Scottish Court of Session Decisions

The petitioner is an Indian national who arrived in the United Kingdom on 6 July 1996 and was granted six months leave to enter. Prior to his entry to the United Kingdom he was a businessman in the Punjab. He claims that from about the middle of 1995 he was the subject of repeated written and verbal threats from militants who demanded money from him and threatened to kill him or abduct his children if he refused to comply. He reported these threats to the police but they failed to catch the militants. Thereafter and on the basis that he had informed on them to the police the threats from the militants increased. The petitioner feared for his life and sent his family to stay with relatives and left the country. Following his arrival in the United Kingdom he received telephone calls from India informing him that his absence from that country had not stopped the militants threats against him. He claimed asylum on 17 December 1996. His claim for asylum was refused by the Secretary of State for the Home Department by letter served on him on 27 January 1997. In terms of that letter the Secretary of State indicated that he had concluded that the petitioner had not established a well founded fear of persecution within the terms of the 1951 United Nations Convention relating to the Status of Refugees and that he therefore did not qualify for asylum. At the same time the Secretary of State certified the petitioner's claim as being one to which paragraph 5(2) of Schedule 2 to the Asylum and Immigration Appeals Act 1993 (as amended) applied, but to which paragraph 5(5) of said Schedule did not.

Paragraph 5 of Schedule 2 to the Asylum and Immigration Appeals Act 1993 (as amended) provides:

The petitioner appealed said refusal of asylum to a special adjudicator. By a determination dated 18 June 1997 the said appeal was refused by Mr D. Allen, Special Adjudicator who also upheld the Secretary of State's certificate in terms of paragraph 5(5) of Schedule 2.

The petitioner was detained in Gateside Prison, Greenock from 27 February 1998. He was granted interim liberation on 7 October 1998 and at the first hearing on the petition and answers which took place before me on 5 November 1998 that issue was accordingly no longer live. In his petition the petitioner challenges both the respondent's decision and the decision of the special adjudicator and also the certification of his claim in terms of paragraph 5(5).

It is necessary before examining these criticisms to outline the procedural history of the petitioner's claim for asylum. The petitioner was interviewed on 17 December 1996 by an immigration officer prior to his claim for asylum being remitted to the Secretary of State for consideration. When his application to the Secretary of State was refused the petitioner was informed in the decision letter that in consequence of the certification of his case under paragraph 5(2) and paragraph 5(5) of Schedule 2 of the 1993 Act his right of appeal will be subject to the accelerated appeal procedure. A notice of appeal to a special adjudicator was then submitted on the petitioner's behalf. This indicates that a nominated firm of solicitors in Leicester are acting as the petitioner's agents and the grounds of appeal are said to be "I am being persecuted in India and I believe that my life will be in danger if I return to India". The determination of the special adjudicator indicates that he is satisfied that a due notice of hearing was sent by recorded post on 24 March 1997 to the solicitors nominated by the petitioner indicating that the appeal would be heard on Tuesday 15 April 1997. There was no appearance by or on behalf of the petitioner on the said date and the special adjudicator accordingly proceeded to determine the appeal on the basis of the documentary evidence before him in accordance with the provisions of Rule 33 of the Asylum Appeals (Procedure) Rules 1996. In terms of Rule 31(2) of the said Rules it is clear that the onus of proof in relation to the appeal is on the appellant. Further, in terms of Rule 38 any notice sent to a person representing a party to an appeal shall be deemed to have been sent or given to that party.

It is apparent from part 5 of that document that the petitioner chose to send no further documentation to the special adjudicator in support of his appeal beyond the interview record which was before the Secretary of State. When the petitioner's appeal came before the special adjudicator the only additional material before him was thus the notice of appeal which contained nothing new beyond the information which had been before the Secretary of State. Further, the applicant not having appeared to give evidence, the special adjudicator did not have the advantage of hearing him give his account or of assessing his credibility.

On behalf of the petitioner Mr Sutherland criticised the Secretary of State's determination in that he had failed to indicate in his decision letter whether or not the petitioner's account of his situation was accepted as credible. It was accordingly impossible to be certain whether he had arrived at his decision on the basis that he did not believe the petitioner's assertions or because he rejected the contention that what he had been subjected to amounted to persecution. This criticism is, in my view, unfounded since there is no indication whatsoever in the determination that the Secretary of State has proceeded other than upon the basis that he accepts pro veritate the factual assertions made by the petitioner; his determination is thus properly to be read as indicating that he has proceeded upon the assumption that the facts are as stated by the petitioner but are nevertheless insufficient to discharge the onus of proof upon him.

In respect of the decision of the special adjudicator, reference was made to the Asylum Appeals (Procedure) Rules 1996. Rule 2 (paragraph 3) thereof provides:

It was submitted that one should accordingly expect to see a structured approach to the decision given by the adjudicator. While the adjudicator sets out in his determination the reasons given by the Secretary of State he does not elucidate what findings in fact he makes nor is it clear whether or not he accepts the truth of the petitioner's application which is a fundamental consideration affecting any appeal before him. The adjudicator's determination was also criticised with respect to his reference that he has noted that the circumstances in the Punjab have significantly improved of late and in particular that there has been a significant decline in violence and a consequential decline in terrorist organisations and their activities. The special adjudicator had misdirected himself in that generalities as to the situation in the Punjab were of no relevance to the particular circumstances of the petitioner and he had simply repeated assertions made by the Secretary of State in this regard without applying his own mind to the situation.

It is of course important to bear in mind that the petitioner having chosen not to appear before him the special adjudicator was not in a position to reach a view as to his credibility. In respect of the factual basis of his decision I consider that it is evident that he too has proceeded upon the assumption that the petitioner's assertions are to be accepted pro veritate. I also consider that information as to the situation prevailing in the Punjab was a relevant consideration in the deliberations both of the Secretary of State and the special adjudicator and that they were entitled to have regard by way of general background to the material contained in the document which was before them prepared by the Home Office providing an assessment of the situation in India (No 7/2(iv)).

It is clear that a special adjudicator, like any decision-maker in a comparable role, must give clear and adequate reasons which deal with the substantial questions at issue in an intelligible way. As Lord President Emslie expressed the matter in Wordie Property Co Ltd v Secretary of State for Scotland 1984 S.L.T. 345 at page 348:

What the adjudicator says in his determination is:

It is accordingly clear that he has reached the view that the petitioner has failed to overcome the necessary burden of proof and in particular has failed to assert a sufficient factual basis to bring himself within the scope of the Convention. I am satisfied that his determination leaves the court in no doubt as to the basis of his decision and accordingly satisfies the test laid down in Wordie.

Mr Sutherland submitted further that the Secretary of State had erred in the approach adopted by him in paragraphs 2 and 5 of his determination. Paragraph 2 is in the following terms:

Reference was made to the Handbook on Procedures and Criteria for Determining Refugee Status and in particular to paragraphs 52 and 65 thereof. Paragraph 52 emphasises the subjective character of fear of persecution and paragraph 65 provides:

The Secretary of State had indicated by his reference in paragraph 6 of his determination to the fact that he could find no reason to believe that the police would not protect citizens of India from threats or investigate crimes against them that his view was that events such as those which the petitioner claims caused him to apply for asylum should be dealt with by the Indian authorities. He had erred by asking himself the subjective question of whether the Government of India was willing to take action and in so doing had applied the wrong test. Reference was made in this connection to Debrah v The Secretary of State for the Home Department [1998] I.N.L.R. 383 as authority for the view that the correct approach for the Secretary of State was to ask whether the protection which had been put in place by the State was in fact sufficient in respect of the individual whose case is being considered.

The subjective and flawed approach of the Secretary of State had been adopted by the special adjudicator who had also asked the question as to whether the authorities were in general willing to provide protection without looking at the particular circumstances of the petitioner and asking whether it could be considered that the protection offered was sufficient. The interview with the petitioner was capable of bearing the inference that having attempted to trap those who were threatening him and having failed to do so the authorities had washed their hands of the situation and were accordingly tolerating the continued persecution. As the special adjudicator had acknowledged, the petitioner would bring himself within the scope of the Convention if he showed that the group's activities were knowingly tolerated by the authorities or that the authorities were unable or unwilling to offer effective protection. Since what the petitioner has asserted was sufficient to bring him within any one of the three possibilities, it was inadequate for the special adjudicator to assert as a matter of generality the petitioner's failure to discharge the onus of proof to the necessary standard.

It is necessary when considering the material which was before the respondent to bear in mind that the onus was on the petitioner to bring himself within the requirements of the 1951 Convention relating to the status of refugees. In terms of Article 1A(2) a refugee is any person who:

It is clear that in order to discharge the onus of proof upon him the petitioner has to demonstrate both a current well founded fear and a causal connection between the fear of persecution and the membership of the particular group. The factual basis upon which the petitioner rests his claim is of course the interview record which discloses that in response to the question put to him "Who were your problems with in India?" his response was:

He was then asked whether their reason for threatening him was only to extract money from him and his response was:

It appears therefore that the petitioner categorises his refugee status by reference to his business activities and his claim to satisfy the Convention requirements rests on the slender basis of membership as a businessman of a particular social group. The effect, in my view, of his affirmation that the reason for threatening him was to extort money from him negates the existence of the necessary causal link.

Further, and in any event, in analysing the respondent's determination it is of course necessary to read the decision letter as a whole. When that approach is adopted it is clear that the Secretary of State acknowledged that the petitioner could bring himself within the scope of the Convention if he showed that a particular group's or individual's activities were knowingly tolerated by the authorities or that the authorities were unable or unwilling to offer effective protection; he can however find no reason to believe that the police would not protect citizens of India from threats or investigate crimes against them. On the basis of the facts put forward by the petitioner and in particular that the police went with him and attempted to trap those who were threatening him, I consider that was an appropriate conclusion for him to reach. The interview record in my view contains no factual basis whatsoever for the assertion that the authorities in India should be regarded as either unwilling to intervene or as condoning or tolerating the "persecution" in question. There is in particular no suggestion that having attempted once and failed to trap those responsible for threatening the petitioner, the police were thereafter unwilling to provide further assistance. It is in my view significant in this connection that the petitioner indicates no dissatisfaction with the efforts of the police; nor does he suggest that he made any complaint to anyone in authority either in the police force itself or in the Government department responsible for its administration.

In assessing the question of whether the authorities are to be regarded as being unable (as distinct from unwilling) to take action it is instructive that in the draft Guidelines for Harmonised Asylum Policy the matter is dealt with thus:

The view expressed on this matter in McDonald's Immigration Law and Practice (Fourth Edition at paragraph 12.40) is to the effect that the real underlying issue is whether the authorities should be regarded as condoning or as being complicit in the "persecution" in question. On that approach, and having in mind the nature and extent of the information provided, the petitioner's submission in this respect also falls to be rejected.

In these circumstances it follows that I am quite unable to say that the conclusion reached by the respondent that the petitioner did not suffer or risk suffering from persecution for a Convention reason is in any way unreasonable or unsound in law.

Mr Sutherland also submitted that the Secretary of State had erred in certifying the petitioner's claim in terms of paragraph 5(5) of Schedule 2 that is to say in finding that he had not established a reasonable degree of likelihood that he had been tortured. Reference was made in this connection to the Criminal Justice Act 1988 section 134 which provides:

It was immaterial whether the pain or suffering inflicted was physical or mental (UN Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment, 1984). In terms of his interview record the petitioner had stated that his life and that of his family had been threatened repeatedly over a period of a year by people who were terrorists and who had intimidated them by letter and by telephone to the extent that he feared for his life and that his wife and family were driven away from the area and he felt under the necessity of leaving the country. That was a sufficient basis to indicate that there had been a campaign of intimidation against him which ought to be viewed as amounting to torture. The Secretary of State had failed to recognise the import of what he had been told in granting the certificate under paragraph 5 and his decision in this respect should accordingly be reduced.

There can be no doubt that torture can be constituted by either physical or mental cruelty but the question which arises is whether the Secretary of State ought to have concluded on the basis of the material before him that there was a reasonable likelihood of actual torture of the petitioner. Torture constitutes an aggravated and deliberate form of cruel, inhuman or degrading treatment (Ireland v United Kingdom 1978 2 E.H.R.R. 25 at page 80). The test is clearly a qualitative one and I do not consider that what is asserted by the petitioner in the present case occasioned suffering of the particular intensity and cruelty implied by the word "torture" as it is understood. I am accordingly of the view that the Secretary of State was entitled to find as he has done and that his certification was appropriate.

It follows that I shall sustain the first plea-in-law for the respondent and dismiss the petition.