Scottish Court of Session Decisions

[1] The Immigration Act 1971 (c. 77) provides:

[2] Paragraphs 8 to 11 of Schedule 2 of the Act empower immigration officers to give directions for the summary removal of illegal entrants, including those who have obtained legal entry by deception.

[3] The Convention Relating to the Status of Refugees executed at Geneva in 1951 (Cmd. 9171) as amended by the Protocol made at New York in 1967 (Cmd. 3906) provides :

For an applicant to come within the article, he must first show that he has a fear of persecution. This is a subjective matter. Secondly, he must show that the fear is well founded. That is an objective matter. A well founded fear is proved where there is demonstrated:

[4] Other phrases such as "a reasonable chance", "substantial grounds for thinking" or "a serious possibility" of persecution might also do (Lord Keith at 959 quoting Lord Diplock in R. v Governor of Pentonville Prison ex parte Fernandez [1971] 1 WLR 987 at 994.) The test has been said to involve a reduction of the normal standard of proof but I am not sure that that is the correct analysis since the various phrases seem only to be descriptive of what is to be proved and not the standard of that proof.

Persecution has also been taken to mean:

[5] This definition was approved by Lord Hope of Craighead in Horvath v Secretary of State for the Home Department, unreported, House of Lords, 6^th July 2000, where he continued:

[6] Lord Hope also quoted an earlier definition of persecution in Professor Hathaway's book (p. 104-105) as follows:

[7] The essential point is that ill treatment, even at the hands of a state authority such as the police, is not necessarily to be equated with persecution. Isolated acts of ill treatment by members of a state authority agency may inevitably occur in the most liberal of regimes from time to time but fear of such ill treatment is not enough unless the acts are so sustained or systematic as to indicate that the state is failing generally to protect its citizenry or a section of it.

[8] In terms of the Secretary of State's Statement of Changes in Immigration Rules (HC 251) laid before Parliament on 23^rd March 1990:

[9] The Asylum and Immigration Appeals Act 1993 (c.23) provides:

[10] The Asylum Appeals (Procedure) Rules 1996 (SI 1996 No. 2070) provide in relation to the determination of appeals from the Secretary of State to a Special Adjudicator and from him to an Immigration Appeal Tribunal that :

[11] Rule 13 contains the provision which requires leave of the Tribunal to appeal to it. It is incumbent upon the Tribunal to provide reasons for any refusal of leave.

In the context of judicial review, it has been said that :

[12] This has been said not to be judicial rhetoric but an established doctrine (Michael Fordham : "What is 'Anxious Scrutiny' ?" [1996] JR 81). Whether that is so or not, and it would be somewhat worrying to suppose that the merits of some cases deserve anything less than anxious scrutiny, it hardly needs saying that the judicial review of decisions, which may involve the return of a person to a state where he alleges his life or liberty may be in danger must, obviously involve considerable care.

[13] The petitioner is an Indian national and a Sikh formerly resident in the Punjab. He has no right of abode in the United Kingdom. He had served in the Indian army from 1953 until 1981 and had, after his retirement, been, at least in part, a farmer in the village of Manawali. He entered the United Kingdom on 16^th April 1991 on an ex facie valid grant of leave to enter and stay as a visitor for a maximum period of six months. The grant was issued at Delhi on 16^th April 1991 when the stated purpose of the visit was to attend his father's funeral in Wolverhampton on 17^th April 1991. He entered the country using a legitimate Indian passport in his own name. He made a claim of asylum on 24^th May 1991. In accordance with normal procedure, he completed a "self completing questionnaire" (SCQ) (Pro. 15/1) in August 1991.

[14] The SCQ was not written by the petitioner but completed on his behalf in English by someone who seems to have been in the offices of his then solicitors at the time. It gave an account of three incidents in which the petitioner claimed to have been involved as follows:

[15] Nothing seems to have happened with his application until March 1995 when he attended for interview at the Immigration Office in Glasgow. He responded to a "Political Asylum Questionnaire" (PAQ) (Pro. 15/2) in which he adhered to the basic narrative of the SCQ. The PAQ revealed some further details. The petitioner had obtained a legitimate passport and had no difficulty exiting India at Delhi airport. He left on an Aeroflot plane, stopping twice on the way to Heathrow. The first was a short refuelling stop for about two hours during which he did not leave the plane. The second was for about six or seven hours, perhaps in Bangkok, where he changed planes and was, along with the other passengers, taken by bus to restaurant and other facilities five miles away from the airport. He did not apply for asylum immediately upon landing at Heathrow because, he said, he thought this might be refused and he would not have been allowed to go on to the funeral.

[16] The PAQ also stated the petitioner was not, and never had been, a member of the Akali Dal Badal political party nor did he do anything for the party apart from attempting to go to the conference. He had not been involved in the fighting at the Golden Temple but had been accused of going to the Temple with a view to starting a fight. He said he had been beaten by having five or six people jump up and down on him. He still had marks on his body as a result. The harassment in his village had consisted of the police coming to his house every ten days to find out where he had been and to demand money from him. During the College incident, he had remained inside what was his spare parts shop. He had been arrested in the shop and accused of knowing who had been involved in the shooting incident at the College.

[17] Since his arrival in the United Kingdom, the petitioner had been living with one of his sons in Renfrew. He had been joined by his wife who had entered the country apparently on a visa obtained by deception. He was working in Murphy's Pakora Bar.

[18] In terms of a letter to the petitioner dated 11^th October 1996 from the Home Office Immigration and Nationality Department (Pro. 15/4), the application for asylum was refused by the Secretary of State. The letter stated:

[19] The petitioner appealed from the Secretary of State's decision and a hearing was held at Glasgow on 17^th January 1997 before a Special Adjudicator. At this hearing there was oral evidence from the petitioner's son but nothing further from the appellant who was represented by a new solicitor. The Home Office representative made a submission that:

[20] The petitioner's solicitor made certain submissions. The record of just what these were is very short but they included objections to the use of copy government reports and a general proposition that the Indian Government was "responsible" for the actings of the police. The Special Adjudicator noted that all that required to be established for asylum to be granted was that there was a reasonable likelihood of persecution for a Convention reason. Nevertheless, he concluded:

He dismissed the appeal.

[21] The petitioner requested leave to appeal to an Immigration Appeal Tribunal on sundry grounds including : the failure to sustain the objection to the reports; the weight placed on certain matters by the Special Adjudicator; his assumptions about the petitioner's desires; and his rejection of the family letters. It is fair to say that none of these grounds were repeated in the current process. They were all rejected by the Tribunal on 4^th March 1997 (Pro. 15/6) on the basis that:

Leave to appeal was refused.

1. Petitioner

[22] When the matter came before me at a First Hearing on the judicial review petition and answers, counsel for the petitioner emphasised the terms of rule 2(3) of the Asylum Appeal (Procedure) Rules to the effect that "(b) every determination shall consist of a concise statement of: (i) the decision on the substantial issues raised; (ii) any findings of fact material to the decision; and (iii) the reasons for the decision". He maintained that his complaint was in large measure that the Special Adjudicator had failed to give adequate reasons for, and to make appropriate findings in fact relative to, his decision. He referred to the well known dicta of the Lord President (Emslie) in Wordie Property Co. Ltd. v Secretary of State for Scotland 1984 SLT 345 at 348 and the Lord Justice Clerk (Ross) in Safeway Stores plc v National Appeal Panel 1996 SC 37 at 41. Counsel also cited two recent immigration cases on the point namely Daljit Singh v Secretary of State for the Home Department 2000 SLT 243 approving Lord Penrose's dictum in Mohammed Asif v Secretary of State for the Home Department 1999 SLT 890.

[23] Initially, the petitioner maintained that in order to reach a proper decision, the Special Adjudicator was bound to make findings in fact relative to the past incidents in the temple, going to the conference and in the vicinity of the college. This was because these were bound to be material considerations in reaching a decision on the likelihood of future persecution. This submission was modified in the course of argument to the effect that the Special Adjudicator was at least bound to say what he made of the evidence about the past incidents, i.e. he was not bound to make findings in fact but was bound to explain his treatment of the material.

[24] The existence of past persecution was very important in the determination of future risk. Professor Hathaway had termed it an "excellent indicator" (The Law of Refugee Status at pp. 88) and it could be 'probative' of a future risk (see Lord Clyde in Horvath; Demirkaya v Secretary of State for the Home Department [1999] INLR 441, Stuart-Smith LJ at 447-8; see also Jackson : Immigration Law and Practice 1^st ed. para 10-195; 2^nd ed. para 11-218 where the respective editions' footnotes 14 and 36 involve the replacement of R. v Secretary of State ex parte Yasim Parmak, Hutchison J. sitting in the Queen's Bench Division, unreported, 23^rd January 1992 with the admittedly higher court decision in Demirkaya). If past episodes of persecution existed then there was almost a presumption that they might be repeated unless the Special Adjudicator could find also some change of circumstances. In short, the Special Adjudicator's failure to state what he made of the evidence of past persecution amounted to a failure to state adequate reasons.

[25] Since the Special Adjudicator had erred, and the Tribunal had compounded this error by failing to find it when refusing leave, I ought to sustain the first and second pleas-in-law for the petitioner, reduce these decisions and remit the matter to another Special Adjudicator for a hearing de novo.

2. The Respondent

[26] Counsel for the respondent accepted that if the Special Adjudicator's decision fell to be reduced then that of the Tribunal refusing leave should also be reduced. Nevertheless, he suggested that the better course would be to remit the matter to the Tribunal for a hearing de novo given that the Tribunal would consider all matters afresh in any event (Major Singh 2000 SCLR 610, Lord Nimmo Smith at 617 A-C). However, he submitted that the petition was not well founded. The Petitioner's submission, even in its modified form, to the effect that the Special Adjudicator was bound to explain what he made of the evidence of the past incidents, was framed too highly. One way of testing it was to consider whether the Special Adjudicator could have reached an overall decision without deciding whether or not the past incidents had occurred. The answer was that he could have done so. The rules did not require a finding in fact for every determination but only where the finding was material to the decision. There was no need for a finding in fact to be made in order to reach the decision of the Special Adjudicator. Another way of testing the proposition was to consider the situation where the evidence was so unsatisfactory that a Special Adjudicator felt unable to make any findings. That again might happen and it could not be said that his decision would be tainted because of such a state of affairs. In short, there was no absolute obligation to make findings in fact.

[27] It was important to distinguish past persecution from past ill treatment. The two were not the same. The Secretary of State here had accepted that ill treatment had occurred on occasions in the Punjab but he did not accept that this amounted to persecution. His decision letter made that clear. This did not seem to have been challenged before the Special Adjudicator. Equally, the central point in the judicial review was not one raised before him.

[28] At the hearing, the Home Office representative had put the case quite simply on the basis that the petitioner's asylum "story" was not credible, i.e. that his claim to be a genuine refugee did not "hold water" for the reasons he gave. He was treating the past incidents as pro veritate but going on to say that nevertheless the claim to asylum was bogus because there was no subjective fear of persecution at all. The Special Adjudicator had accepted that approach on the basis that the appellant may have been involved in the past incidents. He was entitled to do so and was not obliged to make any positive findings in relation to the past incidents.

 

 

 

4. DECISION

(a) General

[29] In Daljit Singh, Lord Weir, in delivering the opinion of the Court, made it clear (at 245 K-L) that:

"The proper and well established test for assessing the adequacy and sufficiency of reasons given by an administrative tribunal is summarised by Lord President Emslie in Wordie Property Co. Ltd......[and] any additional judicial statements are merely a gloss on the basic test."

In Wordie Property Co. Ltd. the Lord President said (p. 348):

".....in order to comply with the statutory duty imposed upon him, the Secretary of State must give proper and adequate reasons for his decision which deal with the substantial questions in issue in an intelligible way. The decision must in short leave the informed reader in no real and substantial doubt as to what the reasons for it were and what were the material considerations which were taken into account when reaching it."

[30] The Lord Justice Clerk in Safeway Stores plc echoed these words in saying (pp. 40-41):

"Where there is an obligation to give reasons, the reasons must deal with the substantial questions in issue in an intelligible way, and must not leave the informed reader or the court in any real doubt as to what the reasons for the decision were, and what were the material considerations which were taken into account in reaching it."

[31] The sentiments of the Lord President and Lord Justice Clerk are reflected in the Asylum Appeals (Procedure) Rules which add little to them other than provide specifically for findings in fact but only where these are deemed material to the decision. As Lord Weir continued in Daljit Singh (p. 246 A-C):

"The basic duty will be satisfied if the reasons given by the decision maker come within the ambit of what was said in Wordie Property Co. Ltd. The extent and adequacy of the reasons which are set out is bound to vary according to circumstances (Safeway Stores plc). Much will depend on the nature of the tribunal and any rules under which it requires to work, the scope of the issues which may be raised, the amount of evidential material involved and whether the decision is an administrative or a judicial one."

[32] In this case I consider that the Special Adjudicator's determination meets the test in Wordie Property Co. Ltd. The informed reader would have no difficulty in understanding : (a) what the decision on the substantial issue was; (b) what the reasons for the decision were; and (c) what material considerations were involved in the reasoning process. The substantial issue was whether, in terms of the Convention, the petitioner had a well founded fear of persecution in the Punjab. The Special Adjudicator dealt with that issue in a clear and intelligible way. He answered the issue in the negative. He did so for two stated reasons. First, he did not accept that the petitioner was a genuine refugee, i.e. that he had any fear of persecution. Secondly, and in any event, he would not have considered any such fear to have been well founded given context of the past incidents and, most important, the current state of affairs in the Punjab.

[33] So far as the first aspect is concerned, he set out, again in a plain and readily understandable fashion, the material considerations justifying his reasoning for not accepting that the petitioner had a fear of persecution. These were first that he did not attempt to leave the Punjab until over three years after the last specific alleged act of persecution. Secondly, his leaving the Punjab coincided with a genuine, and the petitioner's original stated, reason for leaving, namely his father's funeral. Thirdly, it took him over a month to apply for asylum after he had arrived. All of these were factors of varying degrees of weight which the Special Adjudicator was well entitled to take into account in determining that the petitioner did not have any fear of persecution, i.e. that he was not a genuine refugee.

[34] In relation to the second aspect, again the Special Adjudicator took two stated matters into account. First, such evidence as was available did not point to any continuing existence of persecution in the Punjab as a generality and, secondly, the petitioner had not produced any independent evidence to suggest that any fear specific to the petitioner might be well founded. In this regard, there is no reason to suppose that the Special Adjudicator rejected the view of the Secretary of State in holding that the general acts of ill treatment against the Sikhs by the police in the 1980s did not amount to persecution in terms of the Convention. Other than the spurious objection taken to the admissibility of the reports on the ground that they were only copies, there is no indication that the petitioner mounted any challenge to that part of the Secretary of State's decision before the Special Adjudicator and thereby put it in issue. The Special Adjudicator had the material contained in the reports before him and the Secretary of State's general position on India and the Sikhs contained in the original decision letter. These matters do not seem to have been subject to any substantial, as distinct from evidential, challenge by the petitioner at the hearing and no evidence appears to have been adduced to contradict the terms of the Secretary of State's letter in its general aspects. The inescapable conclusion, in the absence of such a challenge, would be that there was no evidence to support the view that the Indian Government, either at national or local level, had been or was now either perpetrating or condoning acts in such a sustained and systematic manner as to indicate that it had been or was now engaging in the persecution of a section of its citizenry.

(b) Past Incidents

[35] Lord Penrose's dictum in Mohammed Asif (at 246 C-E) cautions against an immigration tribunal carrying:

"through a mechanical process of narrative of the evidence, analysis of it into two classes, and explanation factor by factor of the relevance or irrelevance, credibility and reliability or otherwise of it."(cf. Lord MacFadyen in Jaswinder Singh v Secretary of State for the Home Department 1998 SLT 1370).

[36] The present case is an example of one where the Special Adjudicator does not appear to have acted mechanically but reached intelligible conclusions justified by reference to substantial material. No doubt, in many cases positive findings in fact of incidents of past persecution or ill treatment will be very important and in some cases necessary and determinative. However, as Professor Hathaway reminds his readers:

"The issue is not the fact of the past persecution, but rather whether 'that which happened in the past may happen in the future'." (p. 88)

In certain cases then, perhaps especially those where there has been ill treatment some years previously and outwith the context of "persecution" in a Convention sense, historic ill treatment may be of little or no materiality in the assessment of future risk. No doubt, in each case it will be a question of fact and degree.

[37] The Special Adjudicator has not made positive findings in fact that the alleged past incidents of ill treatment actually occurred. I do not think that he was bound to do so in order to reach his decision. He could not, of course, simply ignore the material on the past incidents at least without explaining adequately why he was doing so. However, he has not ignored it but, rather in the petitioner's favour, proceeded on the basis that the incidents might have occurred. Having done that, he has nevertheless found against the petitioner on the critical issue of whether he had or has a well founded fear of persecution. That he proceeded upon this hypothetical or conditional basis, can be seen within the determination where it is evident that it was partly the timing of the incidents relative to the petitioner's departure from India that provided one of the main reasons for the rejection of the petitioner's claim to be a genuine refugee. In order to use that as a reason, the past ill treatment had to be taken as having possibly happened. But the material relative to the incidents did not, for that limited purpose, require to be formulated as an express finding in fact since it was not necessary, when proceeding upon the hypothesis, to find that its content occurred in fact. Such a finding was not material to the decision since that decision could be made purely on the hypothesis. On this aspect of matters, the case is very different from Demirkaya where the Tribunal failed to make any reference to the past ill treatment at all.

[38] The Special Adjudicator proceeded on the basis that the events may have occurred but that that did not effect the final outcome of the case. If the events had not involved the petitioner then he would not have been telling the truth and his application could not, because of its false basis, have succeeded. If he had been involved in the events, then their timing illustrated that they were not likely to have been the reason for the petitioner's departure from India. That, coupled with the other material, negatived, in the mind of the Special Adjudicator, any genuine refugee case. Proceeding in this hypothetical or conditional manner, which enables a sound decision to be taken without having to resolve a particular question of fact, is neither an unusual nor an unreasonable way of resolving the critical issue in a case. It is not one which can ultimately be used as a focus for successfully undermining that resolution. It is perhaps of some note that whether or not a finding in fact had been made, the petitioner's position would have remained unaltered in the circumstances here.

3. Conclusion

[39] For these reasons, I will repel the petitioner's and the respondent's first and second pleas-in-law, sustain the respondent's third plea-in-law and assoilzie the respondent from the craves in the prayer of the petition. Had I decided otherwise, I would have acceded to the petitioner's motion to remit the matter to a different Special Adjudicator rather than straight into the Immigration Appeal Tribunal level.