Scottish Court of Session Decisions

The petitioner, Harjit Singh, is a citizen of the Republic of India who entered the United Kingdom illegally on 20 January 1995. By means of a letter from a firm of London solicitors dated 3 February 1995 he applied to the Home Office for political asylum. Following a "method of entry" interview on 16 May 1995 and an "asylum" interview on 8 November 1995 the Home Office on 12 December 1995 issued a decision on behalf of the respondent Secretary of State for the Home Department whereby the petitioner's application for political asylum was refused. The petitioner appealed that refusal to a special adjudicator who, following a hearing on 24 April 1997, refused the appeal. Thereupon leave to appeal that refusal was sought from the Immigration Appeal Tribunal which, by a chairman's decision of 30 May 1997, declined to grant such leave. In this petition for judicial review the orders sought by the petitioner in statement 2 encompass reduction of all three of those decisions, but when the petition came before me for a first hearing Mr Sutherland, who appeared for the petitioner, stated that he did not seek reduction of the Secretary of State's decision. His challenge was directed to showing that the special adjudicator had erred in law. Those errors should have been apparent to the chairman of the Immigration Appeal Tribunal when considering whether to grant leave and it was accordingly contended that that decision was thus vitiated. Reduction of those two decisions would enable the petitioners to pursue his appeal of new. Counsel for the respondent did not take issue with that approach and consequently the argument was directed primarily to the validity of the decision of the special adjudicator.

It is convenient at this point to set out the principal parts of the asylum interview which formed the basis of the petitioner's claim for political asylum, the record for which is contained in no. 7/3 of process. The interview was conducted in Punjabi using an interpreter. It having been established by the interviewer that the petitioner left India using a passport in his own name which he had obtained in 1988 or 1989 but which had been kept by the agent who had arranged his passage and illegal entry into the United Kingdom, the interview proceeded thus:-

Following this interview the Secretary of State issued his decision on 12 December 1995. The decision letter is no. 6/1 of process. In that decision the Secretary of State noted, among other things, that while the petitioner was a member of the All India Sikh Student Federation (AISSF) that organisation was not a proscribed organisation and he did not consider that membership of that organisation constituted in itself grounds for the grant of asylum, especially as the petitioner's involvement appeared to have been at a very low level. The Secretary of State also noted, in summary, that the petitioner had held a passport in his own name and had been able to leave India without difficulty and that the petitioner had not sought asylum in France, to which country he had gone by air before entering the U.K. Adverting to the arrests in 1994 and then in January 1995 the decision letter states:

The letter goes on to state:

Through the agency of a Mr Williams, an immigration and nationality consultant, the petitioner lodged a notice of appeal to a special adjudicator against the Secretary of State's refusal. The ground of appeal set out in the notice was:

A hearing before the special adjudicator having been set down for 24 April 1997, Mr Williams wrote to the adjudicator's clerk by letter dated 21 April 1997 (no. 7/5 of process). Having narrated that he had read the notes of the asylum interview and the Secretary of State's letter Mr Williams stated:

The documentation enclosed with that letter forms no. 7/6 of process. It appears that, in keeping with the tenor of that letter, the petitioner did not give any oral evidence before the special adjudicator.

The determination of the special adjudicator, dated 24 April 1997, is no. 6/2 of process. Having set out, among other things, the appropriate low standard of proof to be applied in asylum claims, the determination letter proceeds thus:

From the submissions made to me it appeared to be accepted by counsel on both sides that the question before both the Secretary of State and the special adjudicator was whether the petitioner was a refugee within the meaning of Article 1(1A) of the United Nations Convention relating to the Status of Refugees as amended and, more specifically, whether the petitioner, owing to a "well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country...". It was also accepted that the onus of establishing that the petitioner came within that definition lay with the petitioner but that the question was to be decided by considering whether there was "a reasonable degree of likelihood that he will be persecuted for a Convention reason if returned to his own country" - R. v Secretary of State for the Home Department ex parte Sivakumaran [1988] 1 A.C. 948; Kaja v Secretary of State for the Home Department [1995] Imm A R 1. Reference was also made by counsel for both parties to the relatively well known dicta concerning the court's responsibility and the degree of scrutiny to be applied in asylum cases contained in the speeches in R. v Secretary of State for the Home Department ex parte Bugdaycay [1987] AC 514. Counsel for the petitioner made reference also to R. v Secretary of State for the Home Department ex parte Thirukumar [1989] Imm. A. R. 402. Reference was also made to paragraphs 66, 80, 196-7, 200-201 and 204 of the UNHCR handbook on procedures and criteria for determining refugee status and to the Opinion of Lord Macfadyen in Jaswinder Singh (19 November 1997, unreported, p.8-9).

Against that background of legal authority counsel for the petitioner put forward several criticisms of the determination of the special adjudicator. At the conclusion of his occasionally rather diffuse submissions he sought to summarise the criticisms as follows:-

First, the special adjudicator had failed to recognise (as the Secretary of State had similarly failed to recognise) the proper basis for the petitioner's claim by not accepting that the interest of the police in the petitioner was politically motivated.

Secondly, perhaps as a corollary of the first criticism, the special adjudicator had erred by not drawing what counsel described as the reasonable and natural inference that the police interest in the petitioner was not genuine but was prompted because the petitioner was politically active.

Thirdly, the special adjudicator's decision was vitiated by his failure to discuss or advert to the background documentation provided to him by the immigration consultant.

In the fourth place the special adjudicator had taken into account the fact that the Indian authorities had not stopped the petitioner from leaving India on his own passport. However, submitted counsel, the Secretary of State had not put forward any evidence that at the time when the petitioner left India there were in force passport controls such that he would have been stopped.

Fifthly, it was submitted that the special adjudicator had committed an error of fact by drawing an adverse inference from the fact that the petitioner had been in possession of a valid passport since about 1989.

In the sixth place, in remarking on the petitioner's not having sought asylum in France, the special adjudicator had committed an error of law by describing France as a "safe country", there being no evidence tendered by the Secretary of State to the special adjudicator to the effect that France was a safe country. In connection with this point Mr Sutherland referred to R. v Secretary of State ex parte Canbolat [1997] INLR 0198. As I understood the submission it was to the effect that an adjudicator could not proceed on the view that another member state of the European Union was a safe country in which to apply for asylum without specific evidence to that effect.

Seventhly, counsel submitted that it was evident from the determination that the special adjudicator had assumed that involvement in the activities of the AISSF at a low level automatically meant that the petitioner could not be open to persecution. He was not entitled to make that assumption.

Finally, as I understood it, counsel complained of a lack of clear expression by the special adjudicator of an "overall view" of the extent to which he accepted the accuracy of what the petitioner was saying.

In response Mr Murphy, who appeared for the respondent Secretary of State, stressed that the real question before the special adjudicator (and before the Secretary of State) was whether, applying the standard of proof described in Sivakumaran this particular applicant for asylum had demonstrated a well-founded fear of persecution for a Convention reason. A special adjudicator (as the Secretary of State before him) had to decide that issue on the material before him exercising his immigration judgement. If the special adjudicator was entitled to conclude that the petitioner had not made out a well-founded fear of persecution for a Convention reason, the petitioner failed at the first and important hurdle and the special adjudicator's decision could not be said to be unlawful. By way of support, for or illustration of, that approach counsel for the respondent referred to Sangha v Secretary of State for the Home Department 1997 S.L.T. 545 and the unreported decisions in Abdul Shakoor Bhatti (Lord Reed, 6 November 1998), Surjit Singh Kang (Lord Kingarth, 21 November 1997) and Sohil Kashmire (Lord Kingarth, 26 January 1999).

Adverting more specifically to the petitioner's contentions, counsel for the respondent submitted that in large measure they were really based on a misunderstanding or misreading of the special adjudicator's determination. The special adjudicator had addressed himself to the determining issue whether the petitioner had a well-founded fear of persecution for a reason which was a Convention reason and on the material before him the special adjudicator was fully entitled to conclude that the petitioner had not established that he had that refugee status. Although on one view the answer given at interview to question 20 suggested that the petitioner was arrested and beaten up because of his activity in rallies and demonstrations and the answer to question 40 might contain some ambiguity, nonetheless, read as a whole, it was evident that the petitioner's account given at the interview was that the arrests to which he referred took place in the course of the police investigation of actual allegations of crime. Put shortly, the answer of counsel for the respondent to the first of the two criticisms advanced by Mr Sutherland was accordingly that in carrying out his function of weighing and assessing the material before him, the special adjudicator could reasonably and properly construe the petitioner's account at interview as not disclosing any well-founded basis for fearing persecution for a Convention reason.

In my opinion the submissions of counsel for the respondent on this aspect of the case are to be preferred. I consider that the special adjudicator was entitled to take the view from the terms of what the petitioner said that his detention on three occasions for short periods by the police was because there had been robbery and a "firing" which the police were investigating and in which the petitioner was initially suspected of having involvement and because it had been alleged that the petitioner was in unlawful possession of firearms. It was accepted by counsel for the petitioner that, as recorded by the Secretary of State, Sikhs are not a persecuted group; the AISSF was not a proscribed organisation and the petitioner's involvement was at a very low level. I did not understand counsel for the petitioner to dispute that the special adjudicator was entitled to find that there was no reason to suppose that the petitioner's being a Sikh, or his being a member of the AISSF, would in itself involve him in any harassment or adverse attention from the authorities amounting to persecution. It was of course the special adjudicator's function to decide what inferences were properly to be drawn from the material before him and in the foregoing circumstances I do not consider that the inference suggested by counsel for the petitioner as being reasonable and natural, namely that the detention of the petitioner was harassment by the police brought about solely because of the petitioner's political activities, was one which the special adjudicator was bound to draw.

In responding to Mr Sutherland's third point, namely the omission of the special adjudicator to refer to the documentation consisting of the bundle of press releases etc. placed before the special adjudicator, counsel for the respondent submitted that having reached the conclusion on the basis of the information particular to the petitioner's own personal history and circumstances set out in the interview that the petitioner did not meet the criteria for being a refugee the materials were simply not relevant to the issue before the adjudicator. There was, he submitted, no need for an adjudicator to mention or discuss materials which were not contradictory of his reasoning and upon which no part of his decision depended. In that regard Mr Murphy referred to the opinions of Lord Reed in Bhatti (p.14ff) and Lord Kingarth in Kashmire (p.13ff).

Although at first sight it might appear strange that no mention is made by the special adjudicator of the bundle of press releases etc., I am persuaded that on this point also the submissions for the respondent are to be preferred. The factual circumstances of the two cases to which Mr Murphy referred are of course different. However in Bhatti Lord Reed, having noted that refugee status depends on the individual claimant having a genuine fear of persecution, expressed the opinion that the special adjudicator was correct to reject a submission based solely on evidence of a risk to the population in general and he later observed, in relation to press cuttings submitted in that case and said to bear on the generality of the situation in Pakistan, that such was not the relevant focus of inquiry. In Kashmire, Lord Kingarth observed in relation to general human rights materials lodged in that case and the question whether it was necessary for an adjudicator to refer to those materials expressly that the adjudicator had rejected the applicant's account for reasons personal to him and relative to the evidence said to bear directly on what happened to him. In those circumstances Lord Kingarth did not consider it necessary for the adjudicator to refer in that context to evidence which on the face of it would not have altered the reasoning upon which the adjudicator proceeded.

In the present case it appears to me that the special adjudicator likewise rejected the present petitioner's claim to asylum on the basis of the petitioner's personal circumstances and history. Since, for the intelligible reasons given by the special adjudicator, the petitioner's own account, properly evaluated, did not bring him within the category of a refugee, it was not necessary in my view for the special adjudicator to refer in his decision to material bearing on the general situation in the Punjab at various times including times ante-dating the events to which the petitioner referred. It may also be observed that the documentation was submitted by the immigration consultant as being relevant to the general situation and to counter what he perceived as the Home Office "line" in relation to the general situation in the Punjab. No particular item was said to be directly relevant and material to the actual situation of the petitioner. I would also add that although counsel for the petitioner referred to a number of items in the bundle, I did not find any of them to be pertinent to the determining issue before the special adjudicator.

I would further record that counsel for the respondent put forward as a subsidiary submission that in any event, even if the special adjudicator had wrongly omitted to mention the documentation, the chairman's decision recorded that "the Tribunal has read all the papers on the file". Accordingly the I.A.T. chairman had considered and referred to the documentation. As regards this submission I would simply observe that if I had concluded that it were necessary for the special adjudicator to deal expressly and in detail with the bundle of materials, I would not have been immediately inclined to hold such an omission to be compensated by such a recital in a decision to refuse leave to appeal.

The fourth criticism put forward by counsel for the petitioner I regard as being without merit. The special adjudicator simply notes (correctly) that the petitioner left on his own passport, without difficulty and without the authorities having attempted to prevent him from leaving India and it is, to my mind, apparent that the special adjudicator simply treats this as supportive of the view that the petitioner's detention was not to be inferred as prompted by political motives.

As regards the fifth criticism, to the effect that the special adjudicator wrongly drew an adverse inference from the petitioner's having possessed a passport since 1989 without leaving India prior to the first arrest, I agree with counsel for the respondent that this criticism involves a simple misreading of the terms of the special adjudicator's determination.

Turning to the sixth criticism (safe country), it is my view in the first place that the reliance put by counsel for the petitioner on the decision in Canbolat is misplaced. That case was concerned with the issue of a certificate under section 2(2) of the Asylum & Immigration Act 1996. I do not read the special adjudicator in this case as saying more than that France was a country in which the petitioner could appropriately have asked for asylum. The point was in any event one to which the special adjudicator attached relatively little weight.

So far as Mr Sutherland's seventh criticism is concerned, it appears to me to involve also a misreading of the terms of the special adjudicator's decision. I do not understand the adjudicator to be saying that membership of the AISSF at a low level means that the member cannot be subject to persecution. Rather what is said is that such membership in itself does not imply a likelihood of persecution. One looks accordingly - as did the special adjudicator - to see if there are other additional circumstances personal to the applicant from which a likelihood of persecution for Convention reason may be inferred. Accordingly, in my view, this criticism is without substance.

The same may be said of the final criticism advanced. It is plain to my mind that the special adjudicator did reach an overall view of the petitioner's account and concluded from it that there was no Convention reason for which the petitioner would be likely to be open to persecution.

I accordingly conclude that no error of law or other ground of invalidity in the decision of the special adjudicator has been demonstrated.

Insofar as the refusal of leave to appeal to the I.A.T. is concerned, as I understood counsel for the petitioner, he accepted that if the attack on the special adjudicator failed, the refusal of leave could not be assailed. In the circumstances of the present case I consider that that must be correct, the somewhat exiguous ground of appeal not suggesting that any new factual material was sought to be introduced. For completeness, however, I would add that in relation to the responsibilities of the I.A.T. in deciding whether to grant leave I was referred to the decision of Lord Penrose in Parminder Singh (unreported, 10 July 1998) in which the matter is discussed, under reference to other authorities, at p.22ff of the typescript.

In these circumstances the petition falls to be dismissed.