Scottish Court of Session Decisions

The petitioner is a citizen of Pakistan. He entered the United Kingdom on 8 September 1994. He sought entry for three weeks as a visitor. He was in possession of a sum of money and a return ticket to Jordan. He was given leave to enter and to remain in this country for six months subject to a condition prohibiting employment. On 15 January 1995, he was interviewed by the police in the course of unconnected inquiries. At that date, his leave to enter or remain was due to expire on 8 March 1995. He remained after the expiry of that period without leave. On 13 April 1995, immigration officers found the petitioner working in a restaurant in Elgin. He asserted that Immigration Advisory Service, Glasgow had claimed asylum on his behalf in March. Mr Nabi of I.A.S. was contacted and confirmed that an application had been made. The petitioner's first application for asylum was made thereafter by fax on 18 April 1995. The petitioner was interviewed at Aberdeen on 16 May 1995. By letter dated 7 January 1997, his application for asylum was refused on the ground that the Secretary of State was not satisfied that the petitioner had a well-founded fear of persecution within the terms of the 1951 United Nations Convention relating to the Status of Refugees. The petitioner was informed that he had no right of appeal against that decision because his application had been made after expiry of his limited leave to enter or remain in the United Kingdom.

On 20 August 1997, the Secretary of State made a deportation order against the petitioner under section 5(1) of the Immigration Act 1971. The petitioner appealed against that order to a special adjudicator. After a hearing held at Glasgow on 21 November 1997, the special adjudicator dismissed the appeal. Thereafter leave to appeal to the Immigration Appeal Tribunal was refused on 20 January 1998. In the petition, the petitioner challenges both decisions. In addition the petition contained averments that the petitioner married, on 23 December 1997, Shabana Naemat, a citizen of the United Kingdom, and that on 7 January 1998 the petitioner's agents sought leave for him to remain in the United Kingdom as her spouse. That application was refused on 27 February 1998. The averments and plea in law relating to marriage were deleted by amendment, and I was informed by Mr Bovie, who appeared for the petitioner, that there was now no challenge of the refusal of leave to remain in the United Kingdom on the ground of marriage.

The petitioner seeks declarator that the special adjudicator erred in law in holding that the petitioner had failed to establish that his removal would be contrary to the Convention. He also seeks reduction of that decision. He further seeks declarator that in refusing leave to appeal, the Immigration Appeal Tribunal erred in law and reached an unreasonable decision, and he seeks an order for reduction of that decision also. There is no attack on the regularity of the procedures relating to the deportation order as such.

Mr Bovie invited me to follow the approach adopted by Lord Macfadyen in Singh v Secretary of State for the Home Department 1998 S.L.T. 1370 in dealing with the decision of the special adjudicator. At page 1374, Lord Macfadyen provided a collation of dicta from the authorities in expanding on the obligation of an adjudicator to give reasons for his decision. These were, (1) a quotation from the opinion of Lord President Emslie in Wordie Property Co. Ltd. v Secretary of State for Scotland 1984 S.L.T. 345 that the decision must "leave the informed reader and the court in no real and substantial doubt" as to the reasons for the decision and the material considerations taken into account in reaching it; (2) a quotation from the opinion of Schieman J in R. v Immigration Appeal Tribunal, ex p. Amin [1993] Imm.A.R. 367 that:

and (3) a quotation from the opinion of Collins J. in R. v Secretary of State for the Home Department , ex p. Chugtai [1995] ImmAR 559 that:

He also referred to a comment by Lord Prosser in Zia v Secretary of State for the Home Department 1994 S.L.T. 288 that it was not enough that an adjudicator might in theory have had comprehensible reasons; the reasons must be sought in the reasons stated and nowhere else. At a late stage in the hearing Mr Bovie also referred to Lord Kingarth's opinion in Chinder Singh v Secretary of State for the Home Department, 9 September 1997, where the same authorities were referred to along with Mechti v Secretary of State for the Home Department 1996 S.C.L.R. 998. Relying on these observations, which he sought to apply cumulatively, Mr Bovie took me through all thirty-eight paragraphs of the special adjudicator's decision letter, and twenty-nine of the thirty-six pages of the report of the petitioner's interview on 16 May 1995 as part of a process of analysis from which he sought to deduce what he submitted was the factual foundation of the petitioner's claim for asylum, and the evidence relevant to it, and thence to identify deficiencies in the findings in fact made. In doing so Mr Bovie took particular encouragement from the observations in Amin and Chugtai.

Mr Bovie submitted that the factual core of the petitioner's application could be identified in the record of his interview. The petitioner was a Sunni Moslem. He had joined the Sipah Sahana party on 30 September 1989. The party's object was to defend Sunni ideology, and, in particular to preserve the status of the Companions of the Prophet Mohammed. His evidence had shown a clear understanding of the party, of its manifesto, and of its objects. The petitioner stated that he was the local secretary of the party in Jhelum, and outlined his duties as such. He had shown an understanding of the political and religious differences between the Sunni and Shia Moslems, and had given a clear account of the violence which characterised their relationships. The Shias abused and assaulted the Sunni. The petitioner had organised and had taken part in demonstrations in protest against Shia attitudes in 1991 and 1992, the last being on 1 May 1992. Often the Shia attacked Sunni demonstrations, throwing stones and firing guns. On 1 May 1992, three Sunni were killed, and in retaliation the Sunni returned fire, and a few Shia were killed. The petitioner was managing the demonstration, and along with two or three others was trying to keep the demonstration peaceful. After the demonstration the Shias had filed complaints against a number of individuals including the petitioner. The police were trying to arrest him, and the Shias were trying to kill him. He went into hiding in Jhelum. The police searched for him but could not find him. Party men told him of the police activities. He was out on a motor cycle on 30 August 1992, when Shias tried to kill him. His party suggested that it would be better for him to leave the country and arranged a visa for him to visit Saudi Arabia. He was afraid to return to Pakistan. Though presented with this evidence, which was the core of the petitioner's application, the special adjudicator made inadequate reference to it in his decision, failed to explain what parts of it he accepted as credible and reliable, and, in arriving at his decision, made no findings in fact about several aspects of the matters narrated. These facts were the foundation of the petitioner's claim for asylum. Any adjudicator determining such an application required to give reasons, and in line with that duty required to give reasons for accepting or rejecting the evidence available. That involved analysing the key features and providing observations on each including reasons for accepting or rejecting the evidence tendered. The case was about the petitioner's claim for asylum. The adjudicator had dealt only with peripheral matters, such as the way the petitioner had arrived in the United Kingdom. Mr Bovie did not suggest that the matters discussed were irrelevant, but in his treatment of them the adjudicator had allowed them to eclipse any treatment of the central issues in the claim. One was left in ignorance of which elements of the claim the adjudicator accepted and which he rejected. For example, there was evidence that the petitioner was in Saudi Arabia. The adjudicator accepted that. There was also evidence that Saudi Arabia was friendly towards the petitioner's party, that the petitioner went there at the suggestion of his party, and that he did not work while he remained there. Those features might have supported the petitioner's case that he was a member of the Sipah Sahaba party, but were not made the subject of findings in fact. There was a world of difference between a person who failed to establish any political knowledge and involvement and one who demonstrated such knowledge and involvement where fear of persecution was at the heart of the matter. That applied even where what was shown was consistent with generally known facts. Consistency with generally accepted knowledge was important. But the adjudicator did not deal with the matter. If it had been accepted that the petitioner was

Mr Bovie deleted by amendment the second ground set out in the petition, namely that there was an error in law in the adjudicator's decision that police investigations of criminal allegations was not persecution in the context of what was described as "the established conduct of Pakistani police". He proceeded to develop the original third ground of criticism of the adjudicator's decision. The reasons given for rejecting the petitioner's credibility were illogical. The argument proceeded on two allegations. The adjudicator had regard to material which suggested that the petitioner had given false information in obtaining a passport in Riyadh, but at the same time recognised that an asylum seeker might require to give false information for that purpose. It was illogical and irrational to have regard to such a factor in the circumstances. Secondly, the adjudicator had relied on a perceived inconsistency between the claim that the petitioner had been in hiding in Jhelum, and the claim that he had been shot at by Shias when on a motor cycle. He had adopted the least favourable interpretation of the evidence. It was as if the adjudicator has assumed that Jhelum was a small village instead of a major town, so that going out exposed the petitioner to the view of everyone. The court should not support the adjudicator in identifying possible inconsistencies in this way. There had to be a finding of a substantial inconsistency before one could rely on it. If any of the matters relied on by the special adjudicator in forming a view on the petitioner's credibility were found wanting, that undermined the determination as a whole. One would be left without information about the basis on which the adjudicator had proceeded, and would be unable to be satisfied that he had directed himself properly. He invited me to grant the declarator and reduction sought.

For the respondent, Mr Lindsay contended that there was no merit in the petitioner's arguments relating to the decision of the special adjudicator. The adjudicator's decision had to be read as a whole. The language of the decision should not be treated as words of a statute, and were not to be taken out of context: R. v Secretary of State for the Home Department , ex p. Guhad [1997] Imm.A.R. 1. If the correct approach were adopted, there was no error in law in the adjudicator's determination. Mr Bovie had taken passages out of context. The respondent did not challenge Lord Macfadyen's general approach in Singh. But it was not the whole story. Lord President Emslie's statement of general principle had to be applied in the context of the issues which were material in asylum applications. Schiemann J.'s comments, if applied literally as Mr Bovie proposed, would require every decision to contain a categorised analysis of every piece of evidence. That cannot have been what the judge intended. One had to apply common sense and judgment. So far as concerned the observations in Chugtai the respondent accepted that there was a more onerous obligation on a special adjudicator to explain decisions on credibility than there would be on a judge of first instance, for the intangible reason that there tended to be more sensitivity than in ordinary litigation. (I should observe that but for the respondent's position I would have inclined to the view that a decision on credibility was always a sensitive issue.) There were qualifications of the widely stated principle in Wordie than one had to acknowledge. Sometimes there were matters of fact so obvious that there was no reason to state them. It was never necessary to deal expressly with every last factor or issue: R. v Immigration Appeal Tribunal, ex p. Khan [1983] 1 Q.B. 790 at page 794. A deficiency of formal findings or reasoning will only afford a ground for reduction if the petitioner can demonstrate prejudice. The aim of the adjudication process was to inform the applicant, not to keep lawyers employed. One was not concerned with academic or abstract matters: Macdonald's Immigration Law and Practice fourth edition page 612, paragraph 19.115, and Save Britain's Heritage & Number 1 Poultry Ltd. [1991] 1 W.L.R. 153 at pages 167-168. The commentary in Macdonald was clearly correct. In this case the adjudicator had explained each point which influenced his decision on credibility: the delay in leaving Saudi Arabia; the use of his own passport; the giving of false information in Riyadh; and the failure to apply for asylum on arrival. The petitioner was left in no doubt about the reasons for the decision or the basis of the decision. There were no flaws, and in any event there was no hint of prejudice to the petitioner. Mr Lindsay took me through substantial parts of the decision letter in expanding on his argument. The adjudicator had set out his reasons clearly and logically.

In dealing with Mr Bovie's individual grounds of attack, Mr Lindsay submitted that one could challenge findings in fact only on grounds of Wednesbury unreasonableness, a very high standard. It was in that context that one had to have regard to the requirement for "anxious scrutiny" of the adjudicator's decision. One had to have regard, in any event, to the legislative structure which now existed for the protection of the interests of asylum seekers. Though asylum claims could relate to life and death situations, the same applied to many areas, such as homelessness, qualification for social security benefits and other matters which were of importance to the applicant. It was illogical, if not offensive to those applicants, to place asylum seekers in a different category. There should be equality before the law. In the context of Wednesbury unreasonableness, it was not enough for the petitioner to show that other possible factual conclusions could have been arrived at on the evidence. He could only succeed if it could be demonstrated that no reasonable adjudicator would have made the assessment of credibility which was arrived at on the evidence before him. At best Mr Bovie was arguing that the evidence was ambivalent and uncertain. The petitioner had had the opportunity to clarify the position by giving oral evidence. He had not done so and now contended that the adjudicator should have put a favourable gloss on every matter of doubt because there had been no oral evidence. The approach was flawed. The correct approach was set out by Lord Macfadyen in Rae v Criminal Injuries Compensation Board 1997 S.L.T. 297 at page 291. The present case could not be brought within the test set out by Lord Diplock in Council of Civil Service Unions & Minister for the Civil Service [1985] 1 A.C. 374 at page 410. It was incorrect to say that the adjudicator had not considered the broad consistency of the petitioner's evidence. He made it clear that he had carried out a balancing exercise. Having listed the inconsistencies which influenced him, there was no need to list the consistencies which, ex hypothesi, had not been persuasive.

Mr Bovie made further submissions in response. He argued that Save Britain's Heritage & Number 1 Poultry Ltd. had not been followed in Scotland, and had not been applied outwith the field of planning law: Mirza v City of Glasgow Licensing Board 1996 S.L.T. 1029. The case was in any event special and depended on planning rules. The objectors had no statutory rights of objection, and could not be prejudiced. If prejudice were an issue, the petitioner in the present case would clearly suffer prejudice in the relevant sense.

In my opinion, the approach for which the respondent contended in this case is generally to be preferred. It appears to me that nothing could be more destructive of the efficient disposal of immigration appeals than the notion that the adjudicator and the tribunal are under an obligation to carry through a mechanical process of narration of the evidence, analysis of it into classes, and explanation factor by factor of the relevance, or irrelevance, credibility and reliability or otherwise of it. While the Lord President's choice of language in Wordie Property Co. Ltd, when he referred to "material considerations", may have reflected the planning context of that case, the statement provides a more reliable guide to what is required, namely, a decision which instructs the informed reader and the court of the reasons for the decision and the material factors which instructed it in a way which leaves no real or substantial doubt what those reasons were. That approach is also reflected in the opinion of Lord Lane C.J. in Khan, where he said:

Macdonald's commentary on the decisions at page 612, paragraph 18.115, appears to me to be sound. Whether it is essential to identify some particular prejudice to the petitioner before his challenge of the decision complained of can succeed may be a different issue. It may depend on the general approach to the wider issue involved. If Mr Bovie's general approach to the dissection of an adjudicator's decision in pursuit of breaches of the rules as perceived by him were correct, some test of prejudice to the petitioner might be required as a control of counsel's analytical zeal. If the general approach is properly focused on the substance of the issue, prejudice resulting from failure by the adjudicator or the tribunal may be may be so obvious that independent consideration of that topic would be pointless. Save Britain's Heritage & Number 1 Poultry Ltd was a planning case, and that raised issues particular to planning law and practice. It is not obvious, however, that the reasoning of Lord Bridge should be treated as applicable solely in that context. Wordie Property Co. Ltd was also a planning case. Lord President Emslie's observations on prejudice no doubt were made in that context. Lord Justice Clerk Ross's observations in Mirza v City of Glasgow Licensing Board may not reflect fully the similarity of context between the two earlier cases. But it is, in my view, unnecessary to resolve the question for present purposes. Lord President Emslie's test is expressed in terms which would exclude as grounds of review the insignificant, the irrelevant and the immaterial. Significant, relevant and material grounds of appeal, duly made out, would be likely to instruct prejudice in most if not all cases. If the present decision failed to communicate the reasons for the adjudicator's determination of any material fact it would obviously be to the petitioner's prejudice since it would affect his ability to instruct proper grounds for application for leave to appeal. To identify prejudice as if it were a separate factor would be pure formality. It appears to me to be preferable to avoid such an approach.

The adjudicator in the present case set out in his decision the issue which he had to decide. The petitioner had to establish that owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, he was outside the country of his nationality and was unable, or, owing to such fear, was unwilling to avail himself of the protection of that country. For his fear of persecution to be well founded, he had to demonstrate only a reasonable degree of likelihood of being persecuted for a Convention reason if returned to his own country. He set out the authorities which he considered had a bearing on the issue and to the facts and circumstances which were relevant to it. There was no criticism of the paragraph specifying the issue before the adjudicator. It is clear that he addressed the correct issue. It is equally clear that he was conscious of the difficulties in reaching views on credibility when the applicant, whose credibility was crucial, did not give oral evidence before him.

The first chapter of evidence discussed by the adjudicator in elaborating his views on the petitioner's credibility related to the petitioner's passport. In 1992 he held a valid passport. At interview he said that his party arranged a visa for him to visit Saudi Arabia. The respondent's comments on the petitioner's ability to obtain a visa in his own name, and to leave Pakistan on that basis (which he did on 3 September 1992), are noted by the adjudicator. The petitioner went on to obtain a new passport, again in his own name, in Riyadh on 7 May 1994. His date of birth was given accurately. His occupation was given as "labour". This was inconsistent with information provided to United Kingdom immigration officers. The petitioner explained the false information on the basis that had he disclosed that he was a landowner verification of that claim might have taken longer. Having obtained the new passport, he did not leave Saudi Arabia until September 1994. He blamed this on delay in obtaining a United Kingdom visa. The adjudicator was concerned about the position, and the inconsistencies which he identified, and clearly considered the issue closely. He considered that the petitioner's credibility was further damaged by his failure to claim political asylum on entry, and persistent failure to make a claim until after his apprehension following the expiry of his leave to enter. There was an inconsistency relating to the date of instructions to apply for asylum which his representative failed to resolve. The adjudicator was concerned about inconsistencies in the narrative of the events of 1 May 1992, and the apparent attitude of the authorities to the petitioner thereafter. He discounted the first information report produced and relied on by the petitioner for intelligible reasons which were not challenged before me. He made observations on the inconsistencies inherent in the claim that the petitioner had remained in hiding in Jhelum for four months after the incident, but that when he was out riding a motor cycle on 30 August 1992, (three days before his departure to Saudi Arabia) Shia opponents were able to shoot at him. The adjudicator made further adverse comments on the petitioner's credibility in the light of his conduct in Saudi Arabia, and his failure to account for the period between June 1993 and May 1994. Having set out these concerns, he comments in the twenty-ninth paragraph of his decision on the approach adopted in the light of the petitioner's failure to give oral evidence, and concludes that he was not satisfied that the petitioner's account was credible. He then refers to his inability to form a view on the petitioner's membership of Sipah Saheba, and comments that in any event that party is a lawful political party and membership alone would not provide a well-founded fear of persecution. He finds that the petitioner had not satisfied him that he was a target for sectarian violence. Finally he deals with the police investigation on the assumption that the petitioner had established that he was wanted for murder, and makes the comment often encountered in such proceedings that any fear associated with that factor would be a fear of prosecution rather than persecution.

In my view the criticism of Mr Bovie's approach presented by Mr Lindsay is well founded. The adjudicator has set out his analysis of the concerns he had in detail and with care. One might say that his decision shows anxious scrutiny of the question of credibility. He has not set out all of the factors on which he might have relied had he considered the petitioner to have a valid and credible claim. I can see no sound reason why he should have done so. A finding on credibility is not the result of some points system of analysis in which each positive and each negative element has a given value with the decision turning on the aggregate in each class. A false account will often be developed around a skeleton of true facts. The truth and the applicant's knowledge of the truth may be attributed to his experience, observation of others, his general reading, or tuition, or to any number of other factors singly or in combination. The applicant may be an uneducated individual, or, as appears to be the position in this case, a highly educated individual. The legitimate expectation of the adjudicator as to the sources of information available may vary as between individuals at the extremes of these classes. Further, on simple logical principles, positive knowledge of generally available information has little weight, whereas ignorance of generally available facts may negative a claim. One should be slow to reduce the adjudicator's function in assessing credibility to a mechanical exercise. In my opinion, the criticism of the special adjudicator's general approach is without foundation.

Further, I consider that the particular criticisms based on Wednesbury unreasonableness are without substance. In relation to the petitioner's passport application in Riyadh, there is no lack or logic or fundamental reasonableness in recognising as a generality that asylum seekers may require to resort to dishonesty to obtain travel documents, and finding that the particular applicant has failed to bring himself within the class of person who might have done that or a set of circumstances in which such action might have been intelligible. The adjudicator gives ample reasons for his view. The second particular attack related to the twenty-fifth and twenty-sixth paragraphs of the decision, and the inconsistency identified in the petitioner's claims about his position in Jhelum following the incident of 1 May 1992. There is no weight in the criticism. Another adjudicator might have made less of the point, but that does not indicate Wednesbury unreasonableness. In any event, I consider that Mr Lindsay was correct in contending that it would not be enough for a petitioner to identify some single inconsistency or illogicality, which might have little significance and irrespective of whether it was prejudicial to the claimant, and to ignore the context of the decision as a whole.

I therefore reject the petitioner's attack on the special adjudicator's determination.

In developing his criticism of the tribunal's refusal of leave, Mr Bovie emphasised that the tribunal, unlike the court, had a wide jurisdiction. It was not restricted to giving relief for error of law. I expressed certain views on the jurisdiction of the tribunal in Parminder Singh Petitioner 10 July 1998. I then accepted Mr Lindsay's submission that if there were no defect in the special adjudicator's determination, there could be nothing wrong with the refusal of leave to appeal. In the present case, however, Mr Bovie developed the argument. The wide jurisdiction of the tribunal meant that it was not sufficient to consider whether the tribunal had failed to detect an error of law. It was legitimate to criticise the tribunal if it failed to detect a matter of concern about the approach adopted by the adjudicator in assessing credibility. If there was an arguable case that the adjudicator had adopted a wrong approach in that matter, no reasonable chairman would have taken the view that leave to appeal should be refused. One had examples of the proper approach in the tribunal decisions in Fiaz Rasool 25 April 1995, and Surjit Singh 6 August 1998. In this case it was unsafe to rely on the adjudicator's decision, and an appeal should have been allowed to proceed. He referred to Jaswinder Singh v Secretary of State for the Home Department, a decision of the second division dated 4 December 1998. The court had to be left with a sense of confidence that the tribunal had had regard to all material circumstances. The decision of the extra division in Hanif v Secretary of State for the Home Department 2 December 1998, showed the range of options open to the tribunal following a decision that the adjudicator had erred. The opportunity for a rehearing with additional evidence was a factor of importance in dictating the proper approach of the tribunal in considering an application for leave to appeal. There were two issues, whether having regard to the grounds of appeal before him the chairman should have identified an error of approach which justified the grant of leave, and whether apart from the grounds of appeal, he should have found an error and granted leave. The ground of appeal was in these terms:

No further grounds were lodged. Mr Bovie submitted that whereas to the uninformed reader the ground of appeal might be less than helpful, it had to be understood against the background of general practice in tribunal cases. There was a focus on the factual account given by the applicant, and the stated ground would have been understood in context to open up the issue of the treatment of the petitioner's credibility. The basis of the alternative submission was the decision in Robinson v Secretary of State [1997] ImmAR 568. It was the duty of the tribunal to identify for itself obvious points or appeal which had a strong prospect of success. "Obvious" was given a technical meaning, that is, a point which had a strong prospect of success, no matter how abstruse it might be or difficult to identify in the decision. In this respect, he submitted that I had adopted the wrong approach in Parminder Singh. The tribunal should have appreciated in this case that the adjudicator's failure to address the key parts of the petitioner's core account was a fundamental error. In this respect Parminder Singh was in any event distinguishable. The analysis of the adjudicator's determination in this case showed that there was a strong prospect of success in an appeal before the tribunal. Given the force of the criticism of the adjudicator's reasoning, no reasonable tribunal chairman would have failed to hold that such an argument had strong prospects of success. Therefore no reasonable chairman would have refused leave to appeal.

Mr Lindsay argued that the attack on the tribunal's refusal of leave was not an independent ground of judicial review. If there was nothing wrong with the adjudicator's decision, there could be no attack on the tribunal's refusal of leave to appeal: Parminder Singh. Even if Mr Bovie were correct in defining the scope of the tribunal's obligation to inform itself of possible grounds of appeal, there was no error here which gave the petitioner strong prospects of success in an appeal. But his test was wrong.

In my opinion the ground of appeal in the present case was hopelessly lacking in specification or substance. It amounted to no more than an invitation to the appeal tribunal to take a different view of the evidence. The suggestion that the decision was not in accordance with law clearly was without substance, and was not pursued. The application was submitted by a specialist agency. Mr Bovie's contention that it might mean more in the context of immigration practice than the language indicates is without merit. Whatever the specialist characteristics of immigration law and practice one must avoid treating this field of practice as a mystery. The primary duty of those representing appellants is to focus for the appellate tribunal grounds of appeal which provide the context for considering whether the adjudicator's decision was a proper one. The ground of appeal in this case plainly failed to do that, and it is not open to the petitioner to complain that the tribunal failed in the exercise of its jurisdiction in not reading into the ground of appeal what the petitioner's agents failed to express. In Parminder Singh Petitioner I considered Mr Bovie's argument on the scope of the wider duty of the tribunal to identify for itself deficiencies in the procedures or approach or reasoning of the adjudicator. I was not persuaded on this occasion that a different approach was appropriate. Since the jurisdiction of the tribunal is not restricted to error of law, but may in appropriate cases extend to re-hearing the facts of the case, there must be situations in which it would be appropriate for an appeal tribunal to entertain an appeal when the court would be incapable of reviewing the decision on Wednesbury principles. The scope for this is illustrated in Mohammed Hanif. In Fiaz Rasool, there is an example of the tribunal's approach to the case where errors of assessment of material had been identified by the appeal tribunal. There were held to be plain errors in the assessment of the evidence and errors of fact in the adjudicator's findings. There is no similar failure in the present case, and one can look on the tribunal's decision in that case as no more than an illustration of a reasonable course for the tribunal to have adopted where there were palpable errors of that kind. The brief decision in Surjit Singh suggests that there were major deficiencies in the findings in fact. Again that criticism cannot be levelled against the present decision. However, in my view, it would be a fundamental error to use the particular decisions of these tribunals as the basis of any rule of general application. They are no more than particular illustrations. Mr Bovie's attempt to present them as models which had to be followed was not persuasive. The question for the court, in a case such as the present, as is recognised in the petition, is whether the tribunal erred in law in refusing leave to appeal. For all practical purposes, that question depends on the application of Wednesbury principles in this case. No other error of law has been suggested. In my opinion there is nothing in the opinion of the Lord Justice Clerk in Jaswinder Singh which is inconsistent with that approach.

In my opinion there was no error on the part of the special adjudicator in this case which the appeal tribunal should have identified either from the application for leave to appeal or from reading the decision. I shall repel the first and second pleas-in-law for the petitioner, sustain the first and third pleas-in-law for the respondent and refuse the prayer of the petition.