Scottish Court of Session Decisions

This reclaiming motion is concerned with the petitioner's claim for asylum in the United Kingdom. As the Lord Ordinary narrates in her Opinion, he is an Indian National who arrived in the United Kingdom on 6 July 1996 and was granted six months leave to enter. Prior to his entry to the United Kingdom he was a businessman in the Punjab. He claimed that from about the middle of 1995 he was the subject of repeated and written threats from militants who demanded money from him and threatened to kill him or abduct his children if he refused to comply. He reported these threats to the police but they failed to catch the militants. Thereafter and on the basis that he had informed on them to the police the threats from the militants increased. The petitioner feared for his life and sent his family to stay with relatives and left the country. Following his arrival in the United Kingdom he received telephone calls from India informing him that his absence from that country had not stopped the militants' threats against him. He claimed asylum on 17 December 1996. His claim for asylum was refused by the Secretary of State for the Home Department by letter served on him on 27 January 1997. In terms of that letter the Secretary of State indicated that he had concluded that the petitioner had not established a well-founded fear of persecution within the terms of the 1951 United Nations Convention relating to the Status of Refugees and that he therefore did not qualify for asylum. The petitioner appealed against the refusal of asylum to a special adjudicator who by a determination dated 18 June 1997 dismissed the appeal. For reasons which we need not discuss and upon which nothing now turns, the petitioner was held not to have any right to appeal to the Immigration Appeal Tribunal.

In the present proceedings the petitioner seeks judicial review of the decision refusing him asylum. The Lord Ordinary dismissed the petition and it is against her interlocutor that this reclaiming motion is brought.

The first submission by counsel for the petitioner was that the Lord Ordinary had erred in law in concluding that the special adjudicator had taken the "evidence" of the petitioner pro veritate. He went on to contend that the Lord Ordinary should have decided that the adjudicator had fallen into error by not giving adequate and intelligible reasons for his decision and in particular by refraining from pronouncing on the credibility of the petitioner's account.

The Lord Ordinary examined the material which was before the adjudicator and it is plain that the latter had proceeded upon the assumption that the petitioner's assertions were to be accepted pro veritate. We are quite unable to follow why this approach was not open to him. The substance of this material was slight. He had to rely solely upon the record of an interview which took place between an official of the Home Office Asylum Directorate and the petitioner after the latter had applied for political asylum. On the date of the hearing before the adjudicator, the petitioner did not appear to give evidence, nor was any documentary material furnished on his behalf. We shall have cause to refer later to the record of the interview but at this stage it is sufficient to observe from a study of his decision that the adjudicator reached his determination upon the basis that the appellant had failed to make out his case. Counsel for the petitioner accepted that the onus of proof lay upon the appellant to establish "a reasonable degree of likelihood that he will be persecuted... if returned to his own country" (R. v Secretary of State for Home Department ex parte Sivakumaran [1988] 1 AC 958, at p. 994 per Lord Keith of Kinkel). The adjudicator did not express any view upon the credibility of the pursuer's account. This is hardly surprising in view of the petitioner's failure to appear at the hearing. Having studied the adjudicator's reasons it is clear to us, as it was to the Lord Ordinary, that he was entitled to proceed to reach his determination upon acceptance of the answers given by the petitioner to the questions asked at his interview. We find no substance in the submission that the Lord Ordinary fell into any error of law in this context.

Criticism that the Lord Ordinary had erred in not holding that the adjudicator had failed to give adequate and comprehensible reasons for his decision is, in our opinion, also unfounded. Counsel for the petitioner founded strongly on the opinion of Lord Macfadyen in Singh v Secretary of State for the Home Department 1998 SLT 1370 when he said (at 1374J):

Counsel submitted that the failure on the part of the adjudicator in particular to express any assessment of the petitioner's credibility demonstrated the inadequacy in law of his reasons.

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 supra. This is the first of the three dicta referred to by Lord Macfadyen in Singh supra and it is also referred to in the Opinion of the Lord Ordinary in the present case. In our view, any additional judicial statements are merely a gloss on the basic test. The other two dicta referred to by Lord Macfadyen may well be in point and possibly of high relevance should a conflict of evidence or a question of credibility arise which has to be resolved by the adjudicator. However, in the present case, these dicta are nothing to the point in view of the approach of the adjudicator to the limited material before him. No such questions arose. The Lord Ordinary considered that the adjudicator had reached the view that the petitioner had failed to overcome the necessary burden of proof and had failed to bring himself within the scope of the Convention. She was satisfied that his determination left the Court in no doubt as to the basis of his decision. From our own separate study of the adjudicator's reasons we are in full agreement with the Lord Ordinary.

Before departing from this chapter of the case, we consider it desirable to add some observations of our own about the nature and extent of reasons which have to be given by statutory tribunals. 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 Limited supra. The extent and adequacy of the reasons which are set out is bound to vary according to circumstances (Safeway Stores Plc v National Appeal Panel 1996 SC 37). Much will depend on the nature of the tribunal and any rules under which it is required 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 judicial one (Lawrie v Commission for Local Authority Accounts in Scotland 1994 SLT 1185; C, Petitioner 1999 SC 551).

In connection with immigration appeals it is to be noted that in terms of the Rule 2 of the Asylum Appeals Procedure Rules 1996 every determination is to consist of a "concise" statement of (i) the decision on substantial issues raised; (ii) any findings of fact material to the decision; (iii) the reasons for the decision. We agree with the view of Lord Penrose in Mohammed Asif, Petitioner, 12 January 1999 unreported at p. 10:

Reading the special adjudicator's decision as a whole, we are quite satisfied that in the circumstances of this case it satisfied the particular requirements relating to the giving of reasons in judgments in this particular field of law.

Counsel for the petitioner next submitted that both the adjudicator and Lord Ordinary were wrong in law to conclude that on the available material the petitioner had not satisfied the onus of proof. He argued that on a proper interpretation of this material, even upon the basis of accepting it pro veritate, the only true conclusion was that the petitioner was entitled to asylum. So that this submission can be understood, it is necessary to set out certain questions and answers given on pages 4 and 5 of the interview record:

In order to be entitled to asylum the petitioner had to establish that he fell to be treated as a refugee in terms of the Convention and Protocol relating to the Status of Refugees of 1951. In terms of Article 1A(2) a refugee is any person who:

It was accepted that the petitioner first of all had to establish that he had a well-founded fear of being persecuted and thereafter that he was being persecuted for a particular reason or reasons. Counsel referred us to the Handbook on Procedures and Criteria for Determining Refugee Status under the 1951 Convention, and in particular to Paragraph 65 which states:

"(g) Agents of persecution

Counsel for the respondent informed us that the Home Office regarded the Handbook as an authoritative guide to the interpretation of the Convention and for the purposes of this reclaiming motion we are content to look upon it in the same way.

It appears to have been accepted before the special adjudicator that the "militants" referred to by the petitioner at the interview were to be regarded as agents of alleged persecution, and no argument to the contrary was presented at any stage of these proceedings. Counsel for the petitioner did not contend that the authorities had refused or were unwilling to give effective protection to the petitioner. He submitted that on the basis of the information given at interview the only reasonable inference which could be drawn was that they were unable to provide such protection. The petitioner was therefore at the mercy of offensive acts by elements of the criminal population and this caused him to have a well-founded fear of persecution within the meaning of the Convention.

The contention that a State is "unable" to give effective protection to one of its subjects begs the question as to what is meant by an inability to do so. At one extreme where the authority is to be regarded as refusing to protect an individual or is shutting its eyes to persecution, the position is quite clear. Such a situation is indicative of unwillingness rather than inability to protect and that may well constitute persecution within the meaning of the Convention. The Lord Ordinary in her Opinion states:

It was submitted that this passage was too restrictive in its definition of the underlying issue. We agree with that criticism. It follows that if the Lord Ordinary had made this the foundation of her judgment, then it would have been flawed. However, a study of her Opinion demonstrates that she also had regard to the question of whether the authorities were unable to provide protection.

Leaving to one side, therefore, cases where lack of protection results from refusal to act, or from wilful laxity, or possibly indifference on the part of the authority, how should the Court approach the problem where an issue of this kind arises? In our opinion, a useful starting point is to be found in a decision of the Supreme Court of Canada where it was held that in the absence of clear and convincing evidence to the contrary, nations should be presumed capable of protecting their citizens. "Security of nationals is, after all, the essence of sovereignty" (Attorney-General of Canada v Ward (1993) 103 DLR (4th) 1, at p. 10 per La Forest J.). The Immigration Appeal Tribunal in the United Kingdom has recently asserted that the test of a country's ability to provide protection is determined by ascertaining whether the system of domestic protection which is in place is "sufficient" from the perspective of international law. If it is, international protection is not required. (Debrah v Secretary of State for the Home Department [1998] Imm. A.R. 511; Horvath v Secretary of State for the Home Department [1999] Imm. A.R. 121). This test has received some support from the Court of Appeal in the appeal from the decision of the Appeal Tribunal in the case of Horvath v. Home Secretary 2 December 1999 unreported, the judgments in which were issued after this reclaiming motion was heard. On the other hand there is a suggestion in another recent judgment in the Queen's Bench Division that the ability to give protection is to be judged by whether or not the State takes "reasonable steps" to protect the individual from persecution (R. v Immigration Appeal Tribunal ex parte Subramaniam 1999 Imm. A.R. 359 per Collins, J.).

We are reluctant to expound any hard and fast rule by which a State's ability or otherwise to protect its subjects from persecution is to be judged.

(R. v Home Secretary, ex parte Sivakumaran supra at p. 993 per Lord Keith of Kinkel). Notions such as the sufficiency of domestic protection or the reasonableness of steps to protect the individual may well be relevant but taken by themselves as standards they may beg more questions than they answer. We consider that everything must depend upon the circumstances of each case and in asylum cases the variety of situations must be very large. We observe that in Adan v Secretary of State for the Home Department [1999] 1 AC 293 at p. 306 Lord Lloyd of Berwick was careful not to define the protection test "But if, for whatever reason, [our italics] the state in question is unable to afford protection against factions within the state, then the qualifications for refugee status are complete". Following that wide expression of opinion, we prefer to approach such problems, if and when they arise, on an examination of the facts and circumstances of each case. Nevertheless we find it useful in this case to have regard to what was said in Horvath v Home Secretary by Ward, L.J. at p. 34:

In the present case we observe that India has been designated by the Secretary of State under paragraph 5(2) of Schedule 2 to the Asylum and Immigration Appeals Act 1993 (as amended) as a country in which there is in general no serious risk of persecution. The special adjudicator was made aware from a production in the case entitled "Country Assessment - India" that Sikh militant unrest in Punjab had subsided to an extent that it had been possible to hold peaceful elections in the State once more and that violence had reduced significantly in recent years. We agree with the Lord Ordinary that this description of the situation in Punjab was relevant background material for the special adjudicator to take into account in his consideration of the petitioner's application.

The onus was on the petitioner to advance satisfactory evidence that the Indian authorities could not give him protection so that he was compelled to seek asylum overseas. On any view this was an uphill task, given that the petitioner did not appear to give evidence nor was any other evidence adduced on his behalf. Mr. Bovey, Q.C., stressed that his criticism was not of the reasonableness of the special adjudicator's decision but of the reasons or lack of reasons given by him for his decision.

We are, however, satisfied that the reasons given by the adjudicator were adequate and provided a sufficient basis for his conclusion that the petitioner had not made out his case.

On the one hand the adjudicator was entitled to take into account the information from the Home Office, to which we have just referred, about the improved state of security in the Punjab. Having regard to that information, the adjudicator was entitled to proceed on the basis that there had been a significant decline in violence and a consequential decline in terrorist organisations and their activities in the region. The adjudicator was also entitled to have regard to the fact that he had no reason to believe that the police would not protect citizens of India from threats or that they would fail to investigate crimes against them. All these were factors which had a bearing on the decision which the adjudicator had to reach. On the other hand there was the evidence of the petitioner which indicated that on one occasion the police had indeed co-operated with him in trying to set a trap for the militants. We observe that in itself this evidence pointed to the fact that, in the past at least, the police authorities had been capable of acting to assist the petitioner. He said that subsequently "the police could not help me any more". This is a very unspecific assertion but, even taking it at its highest, the adjudicator was entitled to reach the view, as he said, that this evidence, when considered in the context of the other evidence before him, did not establish that the Indian authorities in the Punjab were unable or unwilling to offer effective protection - whatever might have happened on a number of specific occasions. In particular he was entitled to hold that, if the petitioner had suffered through the inaction or ineffectiveness of the police in the past, nonetheless any complaint about such inaction or ineffectiveness which the petitioner made to the Indian authorities would be properly dealt with. On that basis the adjudicator was entitled to take the view that the petitioner should look to the Indian authorities for action to protect him rather than seeking that protection in asylum in this country.

In our view, having regard to the test laid down in Wordie, the decision of the adjudicator, which we have analysed, leaves no real and substantial doubt as to what the reasons for his decision were and as to the material considerations which he took into account. Moreover the reasons which the special adjudicator gave were capable of justifying his conclusion that the petitioner had not established his case to the necessary standard of proof as laid down in the passage from Lord Keith's speech in ex parte Sivakumaran to which he referred. Similarly, in the words of Ward L.J. the adjudicator's reasoning would justify the conclusion that there was a "discernible system of criminal justice." In other words the special adjudicator was entitled to hold that the petitioner had not demonstrated a reasonable degree of likelihood that he would be persecuted for a Convention reason if he returned to his own country. On that basis he had not established a well-founded fear of persecution and in terms of the Convention his application must fail. The Lord Ordinary reached a similar conclusion and there is no basis upon which we would be entitled to interfere with her view.

The petitioner also had to show that he was persecuted for reasons of race, religion, nationality, member of a particular social group or political opinion. The special adjudicator does not appear to have found it necessary to consider this aspect for the purpose of his decision. The Lord Ordinary did give some consideration to it and counsel for the petitioner submitted that she was in error in not considering whether the petitioner might fall within the category of refugee as a police informer or one to whom political opinion might be attributed (Islam v Secretary of State for the Home Department [1999] 2 WLR 1015). Since, however, the adjudicator was entitled to conclude that the petitioner had failed to establish that he was persecuted within the meaning of the Convention we find it unnecessary to reach any view as to whether the argument which we have briefly outlined is well-founded.

The reclaiming motion is refused.