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 AN IMMIGRATION APPEAL TRIBUNAL

		Royal Courts of Justice Strand London WC2 Wednesday, 4th April 2001

Wednesday, 4th April 2001

1. LORD JUSTICE WARD: May LJ will give the first judgment.
2. LORD JUSTICE MAY: This is an appeal in an asylum case and accordingly it requires the court's most anxious scrutiny.
3. The appellant is an Indian national, born on 27th October 1976. He arrived in the United Kingdom on 24th October 1997 and claimed asylum. His claim was refused by the Secretary of State on 7th December 1998. He appealed to a Special Adjudicator who dismissed his appeal by a determination sent out on 28th April 2000. He was given permission to appeal to the Immigration Appeal Tribunal who heard the appeal on 19th July 2000. In an undated decision, the Immigration Appeal Tribunal dismissed the appeal and subsequently refused permission to appeal to the Court of Appeal. Permission to appeal was given by Schiemann LJ on 14th December last year, Sir Murray Stuart Smith having previously refused permission on a paper application.
4. The appellant comes from a village in Punjab and is a Sikh. He gave evidence before the Special Adjudicator by an interpreter by which he confirmed and supplemented the information he had provided when he was interviewed by an immigration officer on his arrival in the United Kingdom. His case was that he went to college in 1996 and, although he was not then and has never subsequently been interested in politics, he was nominated for the presidency of the Sikh Student Federation at his college. There were rival groups and a rival candidate and violence had broken out between the supporters of each group. In consequence of that, the appellant was charged with attempted murder. He was locked up in a police station for two days and beaten, but eventually his father arranged a compromise with the victim from the rival group. In these circumstances, the appellant was released from the police station without charge. Although he had never previously been detained and said that he was not involved in any political activity, he was assessed as being a trouble maker and the police came to his house looking for him after a theft had taken place. He left his village and went to Delhi, where he remained for about a year until he left India on 18th October 1997. He said that he had been advised by his father to leave the country because a warrant had been issued for his arrest and he would remain targeted by the police because of his previous involvement in violence. In his oral evidence, he said that he had warrants issued for his arrest for a number of serious offences.
5. The appellant arrived in the United Kingdom without a valid passport. In his interview, he had explained that he had been told by an agent to destroy it. The passport was, however, later obtained from the aircraft in which he had travelled between India and France and where he had attempted to destroy it. It was found to have been issued on 19th December 1996, some months after the violent incident and 10 months or so before the appellant left India.
6. The appellant's case was that he had a well founded fear of persecution for convention reasons. His brother, he understood, had returned to India and died in an incident when he was hit by a van in November 1998. The appellant's belief was that his brother had been deliberately killed by the police. As for himself, the appellant was in no doubt that if he returned to India he would be likely to be arrested. He believed that there were still one or more outstanding warrants for his arrest in India. He mentioned in his evidence he believed that there had been warrants against him for murder, burglary and armed robberies. He believed that, if he were to return to Delhi, he would be detained as a Sikh at the instigation of the Punjab police.
7. The Secretary of State's reasons for refusing the appellant's claim for asylum were, in short summary, that the appellant's account of being nominated against his wishes as President of the Sikh Student Federation was unconvincing and unpersuasive; that the fact that a passport was issued to him in December 1996 cast doubt on his credibility; that it was unlikely that the police would have a continuing interest in him when he had been able to leave India using his own passport with no difficulty 14 months after the original incident; that it was more likely that he had applied for asylum for social and economic reasons; that earlier problems in the Punjab had been brought under control from 1993; that the Sikh Student Federation was not a proscribed organisation; that if there was an outstanding warrant for his arrest, the police would be under a duty to prosecute, he would receive a fair trial in India and that would not amount to persecution.
8. The Special Adjudicator found that on the whole the appellant was a credible witness. She was satisfied that he was arrested and detained as he had described, and that during his detention he was subjected to beatings and eventually freed as a result of his father's intervention. She found in not upholding a certificate of the Secretary of State under paragraph 5(2) of Schedule 2 of the Asylum and Immigration Appeals Act 1993 that there was a reasonable likelihood that his treatment while he was in detention amounted to torture. She was satisfied that the appellant left his village when he considered that he would be subjected to frequent and continued police interference in his affairs because of their suspicions that he was involved in political activity and possibly criminal activity as well. She appreciated that at the time of his arrest in August 1996 he was perceived by the authorities to be a political activist. Soon after his arrest and detention a further warrant for his arrest was issued in relation to a theft which had occurred in the area. The appellant went to live in Delhi, where he remained for over a year. He was not pursued by the authorities to Delhi. He was not involved in political activity, and, whatever the police may have thought of him in his own village, he was not of sufficient concern to be pursued to a different part of India. He was able to obtain his own passport, and able to leave India using his own name and his own passport. The Special Adjudicator made no finding about whether there was a warrant outstanding against him in India. She was not satisfied that the appellant had a well founded fear of being persecuted while in Delhi. There was nothing which had happened to him there that could lead to such a well founded fear. On this basis, the Special Adjudicator dismissed the appellant's appeal.
9. The appellant's grounds of appeal to the Immigration Appeal Tribunal included, first, that the Special Adjudicator had made no findings as to whether warrants for his arrest were still outstanding at the time he left India in 1997; and second, that she had failed to address the risk to the appellant if he were to return to India in the light of the accepted past interest of the Punjabi police in him. It was submitted that, however objectively safe his position had been in Delhi before he travelled to the United Kingdom, on return to India he would be identifiable as a returned asylum seeker. Checks on police computer records or by telephone would reveal his past detention in connection with the Sikh Student Federation and an outstanding warrant or warrants.
10. In their decision, the Immigration Appeal Tribunal noted that the Special Adjudicator had made no finding about whether there were outstanding warrants. They assumed that her state of mind was that she was in doubt as to whether this was true or not. On what has become the main point of this appeal, the Immigration Appeal Tribunal said this:

"We have to decide assuming (as to which we are by no means satisfied, but that is by the way) that the Adjudicator was right in regarding what had happened in the Punjab as Convention persecution of the appellant by the police there, is whether he would be reasonably likely to face such persecution on return to Delhi airport. (In view of the time he spent living Delhi city without problems before his departure, it would be wholly unrealistic to argue that, in the absence of persecution on return, it would be `unduly harsh' to expect him to go back there; and, to do Mr Fripp justice, he did not do so with any degree of enthusiasm.)"

11. The case was that at Delhi Airport outstanding warrants against the appellant from the Punjab would appear on computer records available to the police there. The Immigration Appeal Tribunal said that, where in a federal state police forces are organised on a provincial basis, that could not be assumed but required to be established by evidence. The material relied on included the script of an address by Dr Cynthia Mahmood entitled "Remarks at July 18 Symposium, Columbia University". Mr Fripp tells us that this was an address given in July 1998. It related to Human Rights issues affecting Sikhs in the Punjab. It included the statement that:

"...lists are still kept of `habitual offenders', who are then rounded up for questioning when ever something untoward happens. Note also that these lists are distributed across India via police computer. Therefore internal flight may not help an individual whose name appears."

12. The Immigration Appeal Tribunal noted that the suggestion no doubt was that the appellant was regarded, as they put it, "with no justification beyond his peripheral involvement in the fight over the candidacy" as an "habitual offender" by the Punjab police, who would then have circulated details of the warrants against him to other forces in such a way as to be immediately available at Delhi Airport. The Tribunal were referred to a decision of a differently constituted tribunal in Sarbjit Singh (BOO88) in which evidence from Dr Mahmood was mentioned, but they did not get much help from that decision. They quoted comments in the Home Office Country Assessment (version 1, April 2000). This included information that "history sheeters", that is those with a record of previous arrests and detentions, and "habitual offenders" might also be at risk. The Tribunal noted that the source for these comments was the Canadian Immigration and Refugee Board; but that it was quite clear that the original source must have been Dr Mahmood.
13. The Tribunal's decision on this part of the appeal before them was as follows:

"There was a time in most systems of thought when opinions gained force simply from being passed on from one learned source to another. We think that that time has gone by. The nearest to a first hand opinion as to India-wide computer-based criminal records that we have been given is those remarks of Dr Mahmood. She herself gives no source for her views; while she is no doubt a long standing academic observer of South Asian affairs, she has no direct link with any Indian police force, and needs to give some better authority than her own, if her statements as to their practice are to be taken seriously. While she cannot be blamed for not doing so in remarks to an academic symposium, that highlights the unsatisfactoriness of a tribunal being asked to decide a case, and, like all asylum cases, one of some importance, on the basis of such remarks. We have to add that the stated objects of the symposium, although worthy, can hardly be described as impartial. At best, looking at this evidence in terms of Karanakaran, we are left in doubt as to whether there really is at Delhi airport a police computer system capable of identifying the appellant on return in 2000 as the subject of warrants issued in the Punjab in 1996-97. Given that he was in the first place then an 18 year old with no history of involvement in politics, who may have been pursued by the Punjab police simply because he had at one point been arrested (but soon released) over a fight within the separatist group, and had never had any trouble in Delhi, we agree with the Adjudicator that there was no reasonable likelihood of his facing any real risk of persecution on returning there. Since it cannot be argued that it would be `unduly harsh' to expect him to do so that is the end of the case."

14. An application was made to the Immigration Appeal Tribunal, supported by detailed reasons, for permission to appeal at this decision, but permission was refused. Permission was, as I have said, subsequently given by Schiemann LJ.
15. The grounds of appeal to this court may be summarised as follows. First, that the Tribunal concentrated unduly on the question whether the appellant's name was likely to appear on computer lists at Delhi Airport, but overlooked the submission that the airport police might obtain information from the appellant's local police station by telephone or fax. Second, that the Tribunal's approach to the material deriving from Dr Cynthia Mahmood was unduly dismissive. Third, that the Tribunal refused leave to appeal without giving sufficient reasons for doing so.
16. The last of these no longer applies since permission has now been given. The point about obtaining information by telephone or fax seems to me to assume that the immigration police would have been prompted to make a telephone call in the first place. That leads back to the matter of records at the airport. It was on this point that Mr Fripp's submissions mainly concentrated.
17. It is submitted that Dr Mahmood is an expert of high reputation and that her views deserve to receive weight in the absence of convincing material to the contrary. Her evidence was uncontradicted and its weight ought not to have been diminished simply because she did not substantiate it by reference to sources. It was to be supposed that she would have been able to provide source material, had she been asked to do so. The Tribunal should not have attached reduced weight to her evidence without giving the appellant an opportunity to seek supplementary evidence from her. Her objectivity should not have been questioned by reference to the purpose of the symposium at which she was speaking. Her standing as a respected academic expert on Indian affairs has been acknowledged by one or more other constitutions of the Immigration Appeal Tribunal and in a determination of the Special Immigration Appeals Commission, and the assessment of the Tribunal in the present case is at odds with those decisions. It is submitted that the Tribunal's treatment of Dr Mahmood's evidence in the present case was not in accordance with the decision in KaranaKaran, notwithstanding the reference to that case. Mr Fripp refers in particular to the judgment of Brooke LJ in that case where he said:

"...in the present public law context, where this country's compliance with an International convention is in issue, the decision maker is, in my judgment, not constrained by the rules of evidence that have been adopted in civil litigation, and is bound to take into account all material considerations when making its assessment about the future.

This approach does not entail the decision maker (whether the Secretary of State or an Adjudicator or the Immigration Appeal Tribunal itself) purporting to find `proved' facts, whether past or present, about which it is not satisfied on the balance of probabilities. What it does mean, on the other hand, is that it must not exclude any matters from consideration when it is assessing the future unless it feels that it can safely discard them because it has no real doubt that they did not in fact occur (or indeed, that they are not occurring at the present)."

18. Since the hearing before the Tribunal, the appellant's solicitors have sought and obtained from Dr Mahmood a statement of the sources of her information on the existence of police lists relating to the Punjab conflict. Her personal sources include approximately a dozen Human Rights activists in Punjab with whom she is in close contact and three former police officers whom she has extensively interviewed. She also refers to two publications. She acknowledges that many of the Government and Human Rights reports that discuss the question of "history sheeters" rely on her own material. However, she refers to a recent direct investigation on Human Rights in the Punjab issued by the Danish Immigration Service in April 2000, with which she herself was not involved. She quotes extensively from this publication. The appellant seeks to rely on this additional material.
19. Miss Giovannetti submits in her written submissions on behalf of the Secretary of State that the suggestion that the Immigration Authorities in Delhi would contact the appellant's local police station by telephone or fax was scarcely relied on before the Immigration Appeal Tribunal, who were not obliged to treat this as a free standing argument requiring separate consideration. As to the material deriving from Dr Mahmood, Miss Giovannetti submits that the Tribunal had good reason for attaching little weight to her remarks at the symposium and that they gave sufficient reasons for taking this view. As to the supplementary evidence, this was not before the Immigration Appeal Tribunal. The fact that what Dr Mahmood said at the symposium was unsupported by sources should have been obvious to the appellant's representative, and the Tribunal were not obliged to offer an adjournment in order for better evidence to be obtained. The additional material does not in any event demonstrate that a person with the appellant's history and background would face problems on arrival at Delhi airport.
20. In my view, notwithstanding arguments which might be made as to the admissibility in this court of Dr Mahmood's additional material, this court should take it into account. This is after all an asylum case, and I think it would be unsatisfactory to refuse to take account of material of this kind for purely procedural reasons. In the light of the material but in any event, I think that there is force in Mr Fripp's submission that the Tribunal expressed its view of Mr Mahmood's material in unduly dismissive terms. She is plainly a respected and well informed academic expert on Indian affairs, including affairs in Punjab, and the sources of her relevant information are in the context substantial. This court should regard the uncontradicted material deriving from her in that light as sufficient in an asylum case to establish the facts which she states. This significantly shifts the emphasis of the weight to be given to her material from that which the Tribunal adopted. In my view, however, the debate as to the weight to be given to Dr Mahmood's evidence has tended to obscure consideration of the appellant's case as a whole.
21. Dr Mahmood's address to the symposium gave an extended account of serious Human Right's abuses affecting Sikhs in Punjab and she gave an account of the underlying causes of this. She said that the Human Rights situation in Punjab had greatly improved in the past few years, although the improvement was incomplete. It is no longer true that all Sikhs have a well founded fear of persecution in the immediate sense, but some categories of people remain at significant risk. The first category is militants or perceived militants and their family members and close supporters. These top the list. She then said that:

"A second category of people still at risk are those typically termed `history sheeters', that is, individuals with a record of previous arrests and detentions. The important thing to remember here is that at the local level police in Punjab, like police in most other states of India, are only relatively under the control of directives from the central government ... it is also true that extortion, bribery and the carrying out of personal vendettas form a normal part of police functioning even in times of `normalcy'. Someone with a local history of abuse in these terms may still face persecution despite the improved overall climate. Furthermore, lists are still kept of `habitual offenders', who are then rounded up for questioning whenever something untoward happens. Note also that these lists are distributed across India via police computers. Therefore internal flight may not help an individual whose name appears."

22. Although, for the reasons which I have given, I consider that this court should give greater weight to Dr Mahmood's evidence than did the Immigration Appeal Tribunal, that does not, in my view, necessarily lead to a conclusion that the appeal should be allowed. For all that the Special Adjudicator found that the appellant on the whole was a credible witness and accepted his account of what happened in 1996, his claim for asylum was intrinsically very weak. The Special Adjudicator did not make a positive finding that there was an outstanding warrant for his arrest. The fact that he believed that there was is a matter to be taken into account, but it was, according to his evidence, at most a single outstanding warrant. He had lived in Delhi without difficulty for more than a year and during that period had obtained a passport in his own name which enabled him to leave India, not immediately, but some months later. He attempted to destroy the passport in transit and, as it has now developed, the claim to asylum on appeal initially depends, and depends alone, on his establishing to the reduced standard of proof appropriate in asylum cases that he is to be regarded as a "history sheeter" or "habitual offender" within the use of those terms by Dr Mahmood; and that if computer systems or telephone calls enabled the Immigration Police at Delhi airport to identify him as such, there is a reasonable likelihood that he would not receive a fair trial for any offence for which he may be charged, but on the contrary would be persecuted for a convention reason. If the evidence does not bring him within Dr Mahmood's second category, it necessarily does not bring him within her first as a perceived militant. In my judgment, after anxious scrutiny, a proper assessment of the evidence which the Special Adjudicator heard and assessed taken as a whole, together with Dr Mahmood's evidence properly considered, does not establish these necessary facts. According to his own evidence, he was not a "history sheeter", that is, as described by Dr Mahmood, an individual with a record of previous arrests and detentions. He was arrested once in 1996 after an incident which was not on the face of it an act of terrorism. He was released after two days without charge. He was not a political activist, although he considered in 1996-7 that the police suspected that he had been involved in political activity. He was not an "habitual offender" who was rounded up for questioning whenever something untoward happened. He was not, as the Special Adjudicator found he was not, pursued to Delhi.
23. In my judgment, therefore, the conclusions of the Special Adjudicator and the Immigration Appeal Tribunal should be upheld, taking full account of the fact that each of their decisions contained a feature which was properly reviewable on appeal.
24. LADY JUSTICE HALE: I agree.
25. LORD JUSTICE WARD: I also agree. The appeal will be dismissed.
Order: Appeal dismissed. Appellants costs to be assessed by the Legal Services Commission.