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Cite as: [2001] ScotCS 122, 2001 SCLR 748

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OUTER HOUSE, COURT OF SESSION

P189/00

OPINION OF LORD MACKAY OF DRUMADOON

in the petition of

NAZIM SATTAR (otherwise known as MOHAMMED NAZIMUDDEN), (Assisted Person)

Petitioner;

for

Judicial Review of decisions of a Special Adjudicator and the Immigration Appeal Tribunal.

________________

Petitioner: Sutherland; Morton Fraser

Respondent: Carmichael; H MacDiarmid, Solicitor to the Advocate General

24 May 2001

[1] The petitioner was born in Bangladesh on 4 June 1957. He is of Bangladeshi nationality. He lived in Bangladesh until August 1991. On 18 August 1991, the petitioner entered the United Kingdom, with entrance clearance for a 6 month visit. On 10 February 1992, the petitioner sought to extend his stay as a visitor in the United Kingdom. That application was refused on 18 June 1992, when his stay to the United Kingdom was limited to 18 July 1992, under the Immigration (Variation of Leave) Order 1976 (as amended). On 3 June 1994, the petitioner applied for asylum. On that date, a Self Completion Questionnaire ("SCQ"), constituting his Asylum Application, was completed by the petitioner's legal advisors and signed by him. On 24 October 1995 the petitioner underwent an asylum interview, the record of which is one of the productions in these proceedings. The petitioner's application for asylum was refused on 21 October 1996. A notice of intention to deport the petitioner was issued on 20 March 1997. In terms of the provisions of section 8(3) of the Asylum and Immigration Appeals Act 1993, the petitioner has a right to appeal against that notice, on the ground that his removal from the United Kingdom, in pursuance of that notice, would be contrary to the United Kingdom's obligations under 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 Geneva Convention"). The petitioner appealed against the notice on 26 March 1997. After a hearing in Glasgow on 15 January 1999, before a Special Adjudicator the petitioner's appeal was refused. She did so in terms of a determination dated 18 January 1999 and promulgated on 29 January 1999. The petitioner subsequently applied to the Immigration Appeal Tribunal for leave to appeal against that determination. On 9 February 1999, the Immigration Appeal Tribunal refused his application for leave to appeal.

[2] In the present proceedings for judicial review, the petitioner seeks the reduction of the determinations of the Special Adjudicator and the Immigration Appeal Tribunal. Reduction is opposed by the Secretary of State for the Home Department, who appears as the respondent to the petition.

[3] In the petition, the petitioner avers that he was formerly married, but that he has been divorced since 1995. Between June 1978 and August 1991, he ran a bus company in Bangladesh, known as Sattar Transport. In 1980 he became Secretary of the Narayanjari Demra Meyna Bus Owners Association ("NDMBA"). In 1981 he joined the Jatio Party. He avers that between 1983 and 1990 opposition parties in Bangladesh frequently tried to ferment strikes, in order to disturb the economy. The petitioner opposed that activity. He avers that threats against him and other members of the NDMBA were reported to the police. In January 1990 the leader of the Jatio Party was arrested and the BNP party came to power in Bangladesh. The petitioner avers that subsequently he went into hiding. He avers that whilst he was in hiding his father was attacked by members of the BNP and that other members of his family were also threatened. He avers that he was advised to leave Bangladesh. He did so in August 1991, having first obtained, whilst he was still in Bangladesh, entrance clearance to permit him to visit the United Kingdom for a period of 6 months.

[4] In order to qualify for asylum under the Immigration Rules (HC 251,1990), the applicant must have the status of a refugee under article 1A(2) of the Geneva Convention. Article 1A(2) provides that the term "refugee" shall apply to any person who:

"Owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country;".

[5] Before me, the determination of the Special Adjudicator was challenged on two fronts. Taking them in the order in which they were argued, in the first place it was contended that the Special Adjudicator had erred as to the general approach she had adopted to determining the petitioner's appeal. It was submitted that rather than considering the whole appeal "in the round", as the relevant authorities indicate she should have done, the Special Adjudicator had chopped the petitioner's appeal into an analysis of different stages - both historical and evidential. By adopting the wrong general approach, she had erred in law and acted unreasonably. In the second place, it was argued, under reference to six separate headings, that in considering the evidence and information before her, the Special Adjudicator had materially erred, in her understanding of the evidence that was before her. It was argued that she had erred to such an extent that she had acted unreasonably in dealing with certain of the issues that arose in the appeal before her.

[6] As far as the determination of the Immigration Appeal Tribunal is concerned, that was challenged on the ground that the Tribunal had erred in law and acted unreasonably, in refusing the application for leave to appeal. It was submitted that the application for leave to appeal set forth "two and a half pages of detailed grounds of appeal raising serious and substantial criticism of the Special Adjudicator's determination". It was argued that no reasonable tribunal would have failed to recognise that material questions arose as to the correctness of the Special Adjudicator's determination. In any event, having regard to the grounds upon which the Special Adjudicator was open to challenge in the present proceedings, the Tribunal had erred in law and had acted unreasonably by refusing the application.

[7] Before me both parties were agreed that in the event that I was persuaded that the Special Adjudicator had erred in law or acted unreasonably, what I should do would be to order the reduction of the Immigration Appeal Tribunal's decision refusing leave to appeal. Counsel for the petitioner did not seek the return of the appeal to another Special Adjudicator. For her part, counsel for the respondent indicated that her instructions were that if the determination of the Special Adjudicator was open to successful challenge, then the determination of the Immigration Appeal Tribunal should not be supported.

The Special Adjudicator's general approach

[8] Towards the beginning of her written determination the Special Adjudicator set out a summary of the law, which she states she took into account, in reaching her decision to dismiss the petitioner's appeal. On page 4 of her determination, after referring to Article 1A(2) of the Geneva Convention, she continued:

"The onus is upon the Appellant to show that he is entitled to asylum. It is for him to satisfy me that owing to a well founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, he is outside the country of his nationality and is unable, or owing to such fear, is unwilling to avail himself of the protection of that country.

For the Appellant's fear to be well founded he must demonstrate a reasonable degree of likelihood of being persecuted for a convention reason if returned to his own country. He must show that he has a fear and that it is objectively justified. (Sivakumaran [1988] Imm AR 147).

In accordance with the decision in Kaja [1995] Imm AR 1, the standard of proof that I have just referred to is to be applied also when consideration is given to accounts of past events."

The Special Adjudicator then went on to make reference to certain other authorities, which are not relevant to the issues raised in the present proceedings.

[9] In the passage I have quoted from the Special Adjudicator's determination, she referred to R v Secretary of State for the Home Department, ex parte Sivakumeran (UN High Commissioner for Refugees intervening) [1988] AC 958, in which the House of Lords held that the issue as to whether an applicant had a "well-founded fear" of persecution, within the meaning of article 1A(2) of the Geneva Convention, he was to be determined objectively, in the light of the circumstances existing in the country of his nationality and that what an applicant had to demonstrate was a reasonable degree of likelihood that he would be persecuted for one of the reasons referred to in article 1A(2), if he were returned to that country (see Lord Keith of Kinkel at page 994 F-G and Lord Goff of Chievely at page 1000 F-G). Following Sivakumaran, special adjudicators encountered certain difficulties in deciding the standard of proof they should adopt in the appeals coming before them. For that reason, in Kaja v Secretary of State for the Home Department [1995] Imm AR 1, an Immigration Appeal Tribunal, constituted of senior legal members of the tribunal, was specially convened. Its objective was to provide guidance to special adjudicators and to other members of the Immigration Appeal Tribunal as to the correct approach to questions relating to the standard of proof to be adopted in asylum cases, in relation to the establishment of past and present facts, as opposed to the assessment of future chances.

[10] In the event, the members of the Immigration Appeal Tribunal in Kaja were unable to reach a unanimous decision. The Headnote in the report of the decision in [1995] Imm AR 1 is in the following terms:

"The application was a citizen of Zaire whose application for asylum had been refused by the Secretary of State. His appeal had been dismissed by a special adjudicator. The adjudicator had not found the appellant a credible witness: he had however not recorded the standard of proof he had applied.

That omission gave grounds for an appeal to the Tribunal, which heard the appeal with another case in which a similar issue was raised. The Tribunal considered the standard of proof applicable both to the assessment of the truth of accounts put forward of past events and to the evaluation of the likelihood of persecution in the future.

Held

By the majority: the lower standard of proof set out in Sivakumaran applied both to the assessment of accounts of past events and the likelihood of persecution in the future.

By the minority: the assessment of the truth of accounts of past events was to be made by applying the normal civil standard of the balance of probabilities: the test in Sivakumaran related only to the assessment of the likelihood of persecution in the future."

[11] Unfortunately that Headnote does not accurately record what the majority of the Tribunal decided. The position is explained by Brooke LJ in his judgment in Karankaran v Secretary of State for the Home Department [2000] 3 All E R 449, at pages 458 j - 459 j, :

"In Kaja v Secretary of State for the Home Dept [1995] Imm AR 1 the Immigration Appeal Tribunal was concerned to resolve difficulties that had been confronting adjudicators following the decision of the House of Lords in Ex p Sivakumaran. Although Mr Kaja's appeal had been dismissed in quite robust terms, the adjudicator did not explain what standard of proof he had applied. A panel of senior legal members of the tribunal was therefore specially convened in order that they could give guidance on the correct approach to questions connected with the standard of proof to be adopted in asylum cases in relation to the establishment of past and present facts, as opposed to the assessment of future chances.

The majority of the tribunal considered that the question they had to decide was whether the assessment of an asylum case was a two-stage process or a one-stage process. They considered that it was a one-stage process. The task of the decision-maker was to assess, to a reasonable degree of likelihood, whether the applicant's fear of persecution for a convention reason was well-founded. It might be that there were parts of the evidence which on any standard were to be believed or not to be believed. Of other parts, the best that might be said of them was that they were more likely than not. Of other parts it might be said that there was a doubt. The need to reach a decision on whether an appellant had made his case to a reasonable degree of likelihood arose only on the ultimate evaluation of the case, when all the evidence and the varying degrees of belief or disbelief were being assessed.

The majority considered that if there was a first stage (proof of present and past facts) followed by a second stage (assessment of risk) then any uncertainties in the evidence would be excluded at the second stage, and that this could not be right. In those circumstances, they considered that the introduction of an intervening stage was simply an unnecessary complexity. They took the view that the authority of Nolan J's decision in Ex p Jonah had been overtaken by the later decision of the House of Lords in Ex p Sivakumaran.

It is clear that the majority was influenced by the notorious difficulty many asylum seekers face in proving the facts on which their asylum plea is founded. In many of these cases, they said, the evidence will be the applicant's own story, supported in some instances by reports from organisations like Amnesty International. The stress generated by the nature of an asylum claim and the possible consequences of refusal, complemented by the highly formalistic atmosphere of interview or court, made the task of evaluating the evidence more complex. This did not mean that there should be a more ready acceptance of fact as established as more likely than not to have occurred. On the other hand, it created a more positive role for uncertainty. It would be a rare decision-taker who was never uncertain about some aspects of the evidence, particularly where, unlike civil litigation, evaluation was often concerned only with one version of the 'facts'. To say that it is only the facts established as more likely than not to have occurred on which the 'reasonable likelihood' must be based would be, they said, to remove much of the benefit of uncertainty conferred on an applicant through Ex p Sivakumaran.

It is important to understand clearly the true effect of the majority decision in Kaja's case. They did not decide, as is suggested in one headnote [1995] Imm AR 1 (at 1) that:

'.... the lower standard of proof set out in Sivakumaran applied both to the assessment of accounts of past events and the likelihood of persecution in the future.'

What they decided was that when assessing future risk decision-makers may have to take into account a whole bundle of disparate pieces of evidence: (1) evidence they are certain about; (2) evidence they think is probably true; (3) evidence to which they are willing to attach some credence, even if they could not go so far as to say it is probably true; (4) evidence to which they are not willing to attach any credence at all.

The effect of Kaja's case is that the decision-maker is not bound to exclude category (3) evidence as he/she would be if deciding issues that arise in civil litigation."

[12] In his judgment, Brooke LJ then turned to consider the correctness of the decision of the majority in Kaja. He reviewed a number of Australian authorities, before holding that the approach recommended by the majority in Kaja was correct (page 469 d-e). Later in his judgment, at page 469 g - 470 d, Brooke LJ continued:

"In the present public law context, where this country's compliance with an international convention is in issue, the decision-maker is, in my judgment, not constrained by the rules of evidence that have been adopted in civil litigation, and is bound to take into account all material considerations when making its assessment about the future.

This approach does not entail the decision-maker (whether the Secretary of State or an adjudicator or the Immigration Appeal Tribunal itself) purporting to find 'proved' facts whether past or present, about which it is not satisfied on the balance of probabilities. What it does mean, on the other hand, is that it must not exclude any matters from its consideration when it is assessing the future unless it feels that it can safely discard them because it has no real doubt that they did not in fact occur (or, indeed, that they are not occurring at present). Similarly, if an applicant contends that relevant matters did not happen, the decision-maker should not exclude the possibility that they did not happen (although believing that they probably did) unless it has no real doubt that they did in fact happen.

For the reasons much more fully explained in the Australian cases, when considering whether there is a serious possibility of persecution for a convention reason if an asylum-seeker is returned, it would be quite wrong to exclude matters totally from consideration in the balancing process simply because the decision-maker believes, on what may sometimes be somewhat fragile evidence, that they probably did not occur. Similarly, even if a decision-maker finds that there is no serious possibility of persecution for a convention reason in the part of the country to which the Secretary of State proposes to send an asylum-seeker, it must not exclude relevant matters from its consideration altogether when determining whether it would be unduly harsh to return the asylum seeker to that part, unless it considers that there is no serious possibility that those facts are as the asylum-seeker contends.

Needless to say, as the High Court of Australia observed in Wa Shan Ltang's case, when assessing the future, the decision-maker is entitled to place greater weight on one piece of information rather than another. It has to reach a well-rounded decision as to whether, in all the circumstances, there is a serious possibility of persecution for a convention reason, or whether it would indeed be unduly harsh to return the asylum-seeker to the allegedly 'safe' part of his/her country. This balancing exercise may necessarily involve giving greater weight to some considerations than to others, depending variously on the degree of confidence the decision-maker may have about them, or the seriousness of their effect on the asylum-seeker's welfare if they should, in the event, occur."

[13] In his judgment in Karankaran, Sedley LJ, whilst agreeing with the judgment of Brooke LJ, set out, at pages 479 b - 480 a, his own description of the process of determining an application for asylum :

"Testing a claim ordinarily involves no choice between two conflicting accounts but an evaluation of the intrinsic and extrinsic credibility, and ultimately the significance, of the applicant's case. It is conducted initially by a departmental officer and then, if challenged, by one or more tribunals which, though empowered by statute and bound to observe the principles of justice, are not courts of law. Their role is best regarded as an extension of the initial decision-making process: see Simon Brown LJ in R v Secretary of State for the Home Dept, ex p Ravichandran [1966] Imm AT 97 at 112. Such decision-makers, on classic principles of public law, are required to take everything material into account. Their sources of information will frequently go well beyond the testimony of the applicant and include in-country reports, expert testimony and - sometimes - specialised knowledge of their own (which must of course be disclosed). No probabilistic cut-off operates here: everything capable of having a bearing has to be given the weight, great or little, due to it. What the decision-makers ultimately make of the material is a matter for their own conscientious judgment, so long as the procedure by which they approach an entertain it is lawful and fair and provided their decision logically addresses the convention issues. Finally, and importantly, the convention issues from first to last are evaluative, not factual. The facts, so far as they can be established, are signposts on the road to a conclusion on the issues; they are not themselves conclusions. How far this process truly differs from civil or criminal litigation need not detain us now.

It would be pointless, for the rest, to traverse ground so well covered by Brooke LJ. It is however, worth observing (or at least hoping) that the approach which we consider to be the correct one, bodies out what Simon Brown LJ said in R v Secretary of State for the Home Dept, ex p Ravishandran [1996] Imm AR 97 at 109:

'In my judgment, the issue whether a person or group of people have a 'well-founded fear..... of being persecuted for [Convention] reasons'..... raises a single composite question. It is, as it seems to me, unhelpful and potentially misleading to try to reach separate conclusions as to whether certain conduct amounts to persecution, and as to what reasons underlie it. Rather, the question whether someone is at risk of persecution for a Convention reason should be looked at in the round and all the relevant circumstances brought into account. I know of no authority inconsistent with such an approach and, to my mind, it clearly accords both with paragraph 51 of the UNHCR Handbook and with the spirit of the Convention'.

While, for reasons considered earlier, it may well be necessary to approach the convention questions themselves in discrete order, how they are approached and evaluated should henceforward be regarded not as an assault course on which hurdles of varying heights are encountered by the asylum seeker with the decision-maker acting as umpire, nor as a forum in which the improbable is magically endowed with the status of certainty, but as a unitary process of evaluation of evidential material of many kinds and qualities against the convention's criteria of eligibility for asylum."

Robert Walker LJ agreed with the judgments of Brooke LJ and Sedley LJ.

[14] Returning to the determination of the Special Adjudicator in the present case, counsel for the petitioner argued that it was clear from her reference to Kaja and from a reading of the whole determination that she had treated the exercise upon which she was engaged as a multi-stage process. He argued that she had chopped up the petitioner's claim for asylum into an analysis of a number of different stages - some historical and some evidential - and that within those various stages she had examined individual factual issues and done so to determine whether certain events did or did not occur. Having reached views on certain of the evidence and information relevant to those individual factual issues, which were adverse to the petitioner, she had then given no further consideration to that evidence and information in her determination of the appeal. Heralding the submissions he made during the second chapter of his submissions, he argued that in relation to some of those issues the special adjudicator had come to decisions adverse to the petitioner's interests, having erred in dealing with the evidence before her to an extent that involved errors in law or an assessment of the available evidence in an unduly harsh and unreasonable manner. On the other hand, in respect of other factual matters that were in issue before her, the Special Adjudicator had reached no definite views. Examples of that were to be found on pages 6 and 7. Here again, the evidence and information relating to those issues did not appear to have been considered by her in any overall assessment of the petitioner's claim for asylum. Counsel for the petitioner argued that that the Special Adjudicator's determination read like a judgement or opinion in a civil litigation. Read as a whole, it gave no impression that the correct approach had been adopted in determining the appeal.

[15] Counsel for the petitioner argued that the erroneous approach the Special Adjudicator had followed, had probably arisen because she had followed what was set out in the headnote in Kaja. In any event, it was clear from her determination that at no stage had she looked at the petitioner's case "in the round". In particular, counsel for the petitioner argued that the first full paragraph on page 15 of the determination was not the exercise that required to carried out, in light of the decision of the Court of Appeal in Karanakaran.

[16] In reply to these submissions, counsel for the Home Secretary accepted that the headnote in Kaja was wrong and did not accurately reflect what the majority of the Immigration Appeal Tribunal had decided. She argued, however, that if the Special Adjudicator had followed the terms of the headnote in Kaja, she would have adopted a more liberal approach to the assessment of the evidence before her, than was required of her. In any event, it was clear from the terms of the determination that the Special Adjudicator had in fact carried out an exercise of the nature that Karanakaran requires.

[17] In advancing those submissions, counsel for the Home Secretary focused particular attention on the last two paragraphs of the first excerpt I have quoted from pages 458 and 459 of the judgment of Brooke LJ. She stressed that evidence which falls within category (4), namely evidence to which the decision-maker is not willing to attach any credence at all, could be excluded from the overall assessment of a claim for asylum, which Karankaran required. That was entirely consistent with what had been said by the majority in Kaja (at page 8) and with the views of all members of the court in Karankaran. Accordingly, whilst decision-makers cannot exclude evidence that falls within category (3), evidence to which they are willing to attach some credence, even if they could not go so far as to say that the evidence is probably true, they are entitled to reject evidence that falls into category (4). In advancing those submissions, counsel for the Home Secretary recognised the importance of a decision- maker determining whether evidence and information before her falls within category (3) as opposed to category (4).

[18] Counsel for the Home Secretary also drew attention to other passages in the judgement of Brooke LJ, including his approval of the six principles formulated by Sackville J, in the Australian case of Minister of Immigration and Multicultural Affairs v Rajalingam [1999] FCA 719. These principles are set out on pages 468-9 of Brooke LJ's judgement. Counsel founded in particular on the sixth principle:

"If a fair reading of the decision-maker's reasons as a whole shows that it had 'no real doubt' that claimed events did not occur, then there is no warrant for holding that it should have considered the possibility that its findings were wrong.'

Approval of that particular principle was reflected in the passage at pages 469g - 470d in Brooke LJ's judgment, which I have quoted previously. In passing, I should record that at a By-Order Hearing which took place, after I had taken the case to avizandum, both counsel confirmed that the further hearing ordered by the First Division in its Opinion of 12 July 2000, in the appeal of Jasvir Singh against a Final Determination by the Immigration Appeal Tribunal, need not delay the issue of this Opinion. In Jasvir Singh, the First Division is to hear further argument on the judgments in Karankaran in relation to the question of onus that arises in that case.

[19] Counsel for the Home Secretary argued that from a reading of the Special Adjudicator's determination, and in particular what she says at page 15 of that determination, it is clear that the Special Adjudicator had no real doubts about the essential elements of the petitioner's claim for asylum. Counsel pointed out that the Special Adjudicator had not believed the petitioner's evidence of the role of the police in the persecution he claimed had taken place, prior to his leaving Bangladesh. She had not believed what she described as the petitioner's "varied accounts of harassment and persecution". She had not believed that the petitioner left Bangladesh in fear of his life, as he had claimed. Her reasoning on that last matter, on pages 11 and 12 of the determination, had not been criticised. She had found no objective reasons why the petitioner should fear a return to Bangladesh, whether as a consequence of his membership of the Jatio Party or because he would not receive reasonable protection from the police, in the event of any action against him by the Awami League ("AL") or the BNP. She had found no reason in the evidence to suppose that upon the petitioner's return to Bangladesh, he would be subject to persecution, for a convention reason, from the AL or the BNP. She had disbelieved the petitioner's reasons for his delay in seeking asylum and considered such delay as being inconsistent with a genuine desire for sanctuary in the United Kingdom. Again her reasoning for those findings had not been challenged. To the extent that the Special Adjudicator had relied on her finding that two letters produced for the hearing and relied upon by the petitioner were false, the Special Adjudicator was entitled to do so by Rules 340 and 341.

[20] Counsel for the Home Secretary argued that the Special Adjudicator was entitled to set aside all the evidence before her about claimed persecution. This was a case in which the claim for asylum was based on what had happened in the past. The petitioner's claims that what has happened in the past makes him a target. His fears for the future are based on what he claims has happened in the past. Counsel for the Home Secretary submitted that put shortly the Special Adjudicator did not believe the petitioner's story as to what had happened in the past. That being so, there was no evidential basis before her upon which the Special Adjudicator could have found that the petitioner had a well-founded fear of persecution in the future.

[21] In my opinion there is force in this first branch of the submissions advanced on behalf of the petitioner. Upon reading the Special Adjudicator's determination, it is in my opinion clear that she adopted a multi-stage approach to the appeal before her. In my opinion that is clear from her reference to Kaja, at the top of page 5 of her determination, and more particularly to the structure of her determination, which addresses different factual issues, under separate headings, before turning on page 15 to the Special Adjudicator's assessment of whether the petitioner had discharged the onus on him. Whether or not the Special Adjudicator was misled by the erroneous headnote in Kaja, it may be difficult to be sure. It also must be recognised that Karankaran was decided by the Court of Appeal one year after the Special Adjudicator reached her determination. Nevertheless, it is clear from a reading of the determination of the majority in Kaja that they reject a two stage approach, which involves reaching a determination as to occurrence of past events (or as to the present situation), before turning to assess the likelihood of persecution for a convention reason in the future in the light of that determination. As the majority put it, at page 8 of the report of Kaja, :

"To adopt the two stage test is to make a serious inroad into the focus on the risk or reasonable degree of likelihood which lies at the heart of Sivakumaran. As we were reminded at the hearing and as is well established the 'proof' of facts on which an asylum plea is founded is notoriously difficult. In many cases the evidence will be the applicant's own story supported in some instances by reports of various organisations such as Amnesty International. There is therefore the probability of a greater than normal uncertainty as to the establishment of historic facts. While the duty of the adjudicator and the Secretary of State is to evaluate the evidence, that evaluation must be undertaken bearing in mind the stress generated by the nature of the claim and possible consequences if refused, including the highly formalistic atmosphere of interview or court. This does not mean that there should be more ready acceptance of fact as established as more likely than not to have occurred, but a more positive role for uncertainty.

It will be the rare decision taker who in any case (asylum or not) is never uncertain about some aspects of evidence, particularly where, unlike civil litigation, evaluation is often solely of one version of the 'facts'. It is the uncertainty of what will happen to the applicant that is the rationale of Sivakumaran. Adopting a two stage process in an asylum matter means, if anything, the removing from consideration of any 'factor' about which there is uncertainty as to its existence.

The applicability of the 'reasonable degree of likelihood' approach to the whole recognises that an assessment of future likelihood cannot sensibly be separated from an assessment of the past and present. So, for example, the question raised in this case of whether an application for asylum is a ground of asylum can only be answered by an assessment of the circumstances of unsuccessful and returned asylum seekers. To say that it is only the facts established as more likely than not to have occurred on which the 'reasonable likelihood' must be based is to remove much of the benefit of uncertainty conferred on the applicant through Sivakumaran."

[22] Examining the terms of the determination in greater detail, it is apparent that in respect of certain factual issues the Special Adjudicator states she was unable to make any findings. Examples of that are to be found at pages 6 and 7, in passages where the Special Adjudicator deals with the evidence she heard as to the petitioner's troubles with the Awami League and the BNP and the involvement of the police in those troubles. Having expressed those views, there is no subsequent indication in her determination that the Special Adjudicator gave any further consideration to the evidence she has summarised on pages 5, 6 and 7. Furthermore, it has to be noted that the Special Adjudicator's explicit statements, that she was unable to make any findings in fact in relation to the factual issues she was addressing on those pages of her determination, are not easy to reconcile with the terms of the first full paragraph on page 15. In that paragraph she omits any reference to the evidence the petitioner had provided about troubles instigated by the Awami League and the BNP. She also states that she did not believe the petitioner's evidence as to the role the police played, in his claimed persecution prior to his departure from Bangladesh. As was made clear in the Opinion of the Court in Pinytek v Secretary of State for the Home Department 2000 SC 158, at page 167 E-F, a special adjudicator must reach a clear view on the credibility of the applicant, which is unambiguous and based on reasons, which an appeal court can test. That, of course, does not mean that a special adjudicator must either accept as entirely credible or reject as completely incredible the evidence an applicant has provided, whether at earlier stages of the application process or during the hearing before the special adjudicator himself. Such a requirement would ignore the authorities of Kaja and Karankaran. What, however, a special adjudicator cannot do, however, is to reject or doubt an applicant's credibility (and as a consequence ignore evidence given by an applicant) without stating reasons for doing so or by providing reasons that are confused and unclear.

[23] In relation to other factual issues, the Special Adjudicator indicated that she disbelieved the petitioner's evidence or that she held certain parts of the documentary evidence, tendered by petitioner, to be false. Nowhere in her determination, however, is there to be found any consideration of the factor of "uncertainty", referred to by the majority in Kaja and by Brooke LJ in Karankaran. Likewise there is no indication that the Special Adjudicator ever gave any consideration as to whether she should assess any of the evidence before her as falling within category (3), of the four categories defined by Brooke LJ, in Karankaran (at page 459j). There appears to have been no attempt on the part of the Special Adjudicator to consider whether any evidence or information placed before her, on behalf of the petitioner, was worthy of some credence, even if she was not prepared to hold that it was probably true or that it established what the petitioner contended. When, in the second full paragraph on page 15, the Special Adjudicator states that she finds that the petitioner has failed to discharge the onus upon him, of showing to the requisite standard that he is outside Bangladesh owing to a well founded fear of persecution for a Convention reason, no indication is given as to whether, in reaching that view, the Special Adjudicator gave any consideration to the possibility that past events, which the petitioner alleged had taken place, might have occurred. It might have been expected that, at that point in the determination, the Special Administrator would have addressed two questions: Firstly, whether there is no real doubt that the claimed harassment and persecution had not taken place; and, Secondly, whether there is no serious possibility of the petitioner suffering persecution, for a Convention reason, were he to be to returned to Bangladesh. Bearing all those factors in mind, I am not persuaded that, at any point in her determination, including page 15, the Special Adjudicator examined the petitioner's claim for asylum "in the round" - as the authorities indicate that she ought to have done. That constituted an error of law on the part of the Special Adjudicator. Accordingly, I am persuaded that there are grounds for reducing the Special Adjudicator's determination.

Special Adjudicator's approach to specific factual issues

[24] Standing the views I have reached on the first branch of the petitioner's case, it is not strictly necessary for me to deal with the second branch, which addressed, under six separate headings, how the Special Adjudicator dealt with the evidence before her. However, out of deference to the submissions I received, I intend to comment briefly on the issues raised. All of them are foreshadowed by the petitioner's averments in Article 6 of the petition. I deal with them under the headings used in that Article. Before turning to the individual headings, however, I should indicate that I am conscious of the limited role of this Court in adjudicating upon, let alone interfering with, a special adjudicator's assessment of questions of fact. In that regard, I was referred by counsel for the Home Secretary to Singh v Secretary of State for the Home Department 2000 SC 288, at page 293 F, where Lord Reed drew attention to observations of Sir Thomas Bingham MR (as he then was) in Sahota v Immigration Appeal Tribunal [1995] Imm AR 500, at page 506: " The present field is one in which it is tempting for the court to stray into taking its own view of the facts. That is a temptation that the court must resist. A court's function is limited to a review of the challenged decision on one or more of the familiar grounds.".

The Appellant's Troubles in Bangladesh

[25] Under this heading, counsel for the petitioner founded on the failure of the Special Adjudicator to reach any view, on the evidence before her, about the troubles the petitioner claims he experienced, at the hands of the Awami League and the BNP. The Special Adjudicator deals with this issue on pages 5-6 of her determination. Under reference to certain of the documentation before the Special Adjudicator, including the SCQ and the Asylum Interview Record, counsel for the petitioner argued that the Special Adjudicator had been unduly harsh in her consideration of the evidence before her, when she identified variations and inconsistencies in the evidence and information before her and when she held that such inconsistencies prevented her from coming to any view, on what, it was submitted, was an essential cornerstone of the petitioner's case for asylum. Those submissions were supported by reference to "The Law of Refugee Status" by Professor James C. Hathaway, at pages 85-87, where the author stresses that a reasonable margin of appreciation should be applied to any perceived flaws in the testimony of a claimant for asylum. A claimant's incredibility should not be assumed, simply because of vagueness or inconsistencies in recounting peripheral details, since memory failures are experienced by many persons who have been the objects of persecution.

[26] Counsel for the petitioner argued that whilst there were some differences, in detail, between the accounts that the petitioner had provided in the SCQ, during the Asylum Interview and in evidence before the Special Adjudicator, the essential essence of the petitioner's case, as to persecution and harassment, had remained the same. That essential essence of the petitioner's case was important. Even if the Special Adjudicator had reached the view that it was not proved that the alleged events had taken place, the evidence of the petitioner, in respect of those alleged events, should not have been ignored when the petitioner's application for asylum was considered "in the round".

[27] In response, counsel for the Home Secretary argued that it was a matter for the Special Adjudicator to decide whether there had been differences in, or inconsistencies between, the accounts of events that the petitioner had provided at the various stages of his application for asylum. Indeed it was accepted on behalf of the petitioner that there had been differences in detail. It was also clear, from the documentation available, that there had been some changes in the dates on which particular events were alleged to have occurred. She submitted that the question whether these amounted to inconsistencies involved an assessment of the evidence, which was a matter entirely within the province of the Special Adjudicator. There was no flaw in the reasoning the Special Adjudicator had provided for reaching the views she had, as to the presence and consequences of inconsistencies. In the circumstances, it was not open to the Court to hold that the Special Adjudicator had acted unreasonably.

[28] I am not persuaded that there is any substance in the petitioner's arguments under this head. Once it is conceded, as it was, that there were differences in detail, between the accounts of events that the petitioner had provided as different stages of his application for asylum, it was a matter for the Special Adjudicator to decide whether the differences were of significance or not. It was for her to decide whether or not those differences constituted inconsistencies and, if so, what bearing, if any, such inconsistencies should have on her assessment of the case being put forward by the petitioner. Likewise, it was for her to decide whether she made positive findings in fact as to the events the petitioners claimed had taken place. In expressing those opinions, I do not, of course, seek to qualify or depart from the views I have already expressed, when dealing with the first branch of the petitioner's arguments. On the contrary, the whole approach to asylum cases, discussed in the authorities to which I have referred, admits the possibility of the decision maker declining to make positive findings, one way or another, on individual factual issues mentioned in the evidence and information before him. In that regard, I refer in particular to the views of Sedley LJ, in Karanakaran, where he talks about the convention issues being evaluative, not factual, and the facts, so far as they can be established, being signposts to a conclusion on the issues, not the conclusions themselves (at page 479e).

Involvement of the Police

[29] Very similar considerations apply to the arguments raised under this heading. When dealing with the evidence given by the petitioner in relation to the involvement of the police in his troubles with the Awami League and the BNP, the Special Adjudicator stated that the petitioner's "accounts, whilst not necessarily inconsistent inter se, became more elaborate". Counsel for the petitioner argued that having regard to the terms of the SCQ form and the fact that it is always open to an applicant for asylum to provide additional evidence during a hearing before a special adjudicator, it was unreasonable of the Special Adjudicator to reach the views she expressed on pages 6-7 of her determination. In particular it was unreasonable for her to reach the view that she was unable to make findings in fact, on account of the quality of the evidence

[30] In response, counsel for the Home Secretary submitted that whilst it was open to an applicant to elaborate on his case during a hearing before a special adjudicator, whether by giving a fuller account himself or tendering further documents, that was not the purpose, and certainly not the main purpose, of such a hearing. If, during a hearing before a special adjudicator, an applicant for asylum elaborates upon the case he has previously put forward, the special adjudicator is perfectly entitled to take account of any such elaboration and, if appropriate, hold it against the applicant. To the extent that the Special Adjudicator did so in the present case, in reaching the views she expressed at pages 6-7 of her determination, she was entitled to do so. Once again, these were matters that fell within her province of assessing the evidence and the other information before.

[31] I agree with the submissions made by counsel for the Home Secretary. In my opinion, it was open to the Special Adjudicator to take the view that the petitioner had elaborated on his allegations as to the involvement of the police in his troubles with the Awami League and the BNP. Likewise, she was entitled to take account of such elaboration in her assessment of the petitioner's case. In doing so, no error of law on her part arose. Nor did she act unreasonably.

The Appellant's Wife and Children

[32] Under this heading, counsel for the petitioner criticised the Special Adjudicator for having no proper basis for treating as unreliable the petitioner's evidence as to persecution of his wife. Part of his complaint was that the Special Adjudicator appeared to have misunderstood and misconstrued what the petitioner had meant by his use of the word "torture". It was pointed out that, during re-examination at the hearing, the petitioner had explained that when he used the word "torture", he was referring to the actions of police officers, in visiting the petitioner's home, hitting his children, threatening his wife, destroying articles in his house and threatening to take family members into custody. The word "torture" had not been intended to have any more sinister meaning. Counsel argued that it was unclear from pages 8-9 of the determination, whether the Special Adjudicator was using the word "torture" in a different way from that the petitioner had done. If she had, that undermined her assessment of this chapter of the evidence and also impacted on her overall assessment of the whole case. Furthermore, this was another example of how, in her assessment of the evidence, the Special Adjudicator had been unduly harsh, in identifying inconsistencies in the accounts the petitioner had provided and drawing adverse inferences from such inconsistencies.

[33] In reply, counsel for the Home Secretary pointed out that this was another area in which the petitioner had provided differing accounts, as the petitioner's application for asylum had moved from the SCQ stage, through the Asylum Interview, to the hearing before the Special Adjudicator. She argued that it was clear, from a comparison of the SCQ, the record of the Asylum Interview and the notes taken by the Special Adjudicator, that the Special Adjudicator was entitled to reach the view that there had been material inconsistencies between the various accounts provided by the petitioner. Counsel submitted that the Special Adjudicator was entitled to apply common-sense in assessing this chapter of the evidence before her. It could not be said that she had acted unreasonably, in reaching the views she set out on pages 8-9 of her determination.

[34] Having carefully considered that part of her determination, where the Special Adjudicator deals with the petitioner's wife, I am left with the clear impression that the Special Adjudicator's use of the word "torture" involves according that word a different meaning from that intended, and explained by the petitioner, during the course of his evidence before her. In my opinion, the Special Adjudicator's use of the word "torture" is apt to cover something more than persecution, by reason of the police calling at the petitioner's home, threatening his wife, damaging items of property and threatening to take her into custody. In my opinion, that is apparent from the last sentence in the first paragraph on page 9, which is in these terms : "Had his family been persecuted as he claimed and his wife tortured, I would have expected the Appellant to at least have made some attempt to obtain visas for them as he did for himself.". That sentence suggests that the Special Adjudicator is drawing a distinction between persecution and torture.

[35] In these circumstances, it appears probable that the Special Adjudicator proceeded on the basis that the petitioner was using the word "torture" in a different and much more sinister sense, than he actually was. Having regard to the fact that the petitioner explained his use of the word in re-examination, I see no rational basis for the Special Adjudicator to have proceeded in the way she did. None was suggested to me. In my opinion, accordingly, the Special Adjudicator failed to assess the petitioner's evidence with the appropriate care and sensitivity that are required when dealing with asylum applications. The petitioner's allegations that his wife and children have been persecuted constitute an important part of the petitioner's claim for asylum. The special adjudicator's rejection of those allegations was founded on an irrational misunderstanding of an important piece of evidence given by the petitioner. In such circumstances, her findings on fact on this part of the claim took account of an irrelevant consideration.

The Appellant's Son

[36] Under this heading, it is argued that the Special Adjudicator acted unreasonably in reaching the views she did as to the validity and construction of a letter from the Principal of Summer Hill School, Kurseong, Darjeeling, dated 10.2.98, relating to the petitioner's son, Sattar Mohammed Asif. On headed note-paper, the letter states that the son has been admitted in the school into Class V. It asks that all "necessary permission and visas" be issued to him. Comparing that letter, with the child's residential permit to remain in India, the Special Adjudicator notes from the permit that the child's passport is dated 1 March 1998 and his visa to enter India is dated 14 March 1998. She observes on page 11 of her determination that "there was no explanation as to how a national of Bangladesh could be admitted to a school in India at a time when he had no residential permit to live in India".

[37] Counsel for the petitioner argued that it was clear the Special Adjudicator had misconstrued the letter from the School. She had proceeded on the basis that it meant that the child had physically arrived at the school by 10 February 1998. On the contrary, it is clear that it ought to have been construed as having been issued before the child was due to start as a pupil at the school. That was borne out by the fact that it requested that "necessary permission and visas" be issued to the child. Construed on that basis, the letter from the school was entirely consistent with the contents of the residential permit. The construction that the Special Adjudicator had placed on the letter was unreasonable. It had contributed to the Special Adjudicator doubting the validity of the letter. More importantly, the Special Adjudicator's doubts as to the validity of the school letter may have been relied on by her, in rejecting as incredible a letter from the petitioner's ex- wife (as she had become in 1995), upon which the petitioner had also sought to rely during the hearing.

[38] In response, counsel for the Home Secretary invited me to consider the whole of the section of the determination, between pages 9 and 10, at the end of which the school letter is mentioned. She submitted that if there had been no harassment of the petitioner's son, before he left Bangladesh, this section and the reference to the school letter, were of less relevance. She submitted that it was not clear that the Special Adjudicator had relied on her assessment of the school letter, in reaching her decision to reject the letter from the petitioner's former wife as accurately recording the situation relating to the petitioner's former wife and the petitioner's children.

[39] In my opinion, it is clear that the Special Adjudicator has misconstrued the school letter. There is no necessary inconsistency between its terms and those of the Residential Permit, to which the Special Adjudicator refers at page 10 of the determination. Indeed it would be unreasonable to take the view that any such inconsistency exists. No explanation was therefore required as to how a national of Bangladesh could be admitted to a school in India at a time when he had no residential permit to live in India.

[40] From page 10 of the determination, it is not at all clear to what extent the Special Adjudicator may have been influenced by her erroneous view, that an explanation was required to reconcile the school letter and the Residential Permit. Nevertheless, on pages 9-10 of the determination, the Special Adjudicator deals at some length with the position of the appellant's son. Moreover she describes the school letter as being "allegedly from the Principal of Summer Hill School" and the residential permit as "allegedly relating to the Appellant's son". In these circumstances, she may well have treated the two documents as bogus, in part because of what she perceived to be an inconsistency between them. For these reasons, I do not consider that it is possible to be confident that the Special Adjudicator's comments about the school letter and the Residential Permit were entirely immaterial to the views she expresses about the situation regarding the petitioner's son. As I have already indicated, the petitioner's claim that his wife and children have been persecuted is an important part of the petitioner's claim for asylum. It follows, therefore, that this is a further example of where the Special Adjudicator's irrational misunderstanding of the evidence has had an effect on the decision she reached.

The Lawyer's Letters

[41] Under this heading, counsel for the petitioner criticised the manner in which the Special Adjudicator had dealt with two lawyer's letters dated 11/8/98. Both letters bear to have been sent by the same lawyer. The first letter states that the lawyer has been appointed by the petitioner's mother (sic). The second letter states that the lawyer has been appointed by the petitioner's wife. Having reviewed the contents of, and the language used in, these letters, in the light of the evidence and other information before her, the Special Adjudicator reached the view that neither of the letters is genuine.

[42] Counsel for the petitioner's complaint was based on how the Special Adjudicator had dealt with a paragraph in the second of these letters. The paragraph was in these terms:

"According to my knowledge, Mohammed Nazim Uddin's name has been included in a list prepared for the opposition's political activities. At present the government is arresting all the people who were involved in the opposition party's political activities and they are being sentenced under special powers of law."

[43] At page 11 of her determination, the Special Adjudicator dealt with that passage in the following terms:

"Given the US State Dept's description of the legal system in Bangladesh (to which I refer later) I consider it extremely unlikely that the government, rather than the police are arresting government opponents, or that the judicial system is joining in such an operation by sentencing the government's opponents under special laws. I do not consider it credible that a lawyer, and therefore part of such a judicial system, would write such a letter which does not contain legally coherent information."

[44] Counsel for the petitioner submitted that in that passage the Special Adjudicator had completely left out of account the views of the United States State Department and the Home Office as to the conduct of the Bangladesh Government, which were before her in reports lodged as productions. The US State Department Reports for 1996 and 1997 narrate that the police commit extra-judicial killings. The police routinely use torture and other forms of abuse in interrogating suspects. The Government rarely convicts and punishes those responsible for torture or unlawful deaths. The Government continues to use national security laws to detain political opponents and other citizens without formal charge. The Home Office Bangladesh Country Assessment, dated February 1998, is in similar terms. In particular paragraph 6.17 and 6.18 of that document state:

"6.17 The Home Affairs Ministry controls the police and paramilitary forces, which bear primary responsibility for maintaining internal security.

6.18 Both the BNP and the AL Governments use national security laws to detain political opponents and other citizens without formal charge or specific complaint. Notably, the Special Powers Act (SPA) of 1974 is used, under which the government or a district magistrate may, to prevent the commission of an act likely to "prejudice the security of the country", order anyone detained for 30 days."

[45] In response, counsel for the Home Secretary pointed out that both letters post-dated the petitioner's exit from Bangladesh. She argued that the Special Adjudicator was entitled to look at the letters in the context of the evidence she had heard and to reach a view as to their authenticity. In the event, she had decided that they were not genuine. What she made of the United States State Department and Home Office Reports was for her. They were only relevant if the Special Adjudicator could tie them in with the case before her. Reading the letters as a whole, it could not be said that the Special Adjudicator had acted unreasonably in reaching the view that the two letters were not genuine.

[46] In my opinion, by apparently failing to take any account of the passages in the United States State Department and Home Office reports, to which I have referred, the Special Adjudicator erred. The contents of those passages were clearly relevant and material to the factual issue she was considering. Whilst the assessment of the contents of the two reports was for her, what it was not open to her to do was to leave completely out of account passages in the reports that were relevant and material to the issue before her. In my opinion, she acted unreasonably in holding that the letters were not genuine, apparently without having has any regard to the passages founded upon by the petitioner. Putting it another way, in reaching her views, as to a central aspect of the applicant's claim for asylum, she left out of account a material consideration.

Returning to Bangladesh

[47] Under this final heading, counsel for the petitioner criticised the manner in which the Special Adjudicator had dealt with the petitioner's concerns as to whether he would receive a fair trial on any criminal charges he might face if he returns to Bangladesh. This is an issue that the Special Adjudicator dealt with on pages 14-15 of the determination. Counsel acknowledged that on this issue, the Special Adjudicator had considered the relevant passages in the United States State Department and Home Office Reports. He argued, however, that considering all the documentary material before her, it was unreasonable for the Special Adjudicator to hold that the petitioner's concerns about receiving a fair trial lacked credibility.

[48] Counsel for the Home Secretary argued that on the basis of the evidence that was before her on this issue, the Special Adjudicator's approach could not be said to be unreasonable. It was, in particular, important to bear in mind that the "charges", which the petitioner claims he faces, are serious charges, which would be dealt with in the higher courts. In both countries' reports, the higher courts are reported on in reasonably favourable terms.

[49] As I have already indicated, the assessment of the evidence was a matter for the Special Adjudicator. Under this heading, there is no suggestion that the Special Adjudicator left relevant information out of account. In my opinion, it cannot be said that the view that she reached was unreasonable, in the sense that it was one that no special adjudicator could have reached.

Conclusion

[50] If follows from the views I have reached, that I consider that the determination of the Special Adjudicator is susceptible of being reduced. Counsel for the Home Secretary made clear that if I reached that view, her instructions were not to seek to defend the decision of the Immigration Appeal Tribunal, refusing leave to appeal. Accordingly, I shall sustain the petitioner's second plea in law and reduce the determination of the Immigration Appeal Tribunal dated 9 February 1999.