Scottish Court of Session Decisions

[1] This is a petition by Khalid Anaid Inayat seeking judicial review of a decision of the Immigration Appeal Tribunal dated 13 October 2000 refusing him leave to appeal against a decision of a Special Adjudicator dated 20 September 2000. In that decision the Special Adjudicator refused the petitioner's appeal against a decision of the respondent dated 9 August 2000, refusing his application for political asylum.

[2] The petitioner is a citizen of Pakistan. He arrived in the United Kingdom on 1 August 2000 and claimed asylum that day. The basis of his claim was as follows. He is a convert to the Ahmadi faith. His family is Sunni Muslim. Members of the Ahmadi faith are seen as traitors to the Muslim faith and in Pakistan are subject to persecution and physical harm. A Fatwah has been pronounced declaring that any person leaving the Sunni community to convert to the Ahmadi faith should be killed. The state authorities in Pakistan are unwilling or unable to provide Ahmadis with protection. He has been the victim of physical violence and death threats from his father and other relatives. A First Information Report has been raised against him under section 295 of the Pakistani Penal Code, denouncing him for speaking in public about his faith and attempting to spread it. An offence under that section carries a mandatory sentence of death.

[3] His application for asylum was refused by the respondent on 9 August 2000 and he appealed to the Special Adjudicator.

[4] A hearing before the Special Adjudicator was fixed for 11 September 2000. On that date the petitioner's solicitor successfully sought an adjournment and a further hearing was fixed for 18 September. At that hearing the petitioner's solicitor moved for a further adjournment. The principal ground for the motion was as follows. After his arrival in this country the petitioner lived in England and was assisted in his application by the Refugee Legal Council. He then moved to Glasgow and on 4 September 2000 instructed solicitors to represent him. In refusing the petitioner's claim for asylum the respondent had relied on inter alia the appellant's alleged failure to answer correctly certain questions about the Ahmadi faith which had been put to him at interview. In the hope of enabling the petitioner to challenge the respondent's finding, his solicitor wrote two letters on 11 September, one to the Ahmadiyya Muslim Association UK and the other to a Mr Selby, a potential expert witness, requesting information as to the level of information which converts to the Ahmadi faith might be expected to have about the faith. The solicitor was unable to say when replies to these letters would be forthcoming. He had reason to believe that the provision of the requested information might depend on investigations being made in Pakistan. An adjournment was necessary to allow this information to be obtained.

The Special Adjudicator refused the motion, and set out his reasons as follows.

The Special Adjudicator then went on to consider the appeal on the basis of the available information and evidence and dismissed the appeal.

[5] The petitioner then applied to the Immigration Appeal Tribunal for leave to appeal against the determination of the Special Adjudicator. The application was heard on 4 October 2000 and was refused. In refusing leave the Tribunal expressly agreed with the Special Adjudicator's refusal of the motion for an adjournment and with the reasoning on which it was based.

[6] Rule 14 of the Immigration Appeals Procedure Rules 1984 provides that -

[7] Counsel for the petitioner accepted that if he could not succeed in establishing that the special adjudicator had erred in law, he could not succeed in his attack on the decision of the Immigration Appeal Tribunal. His attack on the Tribunal's decision depended upon the contention that the Special Adjudicator had erred in law.

[8] Counsel argued that, in exercising his discretion to refuse the motion to adjourn, the Special Adjudicator acted unreasonably and irrationally and so erred in law. The respondent's reason for rejecting the petitioner's claim for asylum was that he did not believe that the petitioner was an Ahmadi. The degree of knowledge of the Ahmadi faith which the petitioner displayed in answering the questions asked at interview was insufficient to satisfy the respondent that he was a member of the faith. The object of the two letters written by the petitioner's solicitor was to obtain information as to the level of knowledge to be expected of a convert of the Ahmadi faith. Without that information the Special Adjudicator had no criteria against which he could measure the petitioner's level of knowledge. This was a matter which was directly relevant to the petitioner's credibility. The Special Adjudicator had made a finding on the petitioner's credibility in the absence of the information which the petitioner's solicitors were endeavouring to obtain. In so doing he acted unreasonably and irrationally and so erred in law. He had failed to give the motion the necessary anxious scrutiny. See Bugdaycay v S.S.H.D. 1987 1 All ER 940 per Lord Bridge at 952. The Tribunal in turn had erred in law in refusing leave to appeal in respect that they had failed to recognise that the determination of the appeal involved an arguable point of law.

[9] Counsel for the petitioner argued further that in refusing the motion to adjourn the Special Adjudicator had taken into account an irrelevant consideration, namely that an adjournment would result in other appellants being kept waiting longer than they otherwise would for their appeals to be dealt with. He had failed to take account of a relevant consideration, namely the fact that the two letters referred to had been sent on 11 September and that no reply had been received. Moreover, he had failed to recognise and take into account the fact that the petitioner as a refugee would have difficulties in proving his case. See Handbook of Procedures and Criteria for Determination of Refugee Status (1998), paragraph 244 (203) and (204). In support of his argument counsel cited the case of Mohammed Iqbal Hussain, decided on 20 September 2000 by a differently constituted Tribunal, the facts of which he submitted were virtually identical to those of the petitioner's case. In that case the Tribunal had granted leave to appeal.

[10] Counsel for the respondent submitted that the refusal of the motion to adjourn was an exercise of the Adjudicator's discretion with which the court should be slow to interfere. The Adjudicator had had regard to the factors to which he ought to have had regard, and had left nothing material out of account. There was no information as to why the appellant had not attempted to obtain the information prior to 11 September. There was no more than a speculative possibility that the information would ever be produced, or, if it were to be produced, that it would be material.

[11] The decision as to whether or not to adjourn was a matter for the Special Adjudicator's discretion. I have come to the view that there is no basis for interfering with the exercise of his discretion by the Special Adjudicator. In R. v Kingston on Thames Justices ex parte Peter Martin, [1994] Imm. A.R. 172 Simon Brown, L.J., listed a number of considerations which were relevant to the question whether a refusal to adjourn would found a successful application for judicial review. These included the importance of the proceedings to the petitioner and the prejudice he might suffer if his application were refused. The Special Adjudicator expressly recognised these factors. He also had regard to the view that it is in the interests of justice generally that appeals should be dealt with speedily and efficiently. I reject the petitioner's argument that the Special Adjudicator erred in law in taking this consideration into account. In Kingston on Thames Justices, Simon Brown, L.J. recognised that it was relevant to a decision to adjourn. So too was the extent to which a petitioner had brought the problem upon himself. The Special Adjudicator had regard to this factor when he referred to the petitioner's failure to obtain the information earlier. The petitioner had had legal representation since his entry into the country on 1 August and he had had notice of the significance of his failure to answer correctly the questions relating to the faith in the respondent's letter of 9 August. The attempt to obtain the information was first made after the adjournment granted on 11 September. It was not suggested that when the motion for an adjournment was made on that date that a week's adjournment would not be sufficient.

[12] The Special Adjudicator was given no specific indication that the information sought was or would be in fact available. When counsel for the petitioner was asked by me whether any information had come to hand, he indicated that no information had been received by him or by the petitioner's solicitors. All he was able to say was that he had been told that the petitioner had said that certain information had now become available to him. The nature of that information had however not been disclosed to his legal representatives. It is therefore clear that no response had been received to the letters sent by the solicitors on 11 September 2000.

[13] So far as the case of Mohammed Iqbal Hussain is concerned, I am unable to derive any assistance from it. The decision of the Immigration Appeal Tribunal allowing leave to appeal is in the briefest possible terms and leave was said to be granted "for the reasons appearing from the grounds of appeal". The grounds of appeal were not produced. In any event, leave to appeal was granted of consent of the respondent.

[14] Special Adjudicators hear large numbers of appeals, and in doing so determine issues of credibility with regularity. I do not accept the proposition that a Special Adjudicator is incapable of determining the kind of issue of credibility which arose in this case without the benefit of some opinion or evidence from an external source directed at the question of credibility. In these circumstances I am quite unable to say in refusing to delay the determination of the appeal for an indeterminate period of time, to await the arrival of unspecified information which may not exist, and which in this case appears not to exist, the Special Adjudicator acted unreasonably or irrationally.

[15] I shall therefore refuse the prayer of the petition.