Scottish Court of Session Decisions

The petitioner was born on 4 November 1968 and is of Indian nationality. He arrived in the United Kingdom clandestinely. On 23 September 1996 he applied for political asylum, following his arrest on an unrelated matter. On 27 September 1996 he was interviewed by an immigration officer, with the assistance of an interpreter. By letter dated 16 October 1996 his application for asylum was refused by the Secretary of State. On the same date the petitioner was served with a notice of removal. The petitioner then appealed against the refusal of asylum to a Special Adjudicator. The appeal was heard on 22 August 1997. The petitioner was represented at the hearing by a solicitor. By a determination dated 2 October 1997 the Special Adjudicator refused the appeal. The petitioner then applied to the Immigration Appeal Tribunal for leave to appeal against the determination of the Special Adjudicator, but leave to appeal was refused in terms of a determination dated 22 October 1997. In the present proceedings the petitioner seeks the reduction of the determinations of the Special Adjudicator and of the Immigration Appeal Tribunal.

In order to qualify for asylum under the Immigration Rules (H.C.251, 1990), the applicant must have the status of a refugee under Article 1A(2) of the Geneva Convention relating to the Status of Refugees (Geneva, 28 July 1951; Cmnd. 9171), as amended by the 1967 Protocol (New York, 31 January 1967; Cmnd. 3906). The first matter to be established under the article is that the claimant is outside the country of his nationality owing to a well-founded fear of persecution.

When the petitioner was interviewed by the immigration officer on 27 September 1996, he was asked a number of questions relating to that matter. The relevant questions and answers are recorded as follows:

It will be observed that the account given by the petitioner focused upon harassment and threats by the Sikh Student Federation Party (SSF), including in particular an occasion when they had allegedly planted evidence and bribed police officers so as to have the petitioner charged with an offence which he had not committed.

The Secretary of State's letter refusing the application for asylum stated inter alia:

At the hearing before the Special Adjudicator, the petitioner's representative relied upon the contents of the interview and also upon a written statement by the petitioner dated 22 August 1997. The statement was in inter alia the following terms:

It will be observed that this statement alleges for the first time that the police have harassed the petitioner by repeatedly arresting him and beating him up, and suggests that he could be in danger from the authorities as well as from the SSF. This aspect of the case was emphasised by the petitioner's representative in her submission to the Special Adjudicator:

The Special Adjudicator did not accept the petitioner's account as credible, so far as relating to harassment by the police. He stated:

At the hearing before me, this passage was treated as being of critical importance. It was conceded by counsel for the Home Secretary that, if the Special Adjudicator's rejection of the petitioner's credibility was successfully challenged, then his determination could not be supported: although the Special Adjudicator had stated that he would not in any event have granted the appeal, his reasoning in that regard was conceded to be flawed. At the same time, it was conceded by counsel for the petitioner that, if the Special Adjudicator's rejection of the petitioner's credibility was not successfully challenged, then the petition must be refused: standing the rejection of the petitioner's credibility, his appeal was bound to be dismissed since the Special Adjudicator could not be satisfied that the petitioner had a genuine fear of persecution; equally, there would be no basis for criticising the Immigration Appeal Tribunal's refusal of leave to appeal.

Counsel for the petitioner submitted first that the Special Adjudicator's rejection of the petitioner's credibility was unreasonable. At no stage during the course of his interview did the petitioner say that there was only one occasion when he was detained by the police in India. He was not asked if he had been arrested or detained on any other occasion. He was asked if there had been any other occasion when he was "jailed". He said that there was not. He had not altered this position. There was no inconsistency between what he had said at interview and the contents of the subsequent statement. Moreover, he had provided in the statement itself an explanation of his failure to provide a full account during the interview:

I reject this contention. In the first place, I reject the premise that it is only an inconsistency between accounts given by an individual at different times which can reflect adversely on his credibility: a difference between accounts can be important even in the absence of any contradiction, as for example when a person fails to mention initially (but mentions on a subsequent occasion) something which could reasonably have been expected to be mentioned on the first occasion if it were true, or where someone subsequently claims to have forgotten an incident of which he gave a detailed account at an earlier time. That much is familiar in the daily practice of the Scottish courts, and for that matter in ordinary experience outside the courts. Authority is scarcely necessary for such an obvious proposition, but it can be found illustrated in H.M. Advocate v Hislop, 1994 S.L.T. 333. In the present case, the petitioner was asked, "What problems did you have?", and did not mention in his reply any problem of police harassment. He was also asked, "Have you experienced any form of problem or harassment in India from anyone other than Sikh Student Federation members?", and answered "No.". After mentioning his fear that the SSF would kill him if he returned to India, he was asked, "Anything else you fear in India?", and answered "No." It is true that there is mention in an earlier answer of "police problems" starting in 1989 or 1990, but even so the failure to mention repeated unjustified arrests and beatings, and a fear of further police harassment, in response to the questions I have quoted, could reasonably be regarded as undermining the credibility of the petitioner's subsequent complaint of such harassment. The fact that that complaint emerged at a late stage, after the Home Secretary had rejected the application on the basis that the SSF could not be regarded as "agents of persecution" unless the police were conniving at their activities or were unwilling or unable to prevent them, and had drawn attention to the absence of any complaint of further problems from the police, could reasonably be regarded as having a bearing on its credibility. The Special Adjudicator had before him the petitioner's explanation of why he had failed to give a full account at the interview. I do not consider that he was obliged to accept that explanation. I note that the purpose of the interview was explained to the petitioner at the outset:

The importance of the petitioner's understanding the questions was emphasised:

The petitioner signed a declaration that he had been told that he must tell the immigration officer why he needed to have asylum in the United Kingdom, and that he understood what the interpreter was saying. He signed every page of the immigration officer's note of the interview. At the conclusion of the interview he confirmed that he had understood all the questions and had understood the interpreter. He was given an opportunity to make alterations to his answers, and made a number of such changes. He confirmed that there was nothing further he wished to add to or change. He signed a further declaration to the effect that he had been told that he had been interviewed so that he could say why he needed to have asylum; that he had understood everything that had been said to him and had been able to tell the immigration officer why he needed to have asylum; that he had also been given the chance to tell the immigration officer anything else which might help the Home Office decide whether or not to give him asylum; and that he had had the interview notes read to him and was satisfied that they were an accurate record. He was given a copy of the notes at the end of the interview. The Special Adjudicator will have been aware of these matters, which were disclosed by the documents before him.

I bear in mind that a Special Adjudicator must be careful before rejecting an asylum-seeker's account as incredible, given that the decision under appeal is said to be one which may put the appellant's life at risk, and given also the cultural, linguistic and other difficulties (including those described in para.198 of the U.N. Handbook) which may affect a genuine asylum-seeker. Nevertheless, I must also bear in mind that credibility is a question of fact (cf. R. v Secretary of State for the Home Department, ex parte Agbonmenio [1996] Imm. A.R. 69). Such questions have been entrusted by Parliament to the tribunal of fact - in this case, the Special Adjudicator - and it would be constitutionally improper for the court to interfere with that tribunal's assessment except on Wednesbury grounds. It is also important - especially in a case such as the present, when the court has the same evidence before it, in the same form, as the Special Adjudicator - to bear in mind that the Special Adjudicator has been specially appointed to hear asylum appeals and has the benefit of his own training and experience in dealing with asylum-seekers from different societies and cultures: something of which a judge is unlikely to have any comparable experience. As Sir Thomas Bingham M.R. (as he then was) observed in Sahota v Immigration Appeal Tribunal [1995] Imm. A.R. 500, 506:

In the present case, I can see no valid basis for criticism of the Special Adjudicator's decision on the ground of unreasonableness.

Counsel for the petitioner next submitted that the Special Adjudicator had failed to give adequate reasons for rejecting the credibility of the petitioner's account. In particular, the Special Adjudicator had given no reason for rejecting the explanation put forward by the petitioner for his failure to give a full account during his interview. The Special Adjudicator might have had in mind matters such as those which I have just mentioned; but one could only guess whether he had even paid any regard to the explanation tendered.

The hearing before the Special Adjudicator was governed by the Asylum Appeals (Procedure) Rules 1996, S.I. 1996 No.2070. Rule 11(1) required the Special Adjudicator to issue a written notice of the determination. Rule 2(3)(b) provided:

The Special Adjudicator also fell within the scope of section 10 of the Tribunals and Inquiries Act 1992, which also imposed an obligation to give the reasons for any decision.

Counsel for the Home Secretary adopted a rigorous approach to Rule 2(3)(b): on his analysis, the credibility of the petitioner was a "substantial issue"; the difference between the two accounts given at interview and in the written statement was the subject of a "finding of fact"; and the petitioner's failure to mention during his interview the arrests and beatings described in the written statement was the "reason" for the decision on credibility. I am inclined to doubt whether the three matters listed in Rule 2(3)(b) should be treated as watertight compartments into one of which every material element in a determination finds its natural home: it is artificial, to my mind, to treat every determination as being divided, like Gaul, into three parts. Approaching the matter somewhat more broadly, however, Rule 2(3)(b) specifies what one would expect to find in a reasoned decision by any judge or tribunal: a determination of the points at issue, the material findings of fact, and an explanation of the reasoning. This model appears to have been implicitly followed by the Special Adjudicator in the present case. After summarising the parties' submissions, he defines the issue raised in any appeal against the refusal of asylum:

At the end of the determination he states his decision on the substantial issue raised in this particular appeal:

The findings of fact material to that decision can be found in the preceding paragraphs:

The reasoning connecting these findings of fact to the decision on the substantial issue is made perfectly clear, in the passages which I have quoted and need not repeat. The reasons for the findings themselves are also clearly explained. In particular, it can be seen that the Special Adjudicator applied his mind to the petitioner's explanation for his failure to mention police harassment at the interview ("I was confused..... it was difficult to understand exactly what was being asked"), and rejected it for reasons which he explains:

As was observed by Lord President Emslie in Wordie Property Co. Ltd v Secretary of State for Scotland, 1984 S.L.T. 345, 348:

That observation was made in the context of planning law, but it appears to me to provide a reliable guide in the present context also. A very similar approach can be found in the judgment of Lord Lane C.J. in R. v Immigration Appeal Tribunal, ex parte Khan [1983] Q.B. 790, 794:

Dicta containing more detailed requirements, to which I was referred, appear to me to reflect the particular circumstances of the cases concerned. I would not myself be inclined to impose any dogmatic requirements beyond those contained in the passages which I have just quoted and in Rule 2(3)(b) itself, together with a recognition that much will depend on the circumstances of the particular case. In the circumstances of the present case, I am satisfied that the Special Adjudicator gave adequate reasons for his determination.

Counsel for the petitioner finally submitted that the Special Adjudicator had acted in a manner which was procedurally unfair: he had rejected the credibility of the petitioner's account, because of the petitioner's failure to mention police harassment at the original interview, without raising this issue at the hearing and giving the petitioner an opportunity to provide an explanation.

In considering this submission, I take as my starting-point Bingham L.J.'s statement in R. v Secretary of State for the Home Department, ex parte Sittampalam Thirukumar [1989] Imm. A.R. 402, 414 that "asylum decisions are of such moment that only the highest standards of fairness will suffice." In the present case, the petitioner was legally represented at the appeal hearing. As those advising him will have been aware, the onus lay upon the petitioner to satisfy the Special Adjudicator that he had a well-founded fear of persecution. The petitioner elected not to give oral evidence at the hearing before the Special Adjudicator: his appeal proceeded solely on the basis of documentary evidence, including in particular the record of the interview and the later written statement. The difference between the account given in the record of the interview and the account given in the written statement was patent. Most importantly, the written statement contained an explanation of the petitioner's failure to give "as full an account... as I should have done" during the interview ("I was confused.... I was in prison.... I did not have any representation.... it was difficult to understand exactly what was being asked... I felt fearful and intimidated"). I can see no reason why it should have been incumbent upon the Special Adjudicator, as a matter of fairness, to seek any further explanation (cf. Sahota v Immigration Appeal Tribunal at 504-505 per Kennedy L.J). Counsel for the petitioner indeed accepted that the only explanation which could be given was that already before the Special Adjudicator in the written statement. In these circumstances, the allegation of procedural impropriety is in my opinion without merit. In the whole circumstances I shall refuse the petition.