England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM HIGH COURT OF JUSTICE
(MR JUSTICE JACKSON)

		Royal Courts of Justice Strand London WC2 Thursday, 3rd May 2001

Thursday, 3rd May 2001

1. LORD JUSTICE MUMMERY: I will ask Lord Justice Longmore to give the first judgment.
2. LORD JUSTICE LONGMORE: This is an application for leave to appeal from the decision of Jackson J refusing permission to apply for judicial review.
3. It comes before this Court in rather a curious way. Originally, Mr Gill, who appears for the applicant today, settled the grounds on which relief was sought, but when the matter came before the Administrative Court on 21st July 2000, Mr Gill was unable to be present and Miss Fielden held the brief for the applicant. When the case was called on, she had to accept that there were, what Jackson J called insuperable obstacles in the path of the application for permission. She did not concede in any sense that the application should fail but she addressed no substantive argument to the learned judge and not, unnaturally, he dismissed the application.
4. Mr Gill has now sought leave to appeal against that decision. When the matter came on a paper application to Henry LJ, he said:

"I have not the material before me on which to say whether Jackson J was right or wrong to refuse permission for judicial review of the special adjudicator's decision."

5. He ordered therefore that there should be an oral hearing of the application for permission and he said that it would assist if the respondents were represented. Therefore, the Secretary of State for the Home Department has been invited to attend and has attended by Miss Jennie Richards. She cannot of course help as to what happened at the original application nor really can Mr Gill, save to say that there are points that he himself would have developed before Jackson J if he had been able to be there.
6. I observe it is not at all satisfactory for this Court to be put in a position where the counsel who drafts the grounds for the application does not attend the original hearing before the Administrative Court but then seeks to pursue those grounds in this Court. Nevertheless, we have thought it right to give Mr Gill every opportunity to develop what he might have said had he been in front of Jackson J.
7. Having heard everything that Mr Gill has submitted in relation to the decision of the Special Adjudicator in this case, we have come to the conclusion that it is not suitable to grant permission to move for judicial review in this case. What is said by Mr Gill in outline is that in a case where the applicant and his son, who is also an applicant before us, were asserting that if they were returned to India they faced a well-founded fear of persecution, the Special Adjudicator has not given a proper consideration to that claim. The Special Adjudicator here was asked to determine whether the first applicant had been tortured or otherwise ill-treated, and if he had, therefore would face a well-founded fear of persecution if he were returned to India.
8. The facts of the case are set out in the decision of the Special Adjudicator and there is no need on this application for me to refer to them in detail. The conclusion to which the Special Adjudicator came was that on the totality of the evidence before her, she was not satisfied that either Ajit Singh, the first applicant, or his son, Jaswinder Singh, the second applicant, presented as credible and coherent witnesses. She, therefore, rejected their accounts of torture and ill-treatment, and having so rejected those accounts she upheld the decision of the Secretary of State that the claim for asylum was not established and therefore the applicants would have to be returned to India.
9. Mr Gill has submitted a skeleton argument with ten separate points in it, but the main substance of his attack on the Special Adjudicator's decision is that she was not entitled to come to the conclusion on credibility to which she in fact came. He says, firstly, that the main reason given by the Special Adjudicator for disbelieving Mr Ajit Singh was that he had on his first arrival and initial interview claimed that he had left India on 11th January, travelled to Czechoslovakia, where he remained from 13th January until March 1991 when he went to Germany. She then recorded his evidence of his having been in jail and assaulted by the police in February 1991, and she pointed out that that was inconsistent with his original statement on arrival. That was the first of the particular instances of evidence on which she relied in order to establish the lack of credibility on the part of Mr Ajit Singh.
10. There was a second particular part of the evidence on which she also relied, namely his anxiety in the course of his evidence before her to gloss over the fact that he had been in Czechoslovakia and also to gloss over the awkward question why he had not claimed asylum in Czechoslovakia, but it is fair to say that that was only the second element of the particular matters that she considered affected the credibility of Mr Ajit Singh.
11. Mr Gill complains that it was never put to Mr Ajit Singh in the course of the hearing before the Special Adjudicator that the evidence he was giving was inconsistent with his original account of his movements on initial arrival. As to that, the matter was relied on expressly in the decision letter of the Secretary of State. It clearly was a matter therefore in the arena with which Mr Ajit Singh had to deal. He did not deal with it. It is now said that he, if specifically asked, would have given evidence that he had a bad memory for remembering actual dates, and that since the dates were so long ago it was not surprising that he might have been confused. The difficulty with the matter being put in that way is that he purported on arrival to give specific dates. It would be one thing no doubt if he had said "well, I cannot remember what the actual dates were", but the fact is that he gave a series of dates, and at a later time he gave a series of dates which were inconsistent with those dates. That, it seems to me, is a matter which the Special Adjudicator was fully entitled to take into account as part of the exercise which she was performing, namely assessing the credibility of Mr Ajit Singh.
12. Mr Gill's second point is that there is no finding in the adjudication as to whether or not Mr Ajit Singh had been detained in India. What the adjudication does decide is that there was no torture or ill-treatment suffered by
13. Mr Ajit Singh in the view of the Special Adjudicator. It does not seem to me that it was incumbent on the Special Adjudicator to make any specific finding one way or the other on the facts of this case as to detention because the nature of the interest which the authorities had in Mr Ajit Singh was the allegation that he was harbouring terrorists. That is naturally something which the authorities in India might have been interested in and in pursuance of that detention, whether or not on the findings of the Special Adjudicator it did occur, would not be a surprise. The question of course is whether Mr Ajit Singh was ill-treated or tortured in the course of his detention, as he has asserted, and that is the matter in respect of which the Special Adjudicator found that his evidence was not credible.
14. Then Mr Gill submits that the Special Adjudicator should have made findings about the background and should have said she had regard to evidence of the background of ill-treatment of Sikhs in India, and he referred us to a letter of 1994 from a Mr Mann, who was an important person in the village from which the applicant has come, and also numerous other documents including the United Nations Handbook, the Medical Foundation Report 1999 and various documents all set out in paragraph 11 of Mr Gill's skeleton argument.
15. In my view it is not necessary for the Special Adjudicator to have referred in terms to all the documents that were in front of her. Not unnaturally her adjudication concentrates on the oral evidence that was in the foreground of the dispute in front of her, but she makes her conclusion on the basis of the totality of the evidence before her. The decision is a carefully-phrased decision and there is, in my judgment, no argument that she failed to have regard to matters to which she should have had regard.
16. Then it is said that the Secretary of State should have produced the 1999 updated report on the assessment of India, and in particular if that had happened there would have been a reference to paragraph 5.658 of that document, in the following terms:

"Sikhs do not constitute a persecuted group at the present time. The rank and file members of groups that were at one time targeted, e.g. the AISSF are in general terms now safe. There are exceptions such as people with a local history of abuse at the hands of the police who may continue a personal vendetta and militants together with their close relatives and supporters who continue to be followed as potential seeds for further rebellion."

17. Mr Gill submits that that document should have been before the Special Adjudicator and should have been produced by those appearing for the Home Office and that if it had been, then it would have been possible for an argument to be mounted on the evidence that the applicant was indeed a militant who would be seen as a potential seed for further rebellion. That, in my judgment, is to seek to put forward now a fresh argument which was not before the Special Adjudicator. If the argument had been put forward in that way, there might have been some relevance in the documentation, but the fact is that the beginning and end of the case before the Special Adjudicator was that the applicant and his son asserted that they were ill-treated, and as a matter of credibility the Special Adjudicator did not believe them. That is the beginning and end of this case.
18. In my judgment there is no argument that that was not a finding to which the Special Adjudicator was fully entitled to come and the application will have to be dismissed.
19. LORD JUSTICE MUMMERY: I agree with the judgment given by my Lord, so the application for permission is refused.
(Application for permission to appeal refused)