Freely Available British and Irish Public Legal Information
[Home] [Databases] [World Law] [Multidatabase Search] [Help] [Feedback]
Scottish Court of Session Decisions
You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Singh v Secretary Of State For The Home Department [1999] ScotCS 310 (26 October 1999)
URL: http://www.bailii.org/scot/cases/ScotCS/1999/310.html
Cite as: [1999] ScotCS 310
[New search] [Help]
Singh v. Secretary of State for the Home Department [1999] ScotCS 310 (26 October 1999)
EXTRA DIVISION, INNER HOUSE, COURT OF SESSION
|
Lord Kirkwood Lady Cosgrove Lord Allanbridge |
P35/14A/98 OPINION OF THE COURT delivered by LORD KIRKWOOD in RECLAIMING MOTION on PETITION and ANSWERS by PARMINDER SINGH Petitioner and Reclaimer; against SECRETARY OF STATE FOR THE HOME DEPARTMENT Respondent: for JUDICIAL REVIEW _______ |
Act: Bovey, Q.C.; Drummond Miller, W.S. (Petitioner and Reclaimer)
Alt: Murphy; R. Henderson (Respondent)
26 October 1999
This is a reclaiming motion against the interlocutor of the Lord Ordinary dated 10 July 1998 in terms of which he dismissed the petition for judicial review brought at the instance of Parminder Singh.
Parminder Singh (hereinafter referred to as "the petitioner") is a citizen of India. He entered the United Kingdom illegally and was apprehended by immigration officers on 25 May 1995. After his apprehension he applied for political asylum, his application was refused and a decision was taken that he should be returned to India. He appealed to a special adjudicator but his appeal was dismissed on 30 October 1995. He applied to the Immigration Appeal Tribunal for leave to appeal against the decision of the special adjudicator but leave to appeal was refused in November 1995. He then presented a petition for judicial review and in December 1995 he was liberated by order of the court pending the outcome of the petition. In October 1997 his solicitors withdrew from acting because of his failure to fund the proceedings. On 5 May 1998 the petition was dismissed on the unopposed motion of the respondent. The respondent again initiated procedures for the petitioner's removal from the United Kingdom and, the day before the petitioner was due to be flown out of the country, he presented the present petition for judicial review.
Following his apprehension in May 1995 the petitioner was interviewed on two occasions, namely, on 29 May and on 1 June. On each occasion an interpreter was present. At the time of the first interview a document bearing to be an arrest warrant was found among the petitioner's possessions. It was in English and bore to have been issued by the judicial magistrate at Garhshankar in Hoshiarpur on 17 October 1993. It was in the following terms:
" W A R R A N T O F A R R E S T
In the Court of Shri. U.S. Momi, PCS, Judicial Magistrate 1st Class, Garhshankar
State vs Parminder Singh son of Shangara Singh resident of Village
Chandeli, Tehsil Garhshankar Distt. Hoshiarpur.
U/Ss 212,216, IPC, 3, 4, 5 TD(A) Act.
Fir No 181 dated 14-10-1989.
P.S. Mahil pur.
Name and Designation of Person who is to Executed.
Whereas Parminder Singh son of Shangara Singh of Village Chandeli, PS Mahilpur, Distt. Hoshiarpur. stands charged with the offence of mentioned
above.
You are hereby directed to arrest the said Parminder Singh son of Shangara Singh and produce him before me on or before 26-12-1993.
Given under my hand and the seal of the Court this 17-10-1993.
U.S. Momi
Judicial Magistrate 1stC
Garhshankar, Distt. Hoshia."
The warrant, which may have been a photocopy, bore what appeared to be an official stamp.
In the course of the first interview the petitioner initially stated that he had come to the United Kingdom in 1991, but he then said that he would tell the truth and that he only came to this country in 1994. He admitted that he had entered the country illegally, having been hidden in a lorry which had been driven from Germany. The later stage of the interview proceeded as follows:
"Q. Is there any reason you cannot return to India?
A. There is a problem with the police if I go back.
Q. What problem is that?
A. About a year ago, my younger brother Gurvinder Singh was killed. He
was a police constable and was hanged whilst off duty in Chendeli.
Q. How does this affect you?
A. Also before I left India I was arrested and kept in the custody of the local
police. There was a bus stop type place with a shop beside it where we used to drink in a group in our leisure time. One of our villagers was too drunk and asked for another glass of wine and then fell unconscious. We put him on a bullock cart to the village, but he was found to be dead on his arrival there. The police arrested all 4 of us and I was kept in custody for 5 days, during which time I was physically beaten. The police accused us of the murder and tried to make us confess. They could prove nothing so they let us go after 5 days and the case was not taken to court. I left my village because I was scared and went to my grandmother's village about 5 miles away. I lived there for about 5 months in terror as the police never left me alone. Then I decided to leave India.
Q. Are you still frightened to return to India?
A. Yes.
Q. Are you saying you now wish to claim asylum in Britain on the basis of
the criminal case?
A. Yes.
Q. My colleague has found a warrant of arrest in your belongings. Does this
relate to your case?
A. Yes it does as does this letter from my mother which accompanied the
warrant (letter written in Punjabi presented to me).
Q. Are you still fit and well?
A. Yes.
Q. Have you understood all the questions asked to you in Punjabi by
Mrs Siddiqui?
A. Yes."
The letter from the petitioner's mother, which was undated, stated inter alia that there was a warrant out for the petitioner's arrest and that the police were searching for him and had taken both his brothers who had been severely beaten and questioned about his whereabouts. Many of his companions had been killed. The letter advised the petitioner not to return to India and stated that his life was in danger.
The second interview took place after the petitioner had applied for asylum and he was accompanied by Mr. Seils, a solicitor who was employed by the Scottish Refugee Council. The interview was recorded in manuscript and, as the Lord Ordinary observed, it is not easy to follow. The petitioner was asked what was his method of leaving his own country and whether he had encountered any problems on departure. In reply, he stated:
"The police were after me and so were a gang of boys who wanted me to put up posters. I was married by then and no longer putting up posters. My wife wanted me to stop also she was in fear for my life."
He explained that the police wanted him because of the posters that he used to put up. The posters were for independence for Khalistan and he had started to put up posters in 1986 but had stopped doing so in 1989. In 1989 the gang had approached him to put up posters again and they had had "weapons, guns and the like and used to threaten me if I didn't go with them". He said that he had been detained by the police for five days in 1986, for 15 days in 1987 and thereafter for short periods. He was asked why he had been detained in 1986 and he replied: "I've told you already that we were kept inside. The police were after us, they had a case against us for the murder of a boy".
In connection with that reply he went on to give the following account:
"We were drinking in a bar called MALPUR, there were 4 of us - we were all drunk, there were 4 of us. He was drunk too. He had a 1/2 bottle in his hand and he took a glass from us. There was a big plough and we left him on that which somebody was pulling and he got home and the next thing we knew. We sent him home while he was drunk and we found out next morning that he had died, he'd been beaten by his family. The boy's family reported it to the police 2 or 3 days later that he had been murdered and I and my friends' names were given. All 4 of us were mentioned in the report to the police. As soon as the police received the report we were arrested and that's when I was detained for 5 days. It was after I was released that I started to put up the posters with my friends, out of anger and that is after I was beaten by the police. For 5 days I was continuously beaten inside."
He stated that a police chief saw their bruises, they were released and the case was then dismissed. He went on to say:
"The dead boy's family bribed the police with money to restart the case again and that's when we continued with the poster campaigns. We were getting tortured from both sides, those of us who didn't wish to continue with the posters, from the police and the gangs."
When he was asked about the detention in 1987 he said that it was "again connected with the posters that we were putting up and the dead boy's family. They were continually bribing the police".
In June 1995 the respondent refused the petitioner's application for asylum. In the decision letter it was stated that the respondent was not satisfied that the petitioner had a well-founded fear of persecution in India within the terms of the 1951 United Nations' Convention relating to the Status of Refugees. In relation to the arrest warrant the respondent "noted that by your own account the arrest warrant you submitted refers to the death of your friend and he is therefore of the opinion that you fear prosecution rather than persecution".
The hearing before the special adjudicator proceeded on the basis of the documents which were before him and no evidence was led. However, the petitioner was represented at the hearing by Mr. Seils who made submissions to the adjudicator. In particular, Mr. Seils submitted that the record of interview did not highlight any discrepancies. In paragraph 8 of his written determination the adjudicator observed that the onus was on the petitioner to show at the date of decision that he was entitled to asylum and that the adjudicator had to assess whether subjectively the petitioner had a fear of being returned to his country of origin and objectively whether there was a reasonable likelihood of persecution if he was returned (Sivakumaran v. Secretary of State for the Home Department [1988] Imm AR 147). The adjudicator also stated that he had to consider whether the petitioner had a well-founded fear of persecution at the date of the hearing. On these matters counsel for the petitioner accepted that the adjudicator had adopted the correct approach.
In paragraph 9 of the determination letter the adjudicator dealt with the documentary evidence and the submissions which had been made to him. That paragraph is in the following terms:
"In the absence of oral evidence, I determined this appeal upon all the documentary evidence before me and the submissions made to me by both representatives. Looking at the matter historically, the appellant's first interview was mid afternoon on 29 May 1995 and lasted one and three quarter hours. I am satisfied on the lower standard of proof applicable that he left India because of the problem he had with the police following the death of the young man. I do not believe he left India because of any political activity. I accept that there have been problems between Sikh militants and the security forces but I do not accept that this had any bearing on his departure. In his first interview he refers to a warrant of arrest and that this relates to the death of the young man. In his second interview he says this warrant is to do with posters. I do not accept that the letter from Ranvir Singh Dhillon dated 21 September 1995 assists the appellant. It refers to him being an active member, contrary to what he himself stated and is vague in a bare reference to a 'TDA' case. I am satisfied that the first interview reflects the true position. I also find his credibility diminished by his failure to apply for asylum until apprehended. I note what Mr Seils says about not drawing any inference from failure to apply, but I have no explanation why he did not apply and in my view a true asylum seeker would not have waited until apprehended before claiming asylum. It is not as if the appellant was a complete stranger to the system. I have also taken into consideration the letters in evidence. I note what Mr Seils says about them. They clearly were not submitted by the Appellant, however, their authenticity is not in issue. I refer in particular to the letters written by his wife and father. Her letter of 5 July 1994 states that she knows it is because of the money that he has stayed away for five years. Other letters are written in very much the same vein. All the letters from both wife and father state that they are fine. A letter of 6 June 1994 says that once his work in Germany finished he could have returned to India. His father's letters are very much in the same style. They implore him to return if he can not get work in UK. He has been remitting money to India and a plot of land has been bought. There is no suggestion of any danger whatsoever (other than from excessive drinking). I do not believe that his wife and father would have written in the manner in which they did if there had been any suggestion of danger. Nor indeed is there any suggestion of any danger to the community in general. I do not believe that his brothers and father have been ill treated as he claims. I reject the undated letter from his mother. It is entirely out of context with other letters and in my view is for the benefit of the appeal. He has now been away from India for six years. If he faces any danger, then it is from prosecution and not persecution. I do not believe that the authorities would have any interest in him otherwise. I do not accept that he had a well founded belief in persecution (religion) when he left India."
The adjudicator's decision was set out in paragraph 11 which is in the following terms:
"It is for the appellant to show on the Sivakumaran standard that there is a reasonable chance that if returned to India he will be persecuted for a Convention reason. He may well have a fear of returning to India but that fear is due to prosecution and not persecution as I have stated. He has not discharged the onus of proof upon him."
The adjudicator upheld the decision of the respondent and dismissed the petitioner's appeal. The petitioner then applied to the Immigration Appeal Tribunal for leave to appeal against the adjudicator's determination on the following grounds:
"The Special Adjudicator has misdirected himself in law. He has failed to properly apply the test laid down in Sivakumaran. He has acted unreasonably in coming to the conclusion he has reached."
The Tribunal, in its determination of 7 November 1995, stated that it had considered the grounds submitted in support of the application, the documentary evidence, the record of proceedings and the adjudicator's determination. It stated that the adjudicator appeared to have considered all the evidence before him and had come to clear findings of fact after giving to each element in the evidence the weight he considered appropriate. The Tribunal considered that the conclusions of the adjudicator were fully supported by the evidence and that there was no misdirection in law and refused leave to appeal.
The present petition for judicial review is based primarily on the adjudicator's approach to the arrest warrant which was found in the possession of the petitioner.
Counsel for the petitioner set out the statutory framework and accepted that the onus was on the petitioner to show that he was entitled to asylum but the test was lower than on a balance of probabilities. Counsel had no criticism to make of the way in which the adjudicator had dealt with this matter in paragraph 8 of his determination. The adjudicator had referred to the records of the petitioner's two interviews. At the second interview the petitioner had made it clear that the arrest warrant had related to his activities in putting up posters advocating independence for Khalistan. However, in the course of the first interview, at which he was not represented, there had been an apparent discrepancy in that the petitioner had referred to an incident which had resulted in the death of a drinking companion, agreed that he wished to claim asylum in Britain on the basis of the criminal case and, in answer to a question whether the arrest warrant related to his case, replied in the affirmative. The form of the question "Are you saying you now wish to claim asylum in Britain on the basis of the criminal case?" clearly could have given rise to a misunderstanding on the part of the petitioner. When he replied in the affirmative he could have been answering only the first part of the question and stating that he wished to claim asylum. Alternatively, there was scope for misunderstanding due to difficulties of interpretation (Saftar v. Secretary of State for the Home Department [1992] Imm. A.R. 1). Although there was an apparent contradiction in the answers given by the petitioner as to the alleged offence to which the arrest warrant related, the adjudicator had not analysed or explored that contradiction in any detail or sought to ascertain if there was an explanation for it. Some of the other questions put to the petitioner on 29 May had elicited odd answers. In an asylum case it was not appropriate for an adjudicator to rely on an apparent contradiction in the applicant's statements without analysing it because the scope for injustice was self-evident. Counsel submitted that it was clear from the determination that the adjudicator had held (in paragraph 9) that the arrest warrant related to the death of the petitioner's drinking companion. However, the Lord Ordinary had not accepted that that was the case as he had stated that the adjudicator was entitled to take a view as to the petitioner's credibility "without resolving the absolute character of the warrant". If the Lord Ordinary was correct in saying that the adjudicator had not determined that the arrest warrant related to the death of the drinking companion, then the adjudicator had failed to make a finding on a very material factual issue. The question was whether there was a reasonable likelihood that the petitioner would be persecuted. The warrant for the arrest of the petitioner had been found in his possession but the adjudicator had clearly not even read it. Counsel referred to R. v. Immigration Appeal Tribunal ex parte Victoria Ofiana Hansford [1992] Imm. A.R. 407, R. v. Secretary of State for the Home Department ex parte Thadeus Babatunde Ogunshakin [1997] Imm. A.R. 159 and Singh v. Secretary of State for the Home Department 1998 S.L.T. 1370. The arrest warrant was a crucial document in the case as it provided potential corroboration of the petitioner's statement that it related to a political offence, namely, the putting up of posters. The adjudicator had clearly erred in holding that the arrest warrant related to the death of the drinking companion. Adjudicators are experts in their field and are provided with a great deal of background information in relation to countries from which refugees might be expected to arrive (Abdi v. Secretary of State for the Home Department [1996] 1 All ER 641 per Lord Slynn of Hadley at page 650 and Lord Lloyd of Berwick at page 657). The warrant referred to sections 212 and 216 of the Indian Penal Code and sections 2, 3, 4 and 5 of the Terrorist and Disruptive Activities (Prevention) Act 1987 and the adjudicator would be expected to apply his specialist knowledge to the petitioner's application.
Counsel accepted that the court could proceed on the basis that Mr. Seils, who represented the petitioner at the hearing before the adjudicator, had not expressly referred to the arrest warrant or its terms nor had he made any submissions, or led any evidence, about it. In particular, Mr. Seils had not made any reference to the provisions of the Indian Penal Code and the 1987 Act set out in the warrant. However, counsel submitted that the adjudicator had nevertheless been obliged to consider the terms of the warrant and either decide what it meant or conclude that he was unable so to decide. If he had not been able to decide what it meant, that would have focused the issue before the Immigration Appeal Tribunal. Counsel accepted that when the petitioner applied for leave to appeal to the Tribunal, no reference was made to the arrest warrant, nor was that matter raised when the petitioner, having been refused leave to appeal, presented his first petition for judicial review. The issue of the arrest warrant was only raised when the present petition for judicial review was presented, the day before the petitioner was to be put on a flight to India. Counsel frankly accepted that this delay in putting forward the contentions relating to the warrant was a major problem for the petitioner. However, there was no suggestion that the arrest warrant was not genuine and if the adjudicator had read it he would have realised that section 4 of the 1987 Act, which related to what were termed "disruptive activities", could have formed the basis for a charge of putting up posters advocating independence for Khalistan as that could have been potentially disruptive in terms of section 4(1) and (2). Counsel accepted that the other sections of the Act and the Penal Code referred to in the warrant could not relate to the putting up of posters. However, none of the sections referred to in the warrant could have related to the death of the petitioner's drinking companion. Further, the Secretary of State's letter of June 1995 refusing the petitioner's application had referred to the existence of a state of public disorder in the Punjab created by the activities of Sikh terrorists and if the authorities had decided to persecute a person known to have carried out disruptive activities in contravention of section 4, that might motivate the authorities to seek an arrest warrant on the basis of charges that went beyond those activities. In any event, the connection between the putting up of posters by the petitioner and the reference to section 4 of the 1987 Act tended to corroborate the petitioner's claim that the warrant related to political offences, and not to the death of the drinking companion, and the adjudicator, with his immigration experience, should have so interpreted the warrant. Instead of doing that, the adjudicator had failed to consider the terms of the warrant and had used extraneous material, namely, the replies given by the petitioner at the first interview, to draw an apparently erroneous conclusion as to the meaning of the warrant. In the circumstances the adjudicator had not been entitled to conclude that the arrest warrant related to the death of the petitioner's drinking companion.
As the arrest warrant had not been read or considered by the adjudicator, and was a crucial piece of evidence relating to the key issue of whether the petitioner was likely to be persecuted, the adjudicator's determination was thereby invalidated. Counsel accepted that there was no satisfactory explanation for the issue of the adjudicator's alleged failure to deal properly with the warrant only being raised when the petitioner was on the point of being removed from the United Kingdom. However, he submitted that the court should nevertheless now have regard to that issue and in this connection he referred to Robinson v. Secretary of State for the Home Department and Immigration Appeal Tribunal [1997]) Imm. A.R. 568, R. v. Immigration Appeal Tribunal ex parte Mustafa Arslan [1997] Imm. A.R. 63 and Taore v. Secretary of State for the Home Department [1998] Imm. A.R. 450. The court should have regard to the fact that the offences referred in the warrant may have been political offences. The adjudicator's failure to consider a material piece of evidence in an asylum case was an obvious error and the submissions now being made in relation to the warrant are not only arguable but have a strong prospect of success. When leave to appeal was sought from the Immigration Appeal Tribunal, the Tribunal should have read the warrant and noted that the adjudicator had not given it proper consideration. In the circumstances the court should allow the reclaiming motion, reduce the determination of the adjudicator and the decision of the Immigration Appeal Tribunal to refuse leave to appeal, and remit the case back to be heard by a different adjudicator.
Counsel for the respondent began by reminding us that the Lord Ordinary had been exercising the court's supervisory jurisdiction in relation to the decision of an administrative tribunal. The petitioner's case appeared to be based on Wednesbury unreasonableness in regard to the way in which the adjudicator had treated the evidence. The adjudicator's first step had been to evaluate the evidence and determine the true factual position and in this connection he had to decide if the account given by the petitioner was credible. If he was not accepted as credible, and the adjudicator was not satisfied that he had a well-founded fear of persecution, then that would be the end of the case. There was no doubt that it was for the petitioner to establish that he had a well-founded fear of persecution. He had to show that there was a reasonable likelihood that he would be persecuted for a Convention reason if he was returned to India (Sivakumaran v. Secretary of State for the Home Department, supra, per Lord Keith at page 152). In order to assess the petitioner's credibility the adjudicator had to consider the evidence as a whole. The petitioner was legally represented at the hearing before the adjudicator but he elected not to lead any evidence and to rely on the documents before the adjudicator and oral submissions. The submissions made by Mr. Seils did not make any reference to the arrest warrant, the allegedly unsatisfactory nature of the record of the two interviews or any difficulties arising from interpretation. Further, these issues were not raised before the Immigration Appeal Tribunal or in the first petition for judicial review. Before the adjudicator Mr. Seils' position was that the record of the interviews had not highlighted any discrepancies. In the judicial review process the court had to determine whether or not the decision-making process had been carried out properly. There was no suggestion in this case of any procedural impropriety. In the present process the petitioner had sought to introduce what was in effect new evidence (including references to the Indian Penal Code and the 1987 Act) which had not been part of the decision-making process and it was not legitimate for him to do so. The adjudicator had been invited to reach his determination on the basis of the documents before him and the submissions which had been made to him. If the petitioner had wanted the arrest warrant to be examined in more detail, the adjudicator could have been invited to do so in the course of the hearing. As Mr. Seils had not suggested that the adjudicator should put weight on the terms of the warrant, and did not even refer to it in the course of his submissions, it cannot be said that the adjudicator's approach to the warrant was unreasonable. The argument now sought to be advanced, based on the warrant, was simply an after-thought.
Counsel went on to submit that Grounds of Appeal 1(a), (c) and (d) fell to be looked at together, but they revealed a misunderstanding of the functions of the adjudicator and the jurisdiction of the Lord Ordinary. At the outset the adjudicator had to reach a view as to the credibility of the petitioner. It was suggested that no adjudicator acting reasonably could have interpreted the petitioner's third last answer at the first interview as relating to the death of a drinking companion. Counsel submitted that the adjudicator had clearly been entitled to reach the conclusion which he did. The suggestions that the petitioner had misunderstood the questions or had had difficulties with interpretation had never been raised with the adjudicator. In the circumstances the adjudicator had been entitled to hold that there had been a material contradiction between the two accounts given by the petitioner, to found on that contradiction and to hold that the arrest warrant had related to the death of the drinking companion, that being one of the accounts given by the petitioner.
Counsel referred to paragraph 9 of the adjudicator's determination letter in which the adjudicator had considered whether the petitioner was credible and submitted that on the basis of the information available to the adjudicator he had been entitled to hold that the petitioner was not credible. In particular, the petitioner had not applied for asylum until he had been apprehended and the letters from his wife and father imploring him to return to India had been written after the arrest warrant had been issued. So far as Ground of Appeal 1(b) was concerned, the case of Saftar was not in point in the present case and each case depends on its own particular circumstances. The adjudicator had given adequate reasons for holding that the petitioner had not had a well-founded fear of persecution for a Convention reason.
Counsel further submitted, under reference to Robinson v. Secretary of State for the Home Department and Immigration Appeal Tribunal, supra, that whether a point was arguable was not the proper test to be applied. It must be readily discernible and must have strong prospects of success. There was no duty on an adjudicator to try to find abstruse points which might conceivably favour the applicant. The Lord Ordinary's approach on this matter had been correct and demonstrated no error of law. While the putting up of posters could have been a contravention of one of the five sections referred to in the arrest warrant, the other four sections clearly could not relate to the putting up of posters. The Lord Ordinary had been right to hold that the adjudicator had not been under an obligation to initiate investigations into the background of the warrant when neither of the parties had invited him to do so and it would be wholly wrong for a judge at the stage of judicial review to attempt to reach factual conclusions on material which was never placed before the adjudicator or the Immigration Appeal Tribunal. On the basis of the authorities which had been referred to, counsel submitted that the adjudicator and the Tribunal (1) had to have regard to the evidence which was before them and the submissions which were made; (2) in dealing with the evidence, had to have regard to the evidence as a whole, but were under no duty to refer to each adminicle of evidence and (3) were not under a duty to search for new points which had not been raised but could conceivably favour the applicant. However, if there was an obvious point of Convention jurisprudence which had strong prospects of success, and was in favour of the applicant, then it should be taken into account and given due weight. That was not the position in this case and the adjudicator and the Tribunal had performed all the duties properly incumbent on them and the point which the appellant now sought to raise in relation to the arrest warrant had not been an obvious point nor did it have strong prospects of success. In the circumstances the reclaiming motion should be refused.
We have considered all the submissions which were made to us. In this petition for judicial review the petitioner seeks inter alia (1) declarator that in refusing the petitioner's appeal the adjudicator reached an unreasonable decision et separatim erred in law; (2) declarator that in refusing leave to appeal the Immigration Appeal Tribunal reached an unreasonable decision et separatim erred in law and (3) reduction of the decisions of the adjudicator and the Immigration Appeal Tribunal. While counsel for the petitioners did not go into any further detail in relation to the legal basis of his attack on the two decisions there was no suggestion that there had been any illegality or procedural impropriety and it was clear that the attack alleged Wednesbury unreasonableness.
The petitioner avers that one of the documents produced by the petitioner in support of his case for asylum was the arrest warrant. The warrant refers to "U/Ss. 212, 216, IPC, 3, 4, 5 TD(A) Act". The petitioner avers that this "may mean" that it was brought under sections 212 and 216 of the Indian Penal Code and under sections 3 to 5 of the Terrorist and Disruptive Activities (Prevention) Act 1987. Reference is made to the type of offence to which each section relates and it is averred that the adjudicator failed to consider what the warrant might mean.
The attack on the validity of the Tribunal's decision rested on the proposition that there were errors in the determination of the special adjudicator which the Tribunal should have identified and which justified granting leave to appeal. It is therefore necessary to consider the criticisms which were made of the special adjudicator's determination. The petitioner's case is a narrow one and rests on the approach which the adjudicator adopted in relation to the arrest warrant. In short, the petitioner contends (1) that the adjudicator was not entitled to find that the petitioner had made contrary statements in relation to the circumstances which led to the warrant being granted and (2) that, once the adjudicator found that there was a contradiction, he was under a duty to investigate and analyse that contradiction with a view to seeking an explanation for it. In particular, he was obliged to try to ascertain what the warrant actually meant and he had not done so.
The adjudicator, in paragraph 8 of his determination, observed (a) that the onus was on the petitioner to show at the date of decision that he was entitled to asylum and (b) that he had to assess whether subjectively the petitioner had a fear of being returned to his country of origin and objectively whether there was a reasonable likelihood of persecution if he was returned. Further, the fear of persecution had to be well-founded in the sense that there had to be demonstrated a reasonable likelihood that he would be persecuted for a Convention reason if returned to India. Counsel for the petitioner stated that he had no criticism to make of the approach to the application which the adjudicator set out in paragraph 8. Turning to the factual basis of the application, there was no dispute that the relevant facts of the case would have to be furnished in the first place by the petitioner himself and it would then be for the adjudicator to assess the validity of any evidence and the credibility of the petitioner's statements (paragraph 195 of the Handbook on Procedures and Criteria for Determining Refugee Status under the 1951 Convention and the 1967 Protocol relating to the Status of Refugees). The petitioner was content that the appeal to the adjudicator should be decided on the basis of the available documentary evidence and submissions and he elected not to give evidence or lead any evidence. The adjudicator therefore examined the documentary evidence, including the statements which the petitioner had made in the course of the two interviews, in order to reach a view as to his credibility and, once again, the validity of that general approach was not challenged. The adjudicator considered a number of matters which in his view had a bearing on the petitioner's credibility. He observed that in his first interview the petitioner had stated that the arrest warrant referred to the death of the young man and that in the second interview he had said that the warrant had to do with putting up posters. Accordingly, the petitioner had given two separate and contradictory accounts of the circumstances which had led to the issue of the arrest warrant. We have given careful consideration to the records of the two interviews and the circumstances in which the interviews took place. On the occasion of the first interview the petitioner was not represented and at both interviews the services of an interpreter were required. It was suggested by counsel for the petitioner that any contradiction between his statements may have been due to some misunderstanding on the petitioner's part in answering the questions put to him or difficulties with translation. However, the petitioner stated at the time of the first interview that he had understood all the questions asked by the interpreter in Punjabi and at the second interview he stated that he understood the interpreter. He did not give evidence about any alleged misunderstandings. In our view, these suggestions by counsel were speculation and had no foundation in the evidence. In the circumstances of this case we are satisfied that the adjudicator was justified in taking the view that the petitioner had given two different accounts of the circumstances in which the arrest warrant came to be granted.
The question which then arises is whether the adjudicator was under a duty, as the petitioner alleges, to investigate the contradiction between the two statements and, in particular, to seek clarification of the terms of the arrest warrant. In that connection it is, in our view, significant that the petitioner was represented at the hearing by a solicitor, Mr. Seils, and that Mr. Seils in the course of his submissions to the adjudicator made no reference to the arrest warrant or its terms and, in particular, did not seek to draw the adjudicator's attention to the statutory provisions apparently referred to in the warrant. If a reference to these provisions would have assisted the petitioner's case it might be assumed that Mr. Seils would have drawn them to the attention of the adjudicator. We are unable to see how it could have been apparent to the adjudicator that, if he investigated these issues, he would have been likely to elicit information which was to the benefit of the petitioner. Indeed, as far as the adjudicator was aware, it could well have been that the consequences of such an investigation would have proved to have been even more adverse to the petitioner's interests in that it might have been established that both accounts were untrue. We accept, as was observed in Robinson, that if there was readily discernible an obvious point of Convention law which favoured the petitioner, although he had not taken it, then the adjudicator should have applied it in his favour, but in the circumstances of this case we are not satisfied that it was necessary or appropriate for the adjudicator to seek to investigate the terms of a warrant which had not even been referred to in the submissions. In our opinion the point now being urged by counsel for the petitioner was not an obvious one and, in any event, there was no way that the adjudicator could have ascertained that it was a point which had a strong prospect of success so far as the petitioner was concerned or, indeed, a point which would be likely to favour the petitioner at all. We are therefore of the opinion that the special adjudicator did not act unreasonably in not investigating the reason for the contradictory statements made by the petitioner and the terms of the warrant.
It is also to be noted that the fact that the petitioner had given two different accounts as to the circumstances in which the arrest warrant had been issued was not the only matter which the adjudicator took into account in deciding whether or not the petitioner was credible. In particular, he referred, as he was entitled to do, to the fact that the petitioner failed to apply for asylum until he had been apprehended, no explanation having been tendered for the delay (cf. para. 341(i) of the Immigration Rules). He also took into account the letters which were written to the petitioner by his wife and father after the warrant had been issued in which they implored him to return to India if he could not get work in the United Kingdom and noted that there was no suggestion of any danger to him or to the community in general. In our opinion, on the evidence before him, the special adjudicator was entitled to conclude that the petitioner was not credible and to refuse to accept that he had a well-founded fear of persecution for a Convention reason if he was returned to India. It follows that the attack on the determination of the special adjudicator must fail.
In these circumstances the petitioner's application for judicial review of the decision of the Immigration Appeal Tribunal to refuse leave to appeal must also fail. The contention which the petitioner now seeks to advance was not referred to in the Grounds of Appeal submitted to the Tribunal and, as we have said, was not drawn to the attention of the adjudicator. Even if the point could be regarded as arguable, it was not an obvious point which had a strong prospect of success (Robinson, supra, per Brooke, L.J. at page 581) and we are satisfied that no valid criticism can be directed at the Tribunal for failing to take it into account and refusing leave to appeal.
On the whole matter we have reached the conclusion that the Lord Ordinary was right to dismiss the petition and we shall therefore refuse the reclaiming motion.