Scottish Court of Session Decisions

4 April 2000

[1] In the case of applicants seeking political asylum in this country, the Secretary of State has devised what is described as a fast track procedure, to process certain applications. When the Secretary of State certifies that a particular application is without merit, the next step in the procedure is that the applicant can go before a Special Adjudicator, who then has to decide if he agrees with the Secretary of State's certificate. If the Adjudicator agrees with the certificate, then the asylum seeker is denied a further appeal to the Immigration Tribunal. Appeals to the Immigration Tribunal are not restricted to questions of law. Accordingly, if the Adjudicator has erred in his fact finding function in any case the applicant is deprived of a significant avenue of appeal. It is accepted in the present case that if the certificate has not been properly endorsed by the Adjudicator, then the entire determination falls and the matter has to be remitted back to another Adjudicator to hear the case again.

[2] The legal framework within which this matter has to be considered is as follows. Sections 1 and 2 of the Immigration Act 1971 describes the persons who have a right of abode in the United Kingdom. The petitioner comes under neither of these classes. Further, in terms of sections 1(2) and 3(1) an applicant may be granted limited or unlimited leave to enter the United Kingdom. Section 3(2) of the Act allows the Secretary of State to promulgate Immigration Rules and section 3(3) provides that limited leave to enter the United Kingdom can be varied. In the present case the petitioner arrived with limited leave and so the present application is properly regarded as an attempt to vary his right to remain. If the present application is refused, then the next step of the procedure is that the Secretary of State will serve upon the applicant a Notice of Deportation. It appears to be clear that any right of appeal against such an order in the applicant's case would be virtually non-existent (Immigration Act 1971 section 15; Immigration Act 1988 section 5). The relevant Immigration Rules which cover the grant of asylum are contained in Rule 334 of the Statement of Changes in Immigration Rules (H3 395) which were laid before Parliament on 23 May 1994. Rule 334 states:

[3] Rule 336 provides that an application which does not meet this criteria will be refused and Rule 346 in effect only allows for a second asylum application if it proves to be sufficiently different from a previous one. The Asylum and Immigration Appeals Act 1993 section 8 provides for the appeals to the Special Adjudicator and in Schedule 2 to the Act there are supplementary provisions dealing with such appeals. In particular, paragraph 5 of Schedule 2 in effect requires that a claim should be rejected if certain considerations apply. Paragraph 5(5) applies to a claim if the evidence adduced in its support establishes a reasonable likelihood that the appellant has been tortured in the country to which he is to be sent. In other words, the application will fail if the applicant cannot demonstrate that there is a reasonable likelihood that he has been tortured in the country to which he will be deported.

[4] The factual background is usefully contained in the petitioner's inventory of productions. In his original application the petitioner intimated that he had no political or religious problems in his country of origin, but that is a normal feature of such applications where to express or explain such difficulties might be inappropriate. The petitioner applied for asylum on 31 October 1995 in the United Kingdom. He then filled out a Self-Completing Questionnaire as to why he needed asylum. This provided inter alia a history of the circumstances which he claimed provided identification for asylum in his case. The petitioner is a Muhajir. The Muhajirs were displaced by the partition of India and Pakistan in 1949. They are Muslims from Punjab, and after partition they moved to the Sindhi region around Karachi. They formed a political movement known as the MQM and the petitioner became prominent in this movement. In his account the petitioner explained that he had been detained by the police in 1990 following difficulties with his political opponents, and thereafter detained for six days in custody during which time he was tortured. In 1992 attempts were made on his life. He had to move from Karachi to another area, but his troubles followed him and he returned to Karachi.

[5] On 29 October 1997 the Secretary of State issued his reasons for refusal of the petitioner's application. In general terms, the Secretary of State indicated that he was aware that there were some areas of political unrest in the region, but was satisfied that membership of the MQM in all the circumstances did not in itself constitute a risk of persecution. Further, the Secretary of State concluded that the applicant had not established his claim that he had been tortured. Accordingly the application was refused. The Secretary of State then issued his Notice of Refusal to vary the petitioner's leave to remain in the United Kingdom in terms of Rule 336 (supra).

[6] A notice of appeal was lodged to the Special Adjudicator, accompanied by an explanatory statement. The Secretary of State put three documents before the Adjudicator, namely the Self-Completing Questionnaire, the refusal notice and a Home Office Country Assessment. For the petitioner there was submitted a chronology of events drawn up by his counsel, which included a statement that he had been detained for six days in 1990, plus a skeleton argument. The Adjudicator's judgment dated 17 September 1998 confirmed the Secretary of State's decision. It is against that confirmation that the present petition for judicial review is taken.

[7] The standard of proof that the petitioner must demonstrate in this matter is that there is a reasonable degree of likelihood that he will be subject to torture in the event of his return to his native country. There has to be a serious possibility that this will happen. However, the Adjudicator rejected the application. His reasons for doing so were that he found that the applicant was wholly incredible. Counsel for the petitioner submitted that he was wrong to do so, because he had seized upon the purported discrepancy between what was said in the Self-Completing Questionnaire to the effect that his detention had been in 1990 whereas in evidence before the petitioner had claimed that he had been incarcerated in 1992. This discrepancy, counsel maintained, did not exist. The petitioner had linked his detention to the split in the MQM, which the Secretary of State confirmed in his decision letter had taken place in 1992. It was clear that there was therefore no discrepancy in the petitioner's position. The Adjudicator had the evidence of the petitioner and the evidence of the scan on the petitioner's nose, which he attributed to the torture. Any discrepancy was simply a mix up. The fact that the petitioner had a scar on his nose was not referred to in the Adjudicator's note, although the petitioner was undoubtedly present during the appeal, and it could not therefore be understood why the Adjudicator had ignored the petitioner's claim in this matter. Nor was there any specific reference to paragraph 5(5) of Schedule 2 to the 1993 Act (although it is accepted that this was not strictly necessary at this stage).

[8] Turning to the law, counsel for the petitioner submitted that although there was no statutory requirements to give reasons for the Secretary of State's certificates, there was a requirement to give reasons for his decision. In Clyde on Judicial Review, para.17.24, it was made very clear that proper reasons require to be given in a matter of this kind and a simple statement of the decision will be insufficient. Counsel also referred to an article by Professor Fordham in the 1998 Judicial Review p.158 which argued inter alia that the requirement to give proper reasons was an exercise in self-discipline imposed by the law on the person responsible for the decision. Where there is an obligation to find the facts and to state reasons, these two elements must be carefully distinguished (Clyde (supra) pra.17.24). Counsel for the petitioner accepted that these rules had been somewhat relaxed in the case of Singh v The Secretary of State for the Home Department 2000 S.L.T. 243, where the court concluded that an excessive legalism was not appropriate to the determination of these issues. However, he submitted that in any case it was always a matter of the facts and circumstances which would determine the outcome; reference was made to Hanif v The Secretary of State for the Home Department 1999 SCLR 48 p.576. In the present case, there were no findings by the Adjudicator in respect of the scar which the petitioner claimed had been caused by the torture he received in 1992, and no attention had been given to paragraph 5(5) of the regulations. Accordingly, counsel for the petitioner argued that became of the requirement to give reasons, and particularly because of the notion that reasons must be given as an exercise in self-discipline, the informed reader has in this case to doubt whether the Adjudicator has applied his mind to the question posed by paragraph 5 of Schedule 2 to the 1993 Act, and in particular to the fact that the court must have regard to the applicability of the paragraph, subject to the non-applicability of paragraph 5(5). Counsel claimed that it is significant that this last sub-paragraph talks about the question of likelihood.

[9] Counsel for the petitioner then submitted that the Adjudicator's reasons for refusing the appeal were insufficient. In the present case the Secretary of State had certified in his reasons for refusal letter that paragraph 5(5) of the Schedule did not apply as there was no evidence of torture. In his interview with the Special Adjudicator, the petitioner complained that he had been beaten by the police. The Secretary of State's certificate cannot be upheld in circumstances where there is no finding that there was no evidence of torture, or alternatively no finding that the evidence in respect of torture was insufficient. The reasons for refusal are silent on this matter. It is therefore not possible to tell whether the Special Adjudicator found that the petitioner was scarred by the police, or whether the scar was not evident at all. If there is a suggestion that someone's life is at stake, a rigorous examination of the situation is required (Singh v Secretary of State for the Home Department 1998 S.L.T. 1370). The consequences for the present petitioner of this failure was serious. He was deprived of an appeal on the facts; he cannot make a fresh application claim under section 246 and he cannot extend his leave to remain in the United Kingdom. Counsel therefore asked for the petition to be granted and returned to another Immigration Adjudicator to hear the appeal de novo.

[10] For the respondent it was accepted that if the Special Adjudicator had erred in agreeing with the certificate of the Secretary of State then his decision should be reduced and the matter returned to another Special Adjudicator. However, he emphasised that the onus of proof in this case is on the applicant (Asylum Procedure Rules 1996 para.31.2). It was also accepted that when asylum applications were considered, an anxious scrutiny was needed, but this was something which applied to all such cases, and in many respects asylum cases were no different from others where the court was exercising a supervisory jurisdiction. The question to be answered was whether or not the Special Adjudicator had erred in a recognised way. Counsel also submitted that the loss of rights of appeal in fact and in law were irrelevant to the present decision; the real test was whether the administrative process had been lawful. In other words, what the court had to determine is whether or not the Special Adjudicator could reasonably have come to the conclusion which he did; it was certainly not for the court to substitute its own view.

[11] In particular, counsel for the respondent submitted that there were three essential propositions in the present appeal. The first was whether the Special Adjudicator on the evidence was entitled to reach the conclusion that he did on the petitioner's credibility. The second was whether he was entitled to agree with the Secretary of State that the petitioner's claim was one to which paragraph 5(5) did not apply; in other words whether it was reasonable for him to conclude that the evidence did not show that there was a reasonable likelihood that he had been tortured in the country to which he would return. Thirdly, the question was whether or not the Adjudicator had given adequate reasons in respect of the first and second questions. Counsel for the respondent then addressed the matter of the law that applies to a case of this kind. The first hurdle which the applicant must get over is to establish that he is a refugee, and in particular that he was outwith his own country; secondly that he has a subjective fear about his return to that country; and thirdly that he can prove objectively that he is justified in holding that fear. Further, he must prove a causal link between all of that and the reasons why he cannot return to his own country. This is the first question which the Adjudicator had to determine and if he formed a view adverse to the applicant, then the application ends. This process depends on an assessment of credibility; reference was made to Kingori v The Secretary of State for the Home Department [1994] Imm. App. 539; Bhatti v The Secretary of State for the Home Department (unreported 6 November 1998) and Robinson v The Secretary of State for the Home Department [1997] Imm. App. ref.568 para.36. To succeed the petitioner has to say that the Adjudicator was bound to have reached the conclusion which he was contending for, and that the Adjudicator's judgment in refusing to do so must be held to be unreasonable (Kulwinder Singh v The Secretary of State for the Home Department (unreported 26 January 2000)).

[12] As far as the law on adequacy of reasons was concerned, both sides appeared to accept that they were bound by the cases of Wordie Property Co Ltd v Secretary of State for Scotland 1984 S.L.T. 345 and Singh v Secretary of State for the Home Department 1998 S.L.T. 1370. While every case has to be looked at in its facts and circumstances, the case of Singh certainly relaxed any notion of a more stringent approach to assessing these decisions and a flexible approach should be taken. Counsel for the respondent accepted that the Special Adjudicator should reach an independent judgment in deciding whether or not to agree with the Secretary of State's certificate. In the present case, that decision revolved around the question of whether the applicant had been tortured. The applicant claimed that he had been tortured, but in effect the Special Adjudicator says that he did not believe him. There is no requirement that in some way the Special Adjudicator has to carry out an independent examination in respect of what is said in paragraph 5(5); that was for the original assessment and there was no duty on the Special Adjudicator to mention paragraph 5(5) at all. In essence, the matter was simply one for the decision taker (the Secretary of State) to categorise the claim in terms of Schedule 2 and thereafter it is for the Special Adjudicator to decide whether or not he agrees with that categorisation (Meflah v The Secretary of State for the Home Department [1997] Imm. App.555). In Mehmood Tariq v The Secretary of State for the Home Department (unreported 9 July 1998) it is clear from the facts that the Secretary of State had failed to indicate why sub-paragraph 5(5) did not apply and accordingly the Special Adjudicator found that he was not in a position to determine whether the applicant's claim had been rejected on the grounds that his claim was not credible or whether it was rejected because the evidence was insufficient. In that case, the Secretary of State did conclude that there was no evidence of torture when clearly there was; on the contrary in the present case there was evidence of a claim that torture had taken place and this had been dealt with.

[13] Counsel then went on to deal with what he considered was the correct understanding of the Adjudicator's approach. What the Adjudicator had before him was the applicant's written Self-Completing Questionnaire, together with evidence from the applicant himself. This however only amounted to evidence from one source. The essential question which the Adjudicator had to look at was whether or not he could reasonably come to the view that the applicant had claimed that he had been detained in 1990, in terms of the questionnaire. In counsel's view, it was perfectly clear that there was a plain distinction between the events of 1990 which were linked to the applicant's detention, and 1992 where significantly different circumstances seemed to apply. This was emphasised by the statements in the questionnaire to the effect that he was again in custody briefly in 1992, but there is no claim that he was then tortured. He did claim to be tortured again in 1993. As a result of this, the applicant claimed that he had a small scar on his nose. It was perfectly reasonable and possible on this narrative for the Special Adjudicator to conclude that in his oral evidence the applicant had changed his version of events. He was not bound to find that the correct position was as contended for by the appellant. What the Adjudicator has to do was to assess the evidence; that is precisely what he has done. It is clear that the Adjudicator did not believe that the applicant was telling the truth. The inconsistency on dates was the basis for rejecting the applicant's credibility. It had to be borne in mind that the Adjudicator had both seen and heard the applicant at the appeal. In other words, the Adjudicator was employing exactly those powers that he had been given. The Adjudicator in particular rejected the evidence that the scar was as a result of torture. In all these circumstances, it was clear that the Adjudicator's decision could not be regarded as unreasonable and accordingly the appeal should be refused.

[14] I am satisfied that counsel for the respondent correctly identified the issues which have to be examined in an appeal of this kind. It is for the applicant to demonstrate in terms of paragraph 5(5) of the Second Schedule to the Asylum and Immigration Procedure Rules of 1993 that there is a likelihood that he has been tortured in the country to which he will be returned if his application fails. In the first instance, that decision is one for the Secretary of State to make. The Secretary of State came to a decision on that matter in proper form, and intimated his refusal to the applicant. No issue was taken with that step in the procedure. The applicant's appeal to the Special Adjudicator required the Adjudicator to state clearly his reasons for agreeing with the Secretary of State, if that is what he does. In the present case, the issue on the facts was a very narrow one. The applicant claimed in his Self-Completing Questionnaire that in 1990 he had been detained for six days and tortured by the police at the instance of political opponents. He then went on to claim that he was arrested again in 1992, but that he was not tortured on that occasion. He gives some further unspecified details of torture in 1993. I cannot accept the applicant's interpretation of this narrative as being, in effect, a description of one course of events which led to his incarceration and torture in 1992. A simple reading of the applicant's own account makes it most unlikely that such a picture is intended to be conveyed. In any event, what is important is that on a straightforward reading of what is contained in the questionnaire, the Special Adjudicator was fully entitled to come to the view that he did on the narrative of the events as submitted by the applicant. I note also that in an attempt to explain the confusion over dates to the Adjudicator, the applicant merely suggested that there had been a mix up, as opposed to explaining that the references to difficulties with the authorities in 1990 and 1992 in fact referred to one and the same occasion. That being so, the only question which remains to be determined is whether or not the Special Adjudicator was entitled to conclude that the applicant was incredible. It must be conceded that the Adjudicator's justification, as explained in his letter , is brief and not as detailed as one would perhaps have preferred. However, what is very plain is that he has concluded, on the basis of a hearing at which the applicant gave evidence, that the applicant was wholly incredible and unreliable. As counsel for the respondent submitted, this was entirely a matter for the Adjudicator and indeed something which he is instructed to do as part of his employment. In particular, the Adjudicator found the confusion over the dates and events of 1990 and 1992 was of such a character that it suggested to him that the applicant was not merely mistaken but that he was untruthful. In the exercise of assessing a witness's credibility and reliability in the context of a judicial or quasi-judicial exercise, it is exactly that kind of discrepancy that that may point to or confirm an apprehension on the part of the Tribunal that a particular witness is not reliable. In these circumstances, the point in this review comes down to a very simple issue. I cannot see any reason for concluding that the Special Adjudicator erred in the exercise of his discretion when considering the evidence in the way in which he did. I consider that the reasons which he gave are adequate to support his conclusion. He was satisfied that in one particular respect the applicant was untruthful and that appears to have confirmed his conclusion that the applicant was untruthful in respect of every other matter to which he referred. As far as the question of the scar on the applicant's nose is concerned, the Adjudicator notes the applicant's claim that the scar is physical evidence of the torture he received, but it is qu

[15] In all the circumstances, the prayer of the petition should be refused.