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Cite as: [2001] ScotCS 133, 2001 SCLR 776

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OUTER HOUSE, COURT OF SESSION

OPINION OF LADY PATON

in the petition of

GURJIT SINGH

Petitioner;

for

Judicial Review of a determination of (i) a special adjudicator and (ii) the Immigration Appeal Tribunal

________________

Petitioner: R. D. Sutherland, Advocate; Lindsays (for Gray & Co, Solicitors, Glasgow) W.S.

Respondent: A. J. Carmichael, Advocate; Advocate General's Office

30 May 2001

Application for asylum

[1] The petitioner was born on 6 January 1975. He is an Indian national. On 11 September 1995 he entered the United Kingdom as an illegal immigrant. On 13 September 1995 he applied for asylum. In support of his application, he provided a written statement and a translation, recorded in the fifth paragraph of the special adjudicator's determination number 6/1 of process as follows:

"I am a resident of Mehrinpur. Harnek Singh was my uncle. I had one brother and a sister. In my family I am the eldest son of my parents. Harnek Singh alias Neka had connections with a Khalistani party. The police started coming to our house because of his connection with the party. After some time he left his house. He was killed after three/four years. Then the police took my father with them. On [a] couple of times my father was beaten by the police. Our village council has managed to secure my father's release. As my father was elderly and he was not staying well; therefore the police started harassing me instead. The police from Nakodar police station came and took me to the police station. I was detained for 25 days. The police only released me after taking rupees 20,000 as a bribe.

After one month from my release the police again arrested me. This time again I managed to secure my release but only [by] bribing the police to the tune of rupees 25,000. After my release I left my house, because of this continuous police harassment. Then I stayed with relatives for about two years and then I came to Delhi."

[2] On 7 February 1996 the petitioner was interviewed, speaking in Punjabi, and assisted by an interpreter. At interview, the petitioner provided documents in support of his application, namely:

A copy of his educational qualifications.
A newspaper report about the death of his uncle during a confrontation with the police.
An affidavit by his mother about the uncle and about police harassment of the petitioner.
A copy of entries in a savings account passbook.

[3] The record of the interview, contained in number 6/3 of process, notes inter alia the following questions and answers: "11. Any problems leaving India? No. 12. Where and when was passport issued? Don't know. I think February 1994. Issued in Nakodar district Jalandhar ... 14. Member/supporter of which pol. party? Not a member or supporter. My uncle was. 15. Were you politically active in any way? No. 16. How did your uncle's involvement affect you? Police started to harass my father and me because of the death of my uncle on 25.3.89. 17. In what way were the police harassing you? Because my uncle used to reside in the same house, after uncle died people from Khalistani Party started coming to us. So therefore the police wanted information about people from the Khalistani Party. 18. Any problems before your uncle died? No. I was quite young then. 19. So why do you think that the police wanted to harass you after your uncle's death? So whenever new police officers used to take charge in the area, they used to look at the old files and records and come to us for more information. 20. Was your father a member of any pol. party? No. 21. So why did the police want to question you & your father as you were not politically involved in any way? Because my uncle had the connection & had a police record, so police were assuming that we had a connection with the Khalistan Party. 22. How many times did police come? They came 3 or 4 times but they arrested me twice. 23. When was this? The police started coming in 1989. 24. How long did police visits go on for? From 1989-1992. 25. Was this 3 or 4 times between '89-'92? 3-4 times they came for me not my father. 26. How did you know? They used to tell my mother that they wanted to arrest me. 27. So these 3-4 times was your father home? My father wasn't at home. 28. What were you doing when at home? I was at home only 2 times and they arrested me on both occasions. 29. When exactly? First time 10.11.93 and second time 10.1.93. (after explanation the applicant amended to 10.1.94). Sorry the second time was 15.1.94 ... 40. Why do you think you were arrested again so soon? Police were sure that we had connections with the party ... 43. You said that your problems were between '89-'92. Why have you now got a claim to asylum. The last time they released me the police told me that if we catch you again we will kill you & show it as a police encounter ... 50. How did you manage to obtain your passport during 1994? I applied while I was living with my parents. 51. When was this? In 1994. 52. But you left in Jan. '94 to go to grandparents? That's when I applied in Jan. '94. 53. When I asked you earlier, when your passport was issued, you couldn't tell me. Explain? I don't know. 54. So you said you obtained your passport in 1994, why not leave India earlier? I applied for my passport in 1994 but I didn't get it until 1995. 55. Why did it take one year to obtain? I don't know. 56. Okay, so when in 1995 did you get passport? I'm not sure, it was in April or May '95 ... 63. Have you ever been charged? Yes, helping the Khalistan Party. 64. When? First time they arrested me. 65. Did you go to court? No, I didn't receive any papers. 66. Any other charges? No ... 69. Any other problems not mentioned? Police used to beat me a lot and torture me. 70. When? On both occasions when arrested ..."

Refusal of application for asylum

[4] On 14 March 1996 the petitioner's application for asylum was refused. The terms of the letter of refusal dated 14 March 1996 are set out in full in the determination number 6/1 of process. The letter noted that the petitioner claimed a well-founded fear of persecution in India on the grounds that he had suffered harassment due to his uncle's membership of the Khalistan party, but then set out reasons why the Secretary of State had concluded that the petitioner did not qualify for asylum. The letter advised inter alia:

"The Secretary of State took into consideration the documents produced in support of your application and in doing so he noted that your uncle was allegedly an active member of the Khalistan Commander Force (KCF) and not the Khalistan Party as stated at interview. The Secretary of State would add that the KCF is a well known terrorist group responsible for many acts of violence and the Secretary of State considers that the police would have a legitimate interest in pursuing lawful enquiries in their efforts to control this violence."

A Notice of Removal dated 20 March 1996 (contained in number 6/3 of process) was served on the petitioner.

Appeal to the special adjudicator

[5] The petitioner appealed. His grounds of appeal are recorded in the determination number 6/1 of process as follows:

The Secretary of State has failed to consider all relevant factors of this application.
The applicant maintains he has a well-founded fear of persecution if he returns to India.
The recent assassination of the Chief Minister of Punjab has created unrest in the Punjab once again.
The applicant wished to adduce further evidence in support of his application.
Further and fuller grounds of this appeal will be submitted in due course.

In fact no further grounds of appeal were submitted.

[6] On 22 May 1997, a hearing before a special adjudicator took place. The petitioner in paragraph 6 of the petition for judicial review avers that he was ill and unable to attend. No representative attended on his behalf. The special adjudicator noted in the fourth paragraph of his determination number 6/1 of process:

" ... when this matter came before me today, 22 May 1997, neither the appellant nor anyone on his behalf attended the hearing. There had been no further communication from either the appellant or his advisers. Therefore I propose to determine this appeal, on the information and papers available, pursuant to the Asylum Appeals (Procedure) Rules 1996. Ms A Hucker, the Home Office presenting officer, had no objection to this course of action, and had no wish to address me. There were no representations by or on behalf of the United Nations High Commissioner for Refugees."

Determination of the special adjudicator

[7] In his determination number 6/1 of process issued on 26 June 1997, having noted the Secretary of State's refusal to grant asylum, the petitioner's failure to attend, the absence of a medical certificate for the petitioner, the petitioner's immigration history, authorities such as Sivakumaran [1988] Imm AR 147, the petitioner's uncle's involvement in the Khalistan Commander Force (described by the special adjudicator as an illegal terrorist organisation), a brief outline of the unwilling involvement of some Sikhs forced to provide terrorists with food, shelter, clothing and money, and finally having noted the fact that "over the last few years, the security forces have made dramatic incursions into the Punjab, and have subdued most of the area, and the activities of the terrorists have been curtailed, although not prevented altogether", the special adjudicator continued at the foot of page 7:

"I do not want to convey the impression that all the ills have been cured, but two things have happened, first of all there are a number of laws, ordnance and enactments passed, which are designed to prevent the security forces perpetrating any human rights abuses on the local population or indeed anyone else. Under the watchful eye of a number of international communities, these laws etc. are in fact working. There are bound to be the exceptions, which are brought about either by a lack of discipline or a lack of supervision, but those human rights abuses which I am satisfied now are the exception rather than the rule, are on an ever decreasing scale, because the security forces themselves are subject to the criminal law if they transgress ...

I have already made it clear that the appellant's uncle being a member of the Khalistan commando force, would be of legitimate interest to the authorities and I echo the remarks made by the Secretary of State that all too often courts are faced with a number of documents, the genuineness of which is either doubtful or challenged.

Most of the reports provided by the appellant seem to have taken place some considerable time ago, save for an affidavit said to be by the appellant's mother, which claimed that when her son was in India the local police tortured and harassed him because of his uncle, who was said to be an active member of the Khalistan Commander Force.

The affidavit advances the view that the appellant is being looked for and that he [she?] will say when `circumstances will be in his favour'. There does not appear to be a date on that particular document, it is written in English, and therefore unless the deponent is conversant in English, should contain a paragraph that its contents have been explained, and even if it is true, it is of course written by the mother of the appellant, who can really not be said to be independent.

The appellant claims to have been arrested on two occasions, on suspicion of having had links with the Khalistan party, the second arrest taking place one month after he was released on payment of a bribe relating to the first arrest, and the appellant being released on the second occasion again after payment of a bribe.

The appellant claims that he was charged on the first occasion of his arrest for helping the Khalistan party, but he did not go to court, because he did not receive any papers. Bearing in mind that he claimed that he was detained for 25 days, one would have thought that the appellant would have been taken to the court by the police during that period. I am satisfied that in India there is an independent judiciary and that people who are brought before the court are accorded rights, and can expect to receive a fair trial.

Even if the appellant was not taken to court in answer to the charge preferred in the first period of his arrest, one would have thought he would have been taken to court during the second period of his detention which he claims was for a period of about 10 days.

I do not accept the appellant's periods of arrest, or the claims of ill-treatment that he has made in respect of them. I consider the appellant's historical account to be implausible and not to bear scrutiny. The appellant furthermore appears to have brought with him, or obtained, a number of documents which he claims supports his case, and I would be very surprised if a person fleeing persecution was able to bring with him those documents. If the appellant had been searched at any stage, if he was carrying those documents, they would have given away either his intentions or that he was carrying them for some reason, which would be the subject of some very searching questions.

The appellant claims that in January 1994 when he was released from detention on the second occasion, he applied for a passport which he obtained, apparently without any difficulties, although he does say that it took a long time; but however long it took, I am satisfied that if the appellant was being actively looked for by the security forces, he would not have obtained the passport at all. I notice also that there was a contradiction on the appellant's behalf, who at one time said that he could not say when his passport was issued, but subsequently claimed that it was applied for in 1994, and received in 1995.

But what is clear is that the appellant subsequently left India, utilising his own passport, again without any problems, which once again reinforces my view that the appellant was not being actively looked for by the security forces.

The appellant claims that he went to his grandparents' house in January 1994, and he remained there until he left India in August 1995, it is said to be over a year, because the appellant went to stay in Delhi for three or four months during which time he had no problems at all.

However whilst he was with his grandparents, it appears that the police called there, to arrest him so he says, but he was never at home. This conjures up a vision of the police calling at the grandparents' home, on various occasions during that year that the appellant stayed there, but were so inept that they only ever called when the appellant was out, and they accepted that fact, and that although they knew where the appellant was living, were unable to arrest him. I just do not believe that the security forces would not have been able to arrest the appellant during a period of over a year, if they knew where he was living. The very fact that the appellant was apparently `out' on each occasion does not sound as though he was in any form of hiding.

It follows that I do not accept the version of events put forward by this appellant, and I have taken an adverse view of his credibility.

Although I am prepared to accept that the appellant may have had an uncle who was in an illegal organisation, I do not accept that this appellant was arrested on two occasions and detained, only being released after payment of a bribe, and that during the periods of detention he was ill-treated. I do not accept that someone that was actively being searched for by the security forces would be able to avoid capture in the way that I have already mentioned, simply because he was out when the forces called at his grandparents' address. I do not accept that the appellant would have been able to obtain a passport in his own name and identity, and then to utilise that passport to leave India, going through all the normal channels, without any problems.

It therefore follows that whatever the reason may be that this appellant has come to the United Kingdom, I am not satisfied that it is because he has a well-founded fear of persecution for a reason that comes within the United Nations Convention of 1951. I am satisfied that the true reason has not emerged, and it is not a matter upon which this court should or intends to conjecture ..."

Refusal of leave to appeal to the Immigration Appeal Tribunal

[8] The petitioner sought leave to appeal against the determination of the special adjudicator. On 11 July 1997, the Vice President of the Immigration Appeal Tribunal (the "IAT") refused the petitioner's application for leave to appeal. His determination dated 11 July 1997, number 6/2 of process, noted inter alia:

"The special adjudicator appears to have considered all the evidence before him, properly directing himself as to the correct standard of proof.

The tribunal considers that the findings and conclusions of the special adjudicator are fully supported by the evidence. There is no misdirection in law or otherwise.

In the opinion of the tribunal this is not a proper case in which to grant leave, and such leave is refused."

Petition for judicial review

[9] In May 1999, the petitioner lodged the present petition for judicial review. He seeks reduction of the special adjudicator's determination and of the IAT's refusal to grant leave to appeal.

[10] The Secretary of State for the Home Department ("the respondent") lodged answers, including a plea-in-law seeking dismissal of the petition on the ground that the petitioner had unreasonably and unduly delayed in seeking judicial review. The case came before Lord Nimmo-Smith, who repelled the respondent's first plea-in-law.

[11] At a subsequent hearing, counsel for the petitioner invited me to sustain the petitioner's pleas-in-law and to reduce the two determinations. Counsel for the respondent invited me to sustain the respondent's pleas-in-law and to dismiss the petition, failing which to sustain only the second of the petitioner's pleas-in-law, thus reducing the IAT's refusal of leave to appeal.

Statutory provisions relating to asylum

[12] Article 1A(2) of the Geneva Convention and Protocol relating to the Status of Refugees 1951 provides:

"For the purposes of the present Convention, the term `refugee' shall apply to any person who ... (2) owing to 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 ..."

Articles 32 and 33 prohibit the expulsion or return of a refugee, except in certain restricted circumstances.

[13] The Immigration Act 1971 (c.77) applies to those seeking to enter the United Kingdom. The Asylum and Immigration Appeals Act 1993 (c.23) makes special provision for those seeking asylum in terms of the 1951 Convention. A practice statement issued by the Secretary of State in terms of the 1971 Act and entitled "Statement of Changes in Immigration Rules HC 395" (laid before Parliament on 23 May 1994) provides inter alia:

"327. Under these Rules an asylum applicant is a person who claims that it would be contrary to the United Kingdom's obligations under the United Nations Convention and Protocol relating to the Status of Refugees for him to be removed from or required to leave the United Kingdom ...

328. All asylum applications will be determined by the Secretary of State in accordance with the United Kingdom's obligations under the United Nations Convention and Protocol relating to the Status of Refugees ...

334. An asylum applicant will be granted asylum in the United Kingdom if the Secretary of State is satisfied that (i) he is in the United Kingdom or has arrived at a port of entry in the United Kingdom; and (ii) he is a refugee, as defined by the Convention and Protocol; and (iii) refusing his application would result in his being required to go ... in breach of the Convention and Protocol, to a country in which his life or freedom would be threatened on account of his race, religion, nationality, political opinion, or membership of a particular social group."

[14] The Asylum Appeals (Procedure) Rules 1996 (S.I. 1996 No.2070) provide inter alia:

"2(3) For the purposes of these Rules -

an appeal is determined when written notice is sent of the decision whether or not the appeal should be allowed and expressions such as `determination' and `notice of determination' shall be construed accordingly;
every determination shall consist of a concise statement of

the decision on the substantial issues raised;
any findings of fact material to the decision;
the reasons for the decision."

Petitioner's submissions

[15] At the outset, counsel stated that no argument about internal flight or internal relocation arose in the present case. Nor would the respondent's second plea-in-law directed to mora, taciturnity and acquiescence be insisted on.

[16] Counsel accepted that it was for the petitioner to establish that he had a "well-founded fear of being persecuted" for one of the Convention reasons if he returned to India. The petitioner therefore required to establish whether subjectively he had a fear of being returned to his own country, and objectively whether there was a "reasonable degree of likelihood that he will be persecuted for a Convention reason if he returned to his own country": cf. R. v. Secretary of State for the Home Department ex parte Sivakumaran [1988] 1 A.C. 958, and in particular dicta of Lord Keith at pp.993-95, and Lord Goff at p.1000.

[17] In relation to the standard of proof to be met by the petitioner, counsel drew attention firstly to certain dicta of Lord Diplock, admittedly given in a different statutory context but quoted with approval by Lord Keith in the House of Lords in Sivakumeran, cit. sup.:

" ... bearing in mind the relative gravity of the consequences of the court's expectation being falsified either one way or in the other, I do not think that the test ... is that the court must be satisfied that it is more likely than not that the fugitive will be detained or restricted if he is returned. A lesser degree of likelihood is, in my view, sufficient; and I would not quarrel with the way in which the test was stated by the magistrate or with the alternative way in which it was expressed by the Divisional Court. `A reasonable chance', `substantial grounds for thinking', `a serious possibility' - I see no significant difference between these various ways of describing the degree of likelihood of the detention or restriction of the fugitive on his return ..."

When referring to Lord Diplock's words, Lord Keith commented:

"I consider that this passage appropriately expresses the degree of likelihood to be satisfied in order that a fear of persecution may be well-founded."

Counsel accepted that adjudicators did not have to quote at length from Sivakumeran. It was sufficient if they followed the tests therein set forth.

[18] Counsel then referred to Kaja v. Secretary of State for the Home Department [1995] Imm AR 1. In so doing, he accepted that, in immigration matters, adjudicators were entitled to have regard not only to the facts of the particular case, but also to their own understanding of the situation existing in a particular country. But adjudicators were expected to make clear in their determinations (i) that the principles in Sivakumeran were being applied; (ii) what evidence they found credible, what evidence they found uncertain; (iii) the reasoning leading to their findings. Counsel submitted that adjudicators had to take into account evidence or matters which they considered "uncertain". In Karanakaran v. Secretary of State for the Home Department [2000] 3 All ER 449, Brooke L.J. at p.459g explained and approved Kaja cit. sup. as follows:

"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 Sivakumeran 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 ..."

[19] Counsel emphasised that the court in Karanakaran advocated consideration of the totality of the evidence. At p.468d, Brooke L.J. quoted with approval certain principles formulated by Sackville J., and at pp.469j-470c observed that:

"... 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 ...

Needless to say ... the decision-maker is entitled to place greater weight on one piece of information rather than another."

Further, at p.471j, Brooke L.J. commented:

" ... unless something is so trivial that even on a cumulative assessment it would be bound to carry no weight, or the decision-maker has no real doubt that it is entitled to discard some point from its consideration altogether, it would be wrong to eliminate that point completely."

[20] Sedley L.J. at p.476 observed that there was no prescribed standard of proof. There were questions "not of hard fact but of evaluation" (p.477a); and at p.477e, his Lordship commented:

"The civil standard of proof, which treats anything which probably happened as having definitely happened, is part of a pragmatic legal fiction. It has no logical bearing on the assessment of the likelihood of future events or (by parity of reasoning) the quality of past ones."

[21] Counsel submitted that, in the present case, the adjudicator had taken into account certain facts about India without having indicated where those facts had come from. The petitioner challenged such an approach: the adjudicator had to give an indication of the provenance of the evidence upon which he was relying. If there was a conflict between one source of information and another, he should state why he preferred one source to another. Asylum cases involved life and liberty. A high standard of fairness was expected: R. v. Secretary of State for the Home Department ex parte Bugdaycay [1987] 1 AC 514, especially dicta at pp.531, 537H; R. v. Secretary of State for the Home Department ex parte Thirukumar [1989] Imm. A.R. 402, at p.414. Reasons for the decision had to be given: Daljit Singh v. Secretary of State for the Home Department, 2000 S.C. 219, pp.222-223.

[22] Counsel further argued that the special adjudicator had made general references to "security forces": but security forces were not necessarily the same as the police. The adjudicator appeared to have overlooked the petitioner's particular plight by concentrating on a more general picture. The adjudicator had given no indication of the sources from which he had drawn his assessment of the situation in India. The petitioner had lodged productions, further referred to below, which gave a very different picture of India. Where there was a lack of unanimity of view, it was particularly important that the adjudicator indicated the source or basis of his own view.

[23] Counsel then referred to the petitioner's productions documents numbers 6/10 to 6/15 of process, being respectively an Amnesty International Report headed "AI Report 1997: India" (6/10); U.S. Department of State - India Country Report on Human Rights Practices for 1996, released by the Bureau of Democracy, Human Rights, and Labor, January 30, 1997 (6/11) ; an Amnesty International Report headed "Part II: Amnesty International's concerns in India" issued March 1996 (6/12); a document headed "Response to Information Request" dated 17 February 1997 being a record of the views of four specialists about the Punjab, issued by the Documentation, Information and Research Branch, Immigration and Refugee Board, Ottawa (6/13); U.S. Department of State - India Country Report on Human Rights Practices for 1997, released by the Bureau of Democracy, Human Rights, and Labor, January 30 1998 (6/14); and the Home Office's "Country Assessment" relating to India dated April 1997 (6/15).

[24] In relation to document 6/12 of process, counsel drew attention to observations that India's legislation had lacunae and might be poorly implemented, and that some sections of the police were noted to be acting with impunity. Document 6/13 of process was described as a summary made by a third party of the views (sometimes conflicting) of experts. It was notable that on p.8, three of the four experts were consistent in their views that the Punjab police were still able to abuse human rights with some degree of impunity. In relation to document 6/14 of process, it was accepted that the document would not have been available to the adjudicator: but it was significant that the wording of the report had not changed much since the previous year's report (1996) and that the report was consistent with the Amnesty International Report "AI Report 1997". In relation to document 6/15 of process, it was accepted that the overall picture given by the paper could be seen as consistent with the adjudicator's view: but counsel submitted that the paper was very general in its approach; it did not deal with particulars, or with the kinds of situations complained about in this case (such as detention without appearing in court, or the possibility of torture while in detention). In any event, it was not clear from the adjudicator's determination whether or not he had relied upon that paper. Furthermore, the petitioner in the present case was not concerned about being prosecuted: he was concerned about detention without being brought before an independent judiciary; he was concerned about mistreatment while being detained without being brought before a court.

[25] Counsel then referred to two judgements of a special adjudicator sitting in Glasgow, numbers 6/16 and 6/17 of process, as illustrating how a special adjudicator might properly have regard to the sort of material contained in numbers 6/10 - 6/15 of process.

[26] Counsel summarised the petitioner's submissions as follows:

The adjudicator's decision was unreasonable in the Wednesbury sense. He had reached a view about the petitioner's application which no adjudicator properly informed and applying the law correctly would have reached. He had made an assessment of the objective background circumstances in India without indicating what factual source or sources he had drawn upon to reach his view, and without indicating why he had preferred such sources to other conflicting sources, such as those produced by the petitioner. His assessment was oversimplified, bearing in mind all the material available. His conclusion that the petitioner's own account was "implausible and [did] not bear scrutiny" was also unreasonable in the Wednesbury sense. The adjudicator had not dealt with, nor commented upon, the detentions which the petitioner had suffered, nor the allegations about police acting with impunity. The adjudicator appeared to have left out of account factors which he should have taken into account. Reference was made to Associated Provincial Picture Houses Ltd. v. Wednesbury Corporation [1948] 1 KB 223; Wordie Property Co. Ltd. v. Secretary of State for Scotland, 1984 S.L.T. 345, Lord President Emslie at p.347. The proper method of approach by an adjudicator was illustrated in numbers 6/16 and 6/17 of process. Further the adjudicator appeared to have used a 1997 yardstick to measure the credibility of the petitioner's description of events occurring in 1989, 1992, and 1993: in carrying out that exercise, he had taken into account irrelevant considerations because what may have occurred (or may have been likely to occur) in 1989, 1992 and 1993 was not necessarily the same as what was likely to occur in 1997.

[27] The adjudicator's decision was also challengeable having regard to the decisions in Sivakumaran and Kaja. The adjudicator's function was to look at the whole body of evidence. Of the four categories of evidence outlined in Kaja as explained in Karanakaran, only the fourth category could be rejected, i.e. what the adjudicator was sure was not true. In the present case, the adjudicator had wrongly excluded matters from his consideration. Each wrongful exclusion vitiated his reasoning process, because of the strictures in Kaja as interpreted and explained in Karanakaran. For example, it was wrong to dismiss the evidential value of an affidavit because it came from the petitioner's mother in India: one could perhaps give the affidavit less weight, but one could not exclude it. It was wrong to exclude the documents which the petitioner had relied upon in support of his application for asylum because he was supposed to have brought them with him from India. No acceptable reason had been given for excluding these documents. It was not clear why the petitioner should have been likely to have been searched on leaving India: there were no routine searches, and there was nothing in the background material to suggest that he would be searched. It was incorrect to confuse the "security forces" with the police. The obtaining of a passport had no bearing on the petitioner's complaint about police acting illegally towards him. Finally, there was nothing inherently incredible in an account of the petitioner not being at home on the occasions when police made sporadic calls at his grandparents' house, saying that they were going to arrest him. It was illegal activity (not legal activity) on the part of the police which the petitioner feared.

[28] Counsel concluded by submitting that the adjudicator had not followed the exercise required by Kaja, as interpreted and confirmed by the Court of Appeal in Karanakaran. The adjudicator had misdirected himself. He had used his views about the background situation in order to assess the credibility of the petitioner, and in so doing he had reached an adverse view about the petitioner's credibility without any proper factual basis for doing so. The cases of Bhatti, Harjit Singh and Kashmire (cited by the respondent) could be distinguished, as these were cases where the accounts given by the asylum-seekers had been disbelieved before the special adjudicator turned to consider the objective situation in the country in question. In the present case, the special adjudicator's assessment of the petitioner's credibility was flawed. The court was invited to sustain the petitioner's first plea-in-law and to reduce the determination of the special adjudicator.

[29] Counsel further submitted that, if he was correct in seeking reduction of the special adjudicator's determination, such a state of affairs ought to have been apparent to the IAT when considering whether or not to grant leave to appeal. The IAT had therefore erred in law in their decision number 6/2 of process to refuse leave to appeal. Thus the petitioner's second plea-in-law should also be sustained, and the matter remitted back to the special adjudicator.

Respondent's submissions

[30] Counsel for the respondent referred to Daljit Singh v. Secretary of State for the Home Department, 2000 S.C. 219, and in particular to the observations of the First Division at pp.222E - 223C and pp.225H - 226B:

"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. This is the first of the three dicta referred to by Lord Macfadyen in Singh 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 an adjudicator ...

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. Ltd. 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). 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 a judicial one (Lawrie v. Commission for Local Authority Accounts in Scotland; C, Petitioner).

In connection with immigration appeals it is to be noted that in terms of rule 2(3)(b) of the Asylum Appeals (Procedure) Rules 1996 every determination is to consist of a `concise' statement of (i) the decision on the substantial issues raised; (ii) any findings of fact material to the decision; and (iii) the reasons for the decision. We agree with the view of Lord Penrose in Mohammed Asif, Petitioner: `... nothing could be more destructive of the efficient disposal of immigration appeals than the notion that the adjudicator and the tribunal are under an obligation to carry through a mechanical process of narration of the evidence, analysis of it into classes, and an explanation factor by factor of the relevance or irrelevance, credibility and reliability or otherwise of it'. 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 judgements in this particular field of law ...

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. Senior counsel 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 ..."

[31] Counsel submitted that it was impossible for an adjudicator to record everything. The proper test for the court in a judicial review such as the present was to check whether the informed reader was left in any doubt as to (a) what the adjudicator's reasons for his decision were; and (b) what material he had taken into account in reaching his decision. In the present case, no information at all had been placed before the adjudicator, and yet he was being criticised for referring to his own body of knowledge. The petitioner's approach was wrong. The adjudicator had to look at matters in the round. The question which he had to answer was: "Does this particular individual have a well-founded reason to fear persecution". Guidance could be obtained from Bhatti v. Secretary of State for the Home Department, 6 November 1998 (Lord Reed, unreported) and Harjit Singh, 22 July 1999 (Lord Eassie, unreported). In the latter case, Lord Eassie observed:

"In responding to [counsel for the petitioner's] third point, namely the omission of the special adjudicator to refer to the documentation consisting of the bundle of press releases etc. placed before the special adjudicator, counsel for the respondent submitted that having reached the conclusion on the basis of the information particular to the petitioner's own personal history and circumstances set out in the interview that the petitioner did not meet the criteria for being a refugee the materials were simply not relevant to the issue before the adjudicator. There was, he submitted, no need for an adjudicator to mention or discuss materials which were not contradictory of his reasoning and upon which no part of his decision depended. In that regard [counsel for the respondent] referred to the opinions of Lord Reed in Bhatti (p.14ff) and Lord Kingarth in Kashmire (p.13ff).

Although at first sight it might appear strange that no mention is made by the special adjudicator of the bundle of press releases etc., I am persuaded that on this point also the submissions for the respondent are to be preferred. The factual circumstances of the two cases to which [counsel for the respondent] referred are of course different. However in Bhatti Lord Reed, having noted that refugee status depends on the individual claimant having a genuine fear of persecution, expressed the opinion that the special adjudicator was correct to reject a submission based solely on evidence of a risk to the population in general and he later observed, in relation to press cuttings submitted in that case and said to bear on the generality of the situation in Pakistan, that such was not the relevant focus of inquiry. In Kashmire, Lord Kingarth observed in relation to general human rights materials lodged in that case and the question whether it was necessary for an adjudicator to refer to those materials expressly that the adjudicator had rejected the applicant's account for reasons personal to him and relative to the evidence said to bear directly on what happened to him. In those circumstances Lord Kingarth did not consider it necessary for the adjudicator to refer in that context to evidence which on the face of it would not have altered the reasoning upon which the adjudicator proceeded."

[32] In Harjit Singh, the issue had been whether the police interest in the petitioner was politically motivated, or whether it had been motivated by the petitioner's criminal behaviour. Where no evidence was led before an adjudicator, his options were limited to (i) checking whether there were internal inconsistencies in the material before him; and (ii) checking whether there were matters supportive of the petitioner's assertions, or not.

[33] In the present case, the adjudicator had a bundle of documents number 6/3 of process, containing the statement by the petitioner, his supporting documents, the questionnaire, and the interview. The adjudicator was entitled to look at all matters in the round when assessing the credibility of the petitioner's account. In relation to the petitioner's mother's affidavit, it was submitted that the adjudicator's observations in his determination number 6/1 of process were accurate: the affidavit was undated, it was written in English, and it was given by the mother of the petitioner. In terms of the categorisation envisaged in Kaja, the affidavit probably fell into the third category. The adjudicator had not excluded it altogether: he had given it little weight.

[34] Similarly the adjudicator was justified in commenting that someone who had been detained could be expected to be brought to court, before an independent judiciary. The petitioner seemed to be suggesting that if the adjudicator had looked at the documents about India, numbers 6/10 to 6/15 of process, he would have found the petitioner's claims more credible. But counsel for the respondent submitted that the adjudicator was one of a group of specialist judges, who had built up a large body of knowledge. The onus lay on the petitioner: yet he had not placed anything before the adjudicator. Bearing in mind the adjudicator's specialist knowledge about India, it was difficult for the petitioner to claim that the adjudicator was being unreasonable in applying his understanding and his knowledge, particularly when no-one had provided anything to the contrary. The adjudicator's task was not an enviable one, particularly where no representative appeared for the petitioner, and the representative for the Home Office did not address him.

[35] Counsel then revisited the adjudicator's determination, and submitted that the adjudicator was justified and entitled in all his comments, inferences, and conclusions. The adjudicator was entitled to take the view that the petitioner's story was inherently incredible, and that his account was not supportive of a well-founded fear of being persecuted. The adjudicator had taken an overall view, and had made it clear, in terms of Kaja, Wordie, and Daljit Singh, what he accepted, what he did not accept, and the reasoning underlying his decision. The adjudicator had not acted unreasonably in the Wednesbury sense. At best for the petitioner, all that could be said was that different people took different views about what was going on in India. There was no way of knowing what this particular adjudicator knew about India. The reports about India varied, sometimes from area to area. It was impossible to conclude that the adjudicator had left out of account things which he should have taken into account.

[36] Counsel for the respondent concluded by submitting that the adjudicator's actings, viewed in the light of Kaja, Sivakumeran, and Daljit Singh, could not be said to be unreasonable in the Wednesbury sense. That being the case, there should be no reduction of either the adjudicator's decision or the IAT's refusal of leave to appeal: cf. dicta of Lord Penrose at pp.22-23 of Parminder Singh, 10 July 1998 (unreported). Alternatively, if the court were minded to grant reduction, only the determination of the IAT should be reduced. It was unnecessary to return the case to the adjudicator, or to quash his decision. Counsel ultimately invited the court to refuse the orders sought, and to dismiss the petition.

Opinion

[37] The petitioner did not present himself as a member of any political party. He was a nephew of the late Harnek Singh, alias Neka, a member of the Khalistan Commander Force (described by the special adjudicator as an illegal terrorist organisation). The special adjudicator did not suggest that such a family connection with a terrorist organisation could not form the basis of a Convention reason with Article 1A(2) of the Geneva Convention relating to the Status of Refugees 1951. Nor did he suggest that a combination of illegal detentions by the police without being brought before an independent judiciary, being beaten or tortured by the police during such detentions, obtaining release only upon payment of a bribe to the police, followed by further unannounced visits by police officers apparently intent on arresting the petitioner and further detaining him, could not amount to persecution, or could not give rise to a well-founded fear of persecution in the future.

[38] I agree with the special adjudicator. Police officers are part of the criminal justice system and, as such, are agents of the state. If the events described by the petitioner in fact occurred, it would appear that the petitioner was illegally detained and ill-treated on more than one occasion, by police officers apparently acting with impunity. It would appear that the petitioner received no, or inadequate, protection from the state. Such circumstances could well justify the conclusion that the petitioner was a refugee entitled to asylum.

[39] In the event, however, the special adjudicator's conclusion was:

"I do not accept the appellant's periods of arrest, or the claims of ill-treatment that he has made in respect of them. I consider the appellant's historical account to be implausible and not to bear scrutiny ... I do not accept the version of events put forward by this appellant, and I have taken an adverse view of his credibility ... I do not accept that this appellant was arrested on two occasions and detained, only being released after payment of a bribe, and that during the periods of detention he was ill-treated. I do not accept that someone that was actively being searched for by the security forces would be able to avoid capture in the way that I have already mentioned, simply because he was out when the forces called at his grandparents' address. I do not accept that the appellant would have been able to obtain a passport in his own name and identity, and then to utilise that passport to leave India, going through all the normal channels, without any problems."

[40] Put shortly therefore, the special adjudicator gave no weight or credence to the crucial elements giving rise to the petitioner's claim of a well-founded fear of persecution.

[41] I accept that questions of credibility are primarily matters for the adjudicator. Nevertheless, in immigration cases, as Collins J. observed in R. v. Home Secretary, ex parte Chugtai [1995] Imm AR 559:

"If there is a question of disbelieving anything an applicant has said, that ought to be spelt out. It is obviously desirable to indicate specifically why any witness is being disbelieved".

Collins J.'s views were noted in the Inner House in Daljit Singh, cit. sup. and it was accepted that his dicta might be highly relevant where "a question of credibility arises which has to be resolved by an adjudicator."

[42] In my view, a question of credibility arises in the present case. The special adjudicator has very properly set out his reasoning for disbelieving the applicant. That reasoning is open to scrutiny by this court, bearing in mind that:

"... where the result of a flawed decision may imperil life or liberty a special responsibility [italics added] lies on the court in the examination of the decision-making process ..."

per Lord Templeman in R. v. Secretary for the Home Office, ex parte Bugdaycay [1987] 1 AC 514.

[43] The special adjudicator, again correctly in the light of the authorities, approached the question of credibility by examining various aspects of the petitioner's case, and then forming an overall view: cf. Sedley L.J. in Karanakaran, cit. sup., at p.479j-480a ("a unitary process of evaluation"). I adopt the same unitary approach, using headings for ease of reference only.

[44] At the outset, I should state that I found the cases of Bhatti and Harjit Singh, cited by counsel for the respondent, to be of assistance. However I considered that they were distinguishable on their facts from the present case. For example, in Bhatti, a home office Entry Clearance Officer made a field trip to Pakistan to check some of the applicant's claims. He found that the applicant had not been telling the truth. No such proof of falsehood is available in the present case. In Harjit Singh, the applicant had been involved in criminal activities, and the authorities' interest in the applicant was on one view attributable to a proper and lawful criminal investigation. In the present case, there was no suggestion that the petitioner had been involved in criminal activity.

[45] Turning to the crucial elements in the present case:

State of affairs in India: One of the arguments presented by counsel for the petitioner was that the special adjudicator appeared to have had regard to the state of affairs in India as at 1997 (the date of his determination), and not as at 1989, 1992, and 1993, which were the years referred to by the petitioner in his answers during interview. I accept that such an inference could be drawn from the determination number 6/1 of process, and if the special adjudicator did indeed have regard to his knowledge of India as at 1997, rather than in the years referred to by the petitioner, that would tend to undermine the special adjudicator's approach to the petitioner's credibility. But even if, contrary to counsel's contention, it is assumed that the special adjudicator had in mind the appropriate chronological periods, the special adjudicator specifically noted - "I do not want to convey the impression that all the ills have been cured ...There are bound to be the exceptions, which are brought about either by a lack of discipline or a lack of supervision, but those human rights abuses which I am satisfied now are the exception rather than the rule, are on an ever decreasing scale ...". The special adjudicator thus specifically acknowledged that there might be exceptions resulting in human rights abuses.

[46] The accuracy of such an acknowledgement is borne out by the productions numbers 6/10 - 6/15 lodged by the petitioner in the judicial review process (but not put before the special adjudicator at the hearing on 22 May 1997). The productions give some detail about the exceptions resulting in human rights abuses, referred to by the special adjudicator. For example, in number 6/12 of process, the Amnesty International Report issued March 1996, contains the following information:

"[p.6] ... Local, regional and national power structures perpetuate corrupt practices and provide virtual impunity for those who violate human rights ...[p.7] Many people have `disappeared' after apparently being taken into custody by agents of the state. Legal safeguards for the protection of detainees are thus ignored with impunity ...[pp.9-10] Arrest, Detention, Trial and the Legal Process: Amnesty International is particularly concerned about existing measures for the protection of detainees against ill-treatment and torture and for ensuring that political prisoners are given a fair trial. Protection for detainees is extensively provided for in Indian law. For example, sections 46-58 of the Code of Criminal Procedure provide for arrest and detention procedures, including that the arrested person be informed of the grounds of the arrest...sections 56 and 167 of the Code of Criminal Procedure state that a person arrested is not to be detained for more than 24 hours before being brought before a magistrate, who can then order detention in police custody for a further 15 days, and thereafter in judicial custody for up to 60 or 90 days (depending on the seriousness of the alleged offence). However, Amnesty International is concerned that these measures do not provided adequate safeguard against human rights violations. For example, police do not have to inform relatives promptly of an arrest. The absence of this simple procedure facilitates `disappearances'. Similarly, the absence of mandatory procedures to ensure that all detainees are given a prompt medical examination following arrest facilitates deaths in custody ... the legal safeguards that do exist are not implemented by the police and the security forces. Arrest and interrogation procedures are routinely flouted. Detainees are not always brought before a judicial magistrate within 24 hours of arrest. Inquests into deaths in custody are not always held ..."

[47] The Canadian paper (Response to Information Request dated 17 February 1997 number 6/13 of process) notes at p.8:

"In Mann's opinion, the recent judicial actions against some Punjab police officers will not solve the problem of impunity or abuses. Mann stated that the Punjab police, with an ingrained culture of using brute force, retain the power to do many unacceptable things without being called into account. He argued that they still, for example, have the power to bring people to the police station and abuse them, a contention with which both Nair and Brack agreed. According to Nair, torture is used endemically by police throughout India. Brack argued, however, that while serious, the abuse of detainees is now no worse in Punjab than in other parts of the country. Brack also stated that there is some encouragement in a current project being developed between the Canadian Human Rights Commission and the Indian Human Rights Commission to provide extensive human rights training for police in India, including Punjab police. According to Brack, this project is an example of the general trend in India toward recognising and addressing systemic problems with police ..."

[48] Against that background, I consider that, unless the special adjudicator could demonstrate that, whatever lapses in respect of human rights might occur elsewhere in India, such lapses did not or would not have occurred in the areas referred to by the petitioner at the relevant times, then, standing the special adjudicator's own view about possible exceptions and lapses, he misdirected himself when he sought to test the petitioner's credibility by referring to general overall improvements in India. Moreover, if the special adjudicator sought to demonstrate that it was unlikely that there would be lapses or exceptions in the areas and times referred to in the petitioner's account, the petitioner would in my view be entitled to some reference to the source or sources of the special adjudicator's information - either during the hearing or in the text of the determination: cf. for example dicta of Sedley L.J. in Karanakaran, cit. sup., at p.479d:

"[The decision-makers'] 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) [italics added]"

See also the dicta of Lord Macfadyen in Jaswinder Singh v. Secretary of State for the Home Department, 1998 S.L.T. 1370 at p.1377E:

" ... in my view if a special adjudicator is going to rely on personal knowledge or experience as an important part of the basis for rejecting as `unreliable' a major part of the evidence founded on by the appellant before him, it is incumbent on him to declare the knowledge on which he relies as part of his reasons, if not, indeed, in the course of the hearing ..."

In my view, no sufficient disclosure or declaration of any knowledge or information upon which the special adjudicator relied was made in this case.

[49] Authenticity of documents and significance of passport: I accept counsel for the respondent's submission that the adjudicator would be entitled to regard the petitioner's mother's affidavit as falling within the third category of evidence referred to in Kaja ("evidence to which [the decision-maker is] willing to attach some credence, even [if he] could not go so far as to say it is probably true"). The weight which he gave the affidavit was a matter for him. However I am unable to accept the inferences which the special adjudicator drew in relation to (i) the petitioner's documents produced in support of his application for asylum; and (ii) the issue of a passport to the petitioner. In relation to (i), there was no information to suggest that the petitioner carried the relevant documents on his person or in his luggage when he crossed the border on leaving India. Nor was there information suggesting that searches of individuals leaving India were to be expected, or were to be expected for persons such as the petitioner. There seemed therefore to be no factual basis for the implied inference of lack of genuineness of the documents. In relation to (ii), the grant of a passport, I have difficulty with the adjudicator's treatment of the petitioner's answers in interview to questions 12, 50, and 51. In my view, the answers tended to demonstrate an average person's inability to remember the precise dates when he applied for his passport, and when the passport was issued. I did not consider that the petitioner's answers demonstrated the sort of inconsistencies and lack of coherence found in Kashmire, cit. sup. Further, I agree with counsel for the petitioner that if it be the case that police officers were acting illegally, a central organisation such as a passport office would not necessarily be affected, and would be likely to function in a routine way. Ultimately therefore it was my view that unless the special adjudicator could refer to convincing sources of information supporting the approach adopted by him, the petitioner's supporting documents and passport did not provide a rational basis for doubting the credibility of the petitioner's account.

[50] Unproductive police visits: Questionable activities on the part of the police could in my view take the form of sporadic, undocumented and unwarranted visits, made without warning, in the hope that the person targeted would be at home and could be taken away. Such visits would not necessarily be recorded or formally followed up.

[51] Assumption that a detainee would be taken to court: In relation to the question of detention and court appearances, the main thrust of the petitioner's complaint was not that he might be detained and taken to court where some lawful punishment might be imposed. His fear was of illegal detention at the hands of police acting with total disregard for the legal system, and without ever taking him to court. As the adjudicator observed, while there appeared to have been considerable progress in India resulting from the passing of "a number of laws, ordnance and enactments ...designed to prevent ... human rights abuses", nevertheless "there [were] bound to be the exceptions ... brought about either by a lack of discipline or a lack of supervision". Accordingly I find it difficult to accept the adjudicator's view that "one would have thought that the appellant would have been taken to the court", unless, as indicated above, the adjudicator could give reasons (with references to any relevant sources or documents) why the possibility of lapses or exceptions amounting to breaches of human rights could be ruled out in the petitioner's case.

[52] Departure from India: Without having been referred to convincing data, I am not persuaded that illegal activities by certain police officers would necessarily result in their being able to control and influence those in charge of a point of departure from India. A trouble-free departure from India seemed to me to be quite consistent with the petitioner's account.

[53] It will be seen therefore that, of all the reasons recorded by the adjudicator as contributing to an overall adverse view of the petitioner's credibility, I consider only one to be almost stateable, namely the possible doubts about the petitioner's mother's affidavit, resulting in its relegation to the third category of evidence as classified by Kaja ("evidence to which [the adjudicator is] willing to attach some credence, even if [he] could not go so far as to say it is probably true"). Applying the principles set forth in Sivakumaran, Kaja as explained in Karanakaran, Bugdaycay, Singh, and the other authorities cited by counsel, and taking matters as a whole, I do not consider that any doubt attaching to the affidavit would be sufficient in itself to render the petitioner's entire account "implausible and not to bear scrutiny". Accordingly on the information before me, I consider that the special adjudicator's ultimate conclusion was unreasonable in the Wednesbury sense, as submitted by counsel for the petitioner. Further, if there were sources of knowledge or information being drawn upon by the special adjudicator which, in his view, justified his disbelief in the petitioner's account, and his conclusion that the petitioner had failed to satisfy the subjective and objective criteria required by Sivakumeran, then the special adjudicator failed in my view to give adequate reference to such sources of knowledge or information, and thus failed to give adequate reasons for his determination: cf. Wordie Property Co. Ltd., cit. sup.; Sedley L.J. in Karanakaran, cit. sup. p.479d; Lord Macfadyen in Jaswinder Singh, cit. sup.

[54] I am also of the view that no reasonable IAT chairman, having considered the application for leave to appeal, would have failed to recognise that it was arguable that the special adjudicator had erred. In conclusion, I shall repel the second, third and fourth pleas-in-law for the respondent, sustain the petitioner's first and second pleas-in-law, and reduce the special adjudicator's determination, and the IAT's refusal to grant leave to appeal.