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Ulsalam, Re [2002] ScotCS 295 (19 November 2002)

OUTER HOUSE, COURT OF SESSION

P200/02

OPINION OF LORD JOHNSTON

in Petition of

SAIF ULSALAM

Petitioner;

for

Judicial Review of (i) a determination of an Adjudicator and (ii) a determination of the Immigration Appeal Tribunal to refuse leave to Appeal

________________

Petitioner: Devlin; Drummond Miller, W.S.

Respondent: Carmichael; H F Macdiarmid, Office of the Solicitor to the Advocate General

19 November 2002

This is an application by an asylum seeker, claiming to be an Afghan, for reduction of a decision firstly, of a determination by an Immigration Adjudicator rejecting the petitioner's claim and thereafter against a decision of the Immigration Appeal Tribunal refusing leave to appeal. The issue before me turns upon the validity of the determination of the Adjudicator but, in fact, as counsel for the respondent, the Secretary of State for Home Affairs, pointed out, the appropriate remedy to be granted, if at all, was against the decision of the Immigration Appeal Tribunal to refuse leave. If that decision was quashed, the matter would return to the Immigration Tribunal to be further considered against the background of any view this court expressed in relation to the terms of the Adjudicator's determination.

I heard an extensive debate in which the following authorities were referred to:

Reg v Secretary of State for Home Affairs ex parte Bugdaycay 1987 A.E. 514; R v Ministry of Defence ex parte Smith 1996 Q.B. 537; Assis v Secretary of State for Home Affairs 2002 S.C. 182; Karanakaran v Secretary of State for Home Department 2000 1 A.E.R. 449; Regalinghan v Minister for Immigration and Multicultural Affairs 1999 F.C.A. 719; Sattar, Petitioner 2001 S.C.L.R. 749; Singh v Secretary of State for Home Affairs 2000 S.C. 288; R v Immigration Appeal Tribunal ex parte Chen Liu Guang 1 September 1999 (unreported); Sham v Secretary of State for Home Department 6 October 1999 (unreported) and W321/01A v Minister for Immigration and Multicultural Affairs 2002 F.C.A. 210.

The reasons I have rehearsed the citation of authorities as a group is that I do not consider any real question of law is raised by this case which requires me to consider the validity, or otherwise, of the decision initially of the Adjudicator, against the well-recognised test as to whether or not any adjudicator properly instructed could reasonably have reached the decision that was achieved. This is the general test of irrationality recognised in relation to administrative law extended only to the limit of whether or not in addition to the question of rationality the Tribunal, or in this case the Adjudicator, took into account factors he should not have taken account, or vice versa.

The reason that I put the matter this way is because counsel for the petitioner, under reference to certain of the authorities, sought to suggest, on the one hand, that there was a higher test than the normal general test of rationality where questions of life or liberty were in issue, referring to such judicial phrases as "greater care" or "close scrutiny".

I do not consider that the authorities properly understood raise the threshold to be applied in relation to judicial review of administrative decisions in this context beyond the test of irrationality. At the end of the day what has to be determined is whether or not the determining authority has produced a rational decision properly to be understood on the evidence that it takes into account, and I approach the matter solely upon that basis.

Having said that however, there is one further aspect of the general law which is of great importance to my mind as contained in Singh supra to the effect that the Adjudicator's decision, while susceptible to scrutiny and required to be rationally justified, does not require to be a complete rehearsal of the evidence that has been heard nor a detailed rationalisation of it, provided it is capable of informing both parties as to the reasons for the decision which, in turn, must be evidentially based. It follows that to subject, in my opinion, the Adjudicator's decision to the most detailed and precise, if not minute, scrutiny is going too far. At the end of the day the question for this court, exercising its administrative jurisdiction, must be to determine whether or not, as an entity, the decision is rationally supportable.

In this case, of course, the issue is one of credibility which raises a further issue as to how far the Adjudicator must go in that assessment. Plainly, at the end of the day, such issues are as much as one of impression as conclusion, particular where, as here, the asylum seeker was present at the hearing before the Adjudicator and gave oral evidence.

Essentially, apart from that hearing, the Adjudicator's decision is based upon an original statement made by the petitioner, a questionnaire which was provided before me in written form, which was conducted through an interpreter and, initially, what was said to be additional grounds basing the claim for asylum which takes the form of a formal form completed by the asylum seeker or, in this case, on his behalf.

Against that background the critical part of the Adjudicator's decision is as is contained in paragraphs 15 to 18, to which I make general reference.

Counsel for the petitioner attacked each of these paragraphs.

In relation to paragraph 15, he accepted that in the original additional grounds statement the petitioner had said that he was member of a particular political party but, however, he had subsequently retracted that position, both in the questionnaire and in his statement. Accordingly, it was submitted, the Adjudicator had attached far too much importance to this aspect just as he had equally attached far too much importance to the apparent lack of information emanating from the petitioner in relation to his journey apparently from Afghanistan to Moscow. Counsel went on to submit that the Adjudicator should not have taken into account the failure on the part of the petitioner to claim asylum in another country or the delay in claiming asylum in this country. It was equally nothing to the point, he submitted, that the petitioner had sought not to seek asylum in Pakistan.

Perhaps most crucially, however, counsel for the petitioner said that the Adjudicator attached far too much importance to certain answers that the petitioner had given in the questionnaire revealing an apparent ignorance of certain aspects of geography and customs obtaining in Afghanistan.

In essence, counsel for the petitioner's position was that examined in detail none of these reasons singularly or in cumulo could provide a sufficient basis for the conclusion reached by the Adjudicator that he found the petitioner incredible.

The response by counsel for the respondent was refreshingly succinct. Against the background of the general propositions that I have already set out, she submitted that the Adjudicator had given adequate reasons for his decision on credibility, which should only be interfered with if it could be shown to be plainly wrong. The fact there might be two sides to the question was nothing to the point. Here, there were a number of reasons which taken together entitled to the Adjudicator to have serious doubts as to the credibility of the petitioner and based his decision on that aspect.

I have no hesitation in accepting the position adopted by the respondent. It seems to me the Adjudicator looked at the matter in some detail and was more than entitled for the reasons he gives to have serious doubts, putting it at its lowest, as to the credibility of the petitioner. He was more than entitled, in my opinion, to derive considerable significance from the apparent change from the initial position with regard to membership of the relevant political party and once doubts started to enter the mind of the Adjudicator in this respect they could be easily confirmed by the subsequent factors he took into account in relation to the contents of the interview, the lack of knowledge of the journey and the general position adopted by the petitioner when it came to the claiming of asylum. It must be borne in mind that this is a court of review when it comes to the exercise of its administrative jurisdiction, not a court of appeal. So long as the decision being attacked can be rationally supported, this court should not interfere, whatever views it might have in relation to the various relevant factors if the matter was de novo.

In these circumstances, I see no ground for interfering with the decision of the Adjudicator. Since the decision of the Immigration Appeal Tribunal was based entirely upon the facts, as disclosed to them, and that the grounds of appeal revealed only issues of credibility, it follows that the refusal of leave by the Immigration Appeal Tribunal is rationally supportable.

A separate issue under the Human Rights Convention was raised, but it was accepted that it did not focus a separate question from the basic credibility issue. Nothing therefore turns on that aspect.

In these circumstances I consider this application is without substance and the petition will be dismissed.