheld, and it has been impossible to demonstrate that the conclusions that the tribunal reached were not open to them, which of course is the test when one is considering questions of appeal to this court.
34. The main burden of Mr Gill's complaint is that the tribunal did not accept, or underplayed, the persecution that had occurred to Mr Gurdial Singh; that they were wrong to say that it was trivial, and that they were wrong to say that it was well in the past. But the passage from the Immigration Appeal Tribunal's judgment that I have read demonstrates that, first of all, they said (and, on the evidence, rightly said) that his main activities had been in the 1980s; and that secondly, although I would agree with Mr Gill that the word "trivial" might not have been the best word to choose, what had happened in the last decade was not an event of the highest seriousness. By that I am referring to the event in 1992, deplorable though it may have been and unpleasant for Mr Gurdial Singh as it was when it was occurring.
35. I do not, therefore, think that it would be right to say that the Immigration Appeal Tribunal, on the basis of the findings of fact made by the special adjudicator, went in any way wrong in law in the approach that they adopted. That, therefore, in my judgement is the end of this appeal.
36. But it is important to turn to the matter of internal flight. I have already explained that one of the grounds of appeal to the Immigration Appeal Tribunal was that details of persons wanted by the police are circulated throughout the country. Mr Gill said that the crucial point in this case was that a person such as Mr Gurdial Singh would be on lists known to the police throughout the country and he would therefore be the subject of attention, not just in the Punjab, but anywhere in India at all. His difficulty in supporting that contention was, however, that there was no evidence that could be identified to that effect in respect of this particular case, Mr Gill having emphasised that his argument depended heavily upon the particular circumstances of Mr Gurdial Singh. Mr Gill said that if we had (which now we do not have) the evidence of Dr Rai which had been given to the special adjudicator, it was likely - he put it no higher - that he would have given evidence to that effect in this particular case. Because of what appears to have been the unsatisfactory handling of this case before it came to Mr Gill's attention, that evidence is not now to hand. I am afraid I have to say that I cannot think that it would not have been possible to obtain it for the benefit of this court either from the tribunal authorities or, if needs be, direct from Dr Rai or from those who previously advised Mr Gurdial Singh.
37. But even if it had been obtained, a further problem, as I have indicated, is that no complaint was made to the Immigration Appeal Tribunal about the adjudicator's posture with regard to Dr Rai's evidence. Mr Gill said that it was the responsibility of the respondent to draw the tribunal's attention to Dr Rai's evidence or to other evidence of a similar sort, even if the applicant did not do so; and he referred us to another case where he had successfully made that point, in different circumstances, to a single Lord Justice. In this case I am unable to accept that argument. We do not know what Dr Rai said. It would not be right to speculate about what he might have said. It would be even less correct to say that the Secretary of State's representative before the Immigration Appeal Tribunal ought to have gone out of his way to draw the tribunal's attention to a particular piece of evidence not mentioned at all in the grounds of appeal. This evidence was not going to establish a general point about the country. What it was going to do, if at all, was to say something about Mr Gurdial Singh. That really is the only basis upon which the finding of internal flight could be criticised and in my judgement it fails.
38. We were shown by Miss Grey a considerable number of other cases in which internal flight findings in respect of persons from the Punjab have been upheld. I do not rely on those because, as Mr Gill said, they were about different people. But I do note, against the background of my judgment, that the finding of the tribunal in this case could not be said to be out of line with the finding of other tribunals.
39. Be that as it may, there are, in my judgement, no grounds for saying that the tribunal erred in law in respect of the material arguments that were before it on this appeal and I would dismiss the appeal against the tribunal's decision.
40. LADY JUSTICE ARDEN:I agree.
41. I would like to add some observations of my own about the procedure adopted in this case. They are views which I formed quite independently of the merits of this appeal, which, as I have said, I agree should be dismissed for the reasons given by my Lord, Lord Justice Buxton.
42. My observations are these. As is well established, these cases require careful scrutiny. It should also be apparent to the parties, and more particularly to their advisers, that these cases require careful preparation. There are a large number of respects in which this matter fell sort of full and proper preparation.
43. First, as my Lord, Lord Justice Buxton, has said, the court has not had before it the report of Dr Rai, who has been described as a distinguished commentator. Mr Gill relied on what he understood might have been said by Dr Rai in his report in support of his submissions in this case. We are told that the appellant has lost his copy but, as I understand it, no attempt has been made to obtain a copy from the Immigration Appeal Tribunal or, indeed, from Dr Rai. Instead, leading counsel (who, I stress, did not appear below) has had to make his submissions on what he thinks Dr Rai would have said. As I see it, this is not a proper basis on which to present the appeal.
44. Secondly, there was evidence which it was sought to be put in before the Immigration Appeal Tribunal. This consisted, in part, of oral statements of the appellant and Mr Sukhwinder Singh. As we understand it, the tribunal was not told what either of those witnesses would wish to say.
45. Thirdly, this appeal was not set down in accordance with the rules; and, indeed, there is an outstanding application to extend time for that purpose, which of course is superseded by the fact that the court has heard the appeal in full. The document issued by the court granting permission to appeal states quite clearly that the appeal has to be set down within seven calendar days of the date of service of the notice of appeal. In this particular case that was in accordance with Order 59, rule 5. In fact, this appeal was not, as I understand it, set down until October, which is some four months later than it ought to have been set down.
46. There is a witness statement from Mr Bhavsar, solicitor to the appellant, who explains that the appellant was then represented by another firm, who unfortunately failed to progress the matter. The court was not given any details of why or when that was. The witness states that the appellant then transferred his instructions to another firm, who were unable to progress the matter any further because they did not hold a legal aid franchise. Again, we are given no dates. Provisionally (because this matter, of course, has not been addressed in submissions), it seems to me surprising that instructions were accepted by a firm who could not accept legal aid instructions.
47. Then the appellant instructed Mr Bhavsar's firm. We are not given any date for that. It appears that some papers at least were then given to his new solicitors, including, I would assume, the notice of permission to appeal with the notice to which I have just referred. The papers were not apparently complete, and the appellant's new solicitors, we are told, then took steps to contact the Civil Appeals Office to ascertain the position. Of course, it must have been apparent that, under the rules, steps needed to be taken. Time passed, and it was not until 11th October that the solicitors spoke to the Civil Appeals Office on the telephone and then the requisite documents were lodged and the requisite fee paid. I should say that it must be apparent to parties that they cannot rely on the fact that they wish to speak to the Civil Appeals Office for not complying with the rules, and it is up to them to deal with procedural matters in time in accordance with the rules.
48. Fourthly, so far as the procedural handling of this case is concerned, additional grounds of appeal have been lodged, not just once, but twice: first, on 27th November, and then again recently on 15th February 2001. Even so, those grounds of appeal do not, as my Lord has explained, raise any complaint about the way in which the tribunal or the adjudicator dealt with the report of Dr Rai or with the report of Tyndallwoods or with the tribunal's conclusion on the matter of internal flight.
49. Fifthly, it has been sought to produce yet further evidence on this appeal. A further witness statement of Mr Bhavsar was sent to the Civil Appeals Office on 19th February. That stated that Mr Bhavsar has not had a chance to prepare a detailed statement from Mr Sukhwinder Singh, but had spoken to him on the telephone and he had provided details, including a statement that, following the appellant's arrival in the United Kingdom in 1996, the appellant had involved himself with the activities of the Council of Khalistan UK as a member, and that Mr Sukhwinder Singh holds the post of general secretary for the Council of Khalistan. If there was to be an application to produce fresh evidence, there should have been a formal application for that purpose and the deponent to the witness statement would need to include a full copy of the statement proposed to be adduced, explaining why it had not previously been produced and why the court should now accept that evidence as credible evidence.
50. These are some of the points on which it seems to me the procedure adopted in this case has fallen short of what the court is entitled to expect. The court has endeavoured to do its best on the material presented, with the helpful submissions of Mr Gill. But that the case has taken more time than its allotted time must, in part, be attributable to the procedural matters which I have mentioned. I repeat that it is part and parcel of the obligation of professional advisers to ensure that cases are properly prepared and presented.
51. I have gone through these matters in some detail because a court in a future case may well take a less benevolent view than this court has done if advisers do not fulfil their obligations.
52. LORD JUSTICE HENRY: I agree that this appeal should be dismissed for the reasons given by my Lord, Lord Justice Buxton.
Order: appeal dismissed; assessment of the appellant's public funded costs.