Scottish Court of Session Decisions

[1] This is an appeal under section 9 of the Asylum and Immigration Act 1993. The appellant appeals against a determination of the Immigration Appeal Tribunal, notified on 19 August 1998, following a hearing on 22 May 1998. The appellant is a Shia Muslim. Prior to January 1992, he lived with his wife and family in Pakistan, of which he is a citizen. On 15 December 1991, he applied in Pakistan for a visitor's visa for the United Kingdom. His application was approved on 23 December 1991. He left Pakistan on 17 January 1992, leaving his wife and family in Pakistan. On arrival in the United Kingdom, he was given leave to enter for six months. On 12 June 1992 a solicitor applied for asylum in the United Kingdom on his behalf. His date of birth was given as 23 November 1953 and his nationality as Pakistani. In due course, he completed and submitted the appropriate questionnaire in support of his application and this was done on 4 November 1992. He explained that he belonged to a Syed Shia Muslim family. He stated that Shias formed their own party Tehrik-e-Nifaz-e-Fihah-e-Jafria to oppose religious laws which Zia's Government tried to impose on Shias. Activities by the TNFJ party provoked the creation of a group of fundamentalists called the Anjuman-e-Sipahe-Sahaba. Thereafter the TNFJ reorganised and the appellant was appointed as finance secretary of the reorganised party. The appellant claimed that he had been harassed by the local police and taken into custody many times by the police and roughed up. He claimed that eventually they released him but they tried to involve him in a false case of Jhang clashes between Shias and the ASS. He then made the claim, of particular importance in the present case, that he had come to know, through a reliable source, that he was on the hit list of the ASS. He claimed that he had no alternative except to get out of Pakistan as soon as possible to save his life and family, who, he was sure, have suffered through his associations and actions. Protracted procedures relating to the appellant's application thereafter followed. These included refusal of his application by the Secretary of State on 13 January 1995, refusal of appeal to Mr. Watt, a special adjudicator, on 1 September 1995, refusal by the Immigration Appeal Tribunal of leave to appeal to it on 15 September 1995, agreed reduction of the last-mentioned decision in the Court of Session on 25 May 1997, remit by the Tribunal in due course on 15 October 1997 for a fresh hearing before another special adjudicator, determination on 13 March 1998 by Mr. Deans, a special adjudicator, refusing the appeal, and determination by the Tribunal in due course on 19 August 1998, the grant of leave to appeal to this court being granted by this court, and now followed by the present appeal to this court.

[2] Mr. Bovey, for the appellant, submitted that it was apparent from the Tribunal's determination of 19 August 1998 that they had erred in law and he submitted that the appeal should be remitted to an Immigration Appeal Tribunal, differently constituted, for rehearing. In terms of section 9(1) of the Asylum and Immigration Appeals Act 1993, appeal to the Court of Session against the determination of an Immigration Appeal Tribunal may be made on any question of law material to the determination of the Appeal Tribunal. Mr. Bovey said that he was advancing four grounds of appeal.

[3] The first of the grounds advanced by Mr. Bovey was that the Tribunal had erred in law in its approach to the exercise of its jurisdiction. It had asked itself whether the adjudicator was entitled to reach the conclusion on the evidence that the appellant was not on an ASS "hit list". Mr. Bovey submitted that the Tribunal had a duty to consider the application of the appellant de novo on the material before it and not to restrict itself to the form of review which this court embarks upon when it is considering an application for judicial review, as it appeared to have done. He referred to the terms of section 20(1) of the Immigration Act 1971. This provides:

Mr. Bovey referred to the case of Hanif v. Secretary of State for the Home Department (1999) S.C. 337. He referred, in particular, to what was said by Lord Osborne, giving the opinion of the court. Lord Osborne referred (at page 341D) to what was said by Woolf J., as he then was, in R. v. Immigration Appeal Tribunal ex parte Zaman (1982) I.A.R. 61 at pages 62 and 63. It was there said that the Tribunal must consider the matter de novo on the material before it and not restrict itself to the form of review which the court embarks upon when it is considering an application for judicial review (at page 344E). However, Mr. Bovey accepted that what was said in the case of Hanif related to the situation where the Tribunal considered that the special adjudicator had made a demonstrable error of fact. He contended that that had occurred in the present case. We note that in the Hanif case, immediately following the passage cited by Mr. Bovey, Lord Osborne said (at page 344I):

We agree that this would be the case. A fortiori, where the special adjudicator has not been shown to have made a mistake in his comprehension of the evidence, it is open to the Tribunal quite properly simply to affirm his determination, if that was otherwise appropriate. We agree with Mr. O'Neill's submission that the Tribunal's job is to make sure that the special adjudicator did his job properly. It is not the norm to disturb findings in fact of the special adjudicator. This will only be done if the appellate authority is satisfied that something was wrong in the way that the special adjudicator had reached his views. There must be some failing, some wrong approach. Mr. O'Neill referred to the case of Anatoli Vladimirovich Borissov (1996) I.A.R. 524. Hirst L.J., giving the only opinion of the Court of Appeal in that case, said (at page 535):

This was said in the context of a case where the applicant had appeared and given evidence before the special adjudicator. In the present case, the applicant chose to give his evidence by affidavit rather than orally before the special adjudicator, Mr. Deans. While a special adjudicator who hears oral evidence from an applicant may enjoy a particular advantage in assessing evidence over an appellate body dealing only with written material, what was said by Hirst L.J. is still correct, even where no such oral evidence has been given. The special expertise of special adjudicators is of relevance on this matter.

[4] We agree with Mr. O'Neil that the Tribunal did not approach their task as if they were a court dealing with an application for judicial review. What they did was to consider whether the special adjudicator had made a mistake in his comprehension of the evidence and, concluding that he had not, affirmed his decision. Accordingly, the first ground of appeal is not well founded.

[5] The second ground of appeal was that the Tribunal had erred in law in not setting aside the determination of the special adjudicator. The adjudicator's conclusion that the appellant's claim to be on an ASS hit list was not credible was demonstrably flawed. In particular, in reaching his conclusion the adjudicator had:-

(1) failed to give adequate and comprehensible reasons for his decision;

(2) misconstrued the evidence before him and by so doing had regard to irrelevant

(3) reached conclusions on the evidence which were perverse and unreasonable;

(4) failed to have regard to relevant evidence placed before him; and

(5) applied the wrong standard of proof to a critical part of the evidence and by so

Furthermore, the Tribunal had failed to give adequate and comprehensible reasons for its decision, particularly in the light of the grounds of appeal and the oral submissions made to it in like terms as the applications for leave to appeal to this court.

[6] Accordingly, this second ground of appeal had two parts, the first relating to the special adjudicator's decision and the second to that of the Tribunal. With regard to the first part, Mr. Bovey referred to the determination and reasons of Mr. Deans, the second special adjudicator to be involved with this application. In the absence of any oral evidence in support of the application, Mr. Deans required to decide the appeal on the written material before him. It was accepted that favourable determination of the appellant's credibility on his claim that he was on an ASS "hit list" and had a genuine fear of persecution at the time he left Pakistan was essential for his appeal to succeed. After lengthy and what we consider to be thorough consideration of this matter in his Determination, he stated:

[7] Mr. Bovey made submissions to us in relation to each of the four matters allegedly demonstrating inconsistencies referred to in the special adjudicator's Determination and submitted that, in the case of each, the special adjudicator's findings on inconsistency were unjustified. We are satisfied that, as Mr. O'Neill for the respondent submitted, it has not been shown that there are any grounds for disturbing the special adjudicator's findings on inconsistencies and his resulting finding that the appellant's claim that he was on an ASS "hit list", and therefore feared persecution, was not shown to be true. The task for the special adjudicator was to determine, on the information available to him, whether the appellant's claim as to fear of persecution and the basis for it was to be believed, in the sense of shown to be probably true, or not. Apart from his submissions in relation to the matters involving alleged inconsistencies, Mr. Bovey made submissions to us to the effect that the special adjudicator had misunderstood his task on that matter and inferentially had imposed on the appellant a standard or proof falling between mere probability and lack of reasonable doubt. However, we agree with Mr. O'Neill's submission that there is no sound basis for the contention that the special adjudicator somehow misdirected himself as to the standard of proof applicable in the discharge, by the appellant, of the onus upon him. More generally, we hold that the attack on the special adjudicator's decision involved in the first part of the second ground of appeal fails.

[8] The second part of the second ground of appeal relates to alleged failure by the Tribunal to give adequate and comprehensible reasons for its decision, particularly in view of grounds of appeal and submissions before it. Having held, as we do, that the first part of the appellant's second ground of appeal is not well-founded, we can deal with the second part quite shortly. Mr. O'Neill did not regard the Tribunal's determination and reasons as providing a model for other cases and we agree with him on that point. However, we consider that it is sufficiently clear from the terms of the Tribunal's determination and reasons that the attack on the special adjudicator's findings and decision failed and, accordingly, the appeal required to be refused. In the circumstances of this case, we consider that the technical requirements of determination and reasons for the Tribunal's decision are met.

[9] The appellant's third and fourth grounds of appeal are academic on the view which we have taken of this case. The third ground of appeal is that the Tribunal erred in law in holding that, esto it was established that the appellant was on an ASS hit list, the ASS were not "agents of persecution", and that accordingly the appellant did not fall within the terms of Article 1 of the 1951 Convention Relating to the Status of Refugees. It is clear to us that the Tribunal did not deal properly with this ground of appeal at all but, as the matter is academic, it suffices to say that this deficiency was accepted by Mr. O'Neill who conceded that, if the respondent was wrong on the first two grounds of appeal, then it would be necessary for there to be a remit to the Tribunal for a proper determination on the third ground of appeal.

[10] The fourth ground of appeal was that the Tribunal erred in law in having regard to what was found by it to be "an improving situation in the Punjab". Mr. Bovey said that such evidence as there was as to the state of affairs at the time that the appellant left Pakistan, far from demonstrating an improving situation showed that, if anything, matters were getting worse and, in particular, violence was increasing. Mr. O'Neill did not seek to persuade us that Mr. Bovey's submission on the state of the evidence was wrong. The special adjudicator made no observation to the effect of that made by the Tribunal on this point. However, we regard the matter as academic for present purposes and, in particular, we do not accept the submission made by Mr. Bovey that the Tribunal's unfounded statement about evidence as to an improving situation in the Punjab undermines the validity of their determination on grounds of appeal 1 and 2. We are satisfied that this is so because of the positioning of the Tribunal's observations about the position in the Punjab at the very end of their determination and reasons, and in terms indicating that what they concluded on that matter was not material to their treatment of grounds of appeal 1 and 2. Similarly, in the case of the Tribunal's treatment of the third ground of appeal, we are satisfied that its deficiencies do not undermine the validity of their determination on grounds 1 and 2.

[11] Accordingly, the appeal is refused.