Scottish Court of Session Decisions

Singh v. Secretary of State for Home Department [2002] ScotCS 31 (5th February, 2002)

EXTRA DIVISION, INNER HOUSE, COURT OF SESSION
Lord Cameron of Lochbroom Lord Bonomy Lord Morison	XA29/01 OPINION OF THE COURT delivered by LORD CAMERON OF LOCHBROOM in PETITION of HARJIT SINGH Petitioner and Appellant; against SECRETARY OF STATE FOR HOME DEPARTMENT Respondent: _______

 

 

Act: Sutherland; Lindsays, W.S., (for Gray & Co., Glasgow)

Alt: Dewar; R. Henderson, Solicitor to the Secretary of State

5 February 2002

1. The petitioner and appellant appeals against dismissal by the Lord Ordinary of his petition for judicial review of (1) a decision of the respondent dated 12 December 1995 refusing the appellant's application for political asylum, (2) a determination by a special adjudicator on 24 April 1997 refusing the appellant's appeal against the respondent's decision and (3) a determination by the chairman of the Immigration Appeal Tribunal on 30 May 1997 refusing leave to appeal to the Tribunal. Before the Lord Ordinary parties were agreed that the challenge by way of judicial review was only to the determination of the special adjudicator and that of the chairman of the Tribunal. Reduction of these two determinations would enable the appellant to pursue his appeal of new.
2. The appellant is a citizen of the Republic of India. There is no dispute that he left India using a passport he had obtained legally in 1988 or 1989. He entered the United Kingdom illegally on 20 January 1995. By solicitors' letter dated 3 February 1995 he applied to the Home Office for political asylum. In that letter it was indicated that the appellant was an active member of the Khalistan party of India and had an objective and well founded fear of persecution were he to return to India. Thereafter events concerning his claim proceeded as outlined above. The special adjudicator was invited to, and did, determine the appeal on the basis of the documents before him, these being the asylum interview, together with the respondent's decision letter of 12 December 1995. He was also provided by the appellant's solicitor with certain further documentation under cover of the solicitor's letter of 21 April 1997.
3. In his opinion the Lord Ordinary sets out the principal parts of the asylum interview which formed the basis of the petitioner's claim for political asylum. We do not rehearse this at length but particular attention was drawn by counsel to two questions and answers as follows:

"Q.20 What event caused you to leave India?

A. Because I was a member of the All India Sikh Student Federation. I used to take part in rallies and demonstrations and used to organise general strikes. The police used to come and arrest me. They arrested me once or twice, used to beat me up. I had to bribe them to secure my release.........

Q.40 Please clarify that arrests were in relation to a robbery, firing incident and firearms, but not politically motivated?

A. Yes because we were fighting against the government and demanding Khalistan. Being a member of the Federation I was bit involved as a political matter."

In the course of the interview the appellant also stated that the first arrest was in April 1994 when he had been arrested with five others because there was a robbery and police accused him of being a part of it. He had been detained for two days. Some twenty to twenty five days later there had been "a firing in Noormahal" and the police had arrested him again. He was detained for three to four days on this occasion. There were no charges. The police arrested him a third time 15 days before he left India because of allegations that he kept illegal firearms. He did not know whether there were any charges against him: to his knowledge there were none. He had been arrested from his house and after each arrest he had returned home. What had actually made him decide to leave India was "because of these problems they will kill me". He had joined the AISSF in September 1992. His duties were taking part in rallies/demos/canvassing to join the Federation. He himself was a student in India.

4. The special adjudicator was also aware that the appellant left India in January 1995 and that he did not claim asylum in France, a safe country, in the course of his passage to the United Kingdom. He was further aware that the AISSF was not a proscribed organisation in India.
5. The relevant portion of the determination of the special adjudicator is set out the Lord Ordinary's opinion. It was preceded by a passage in which, as counsel for the appellant accepted, the special adjudicator correctly set out the test which he required to bear in mind, namely, that there was a low standard of proof applicable in asylum cases and that it was necessary only for the appellant to demonstrate a well founded fear of persecution in India for a Convention reason to the standard of a reasonable degree of likelihood or a serious possibility. Furthermore, counsel accepted that the special adjudicator had correctly identified the claim as one based on "the harassment to which the appellant says he was subjected because he was a member of the AISSF".
6. Before the Lord Ordinary and before this court the debate was directed primarily to the validity of the decision of the special adjudicator. Before this court counsel for the appellant submitted that the special adjudicator had not properly approached the appellant's request for political asylum in regard to three points. In the first place, the basis of the claim for political asylum was related to political activities on the part of the appellant which had given rise to his detention by the police in India on false accusations of involvement in criminal activities. The special adjudicator had erred in what counsel termed "latching on" to criminal activities and had overlooked the proper basis of the appellant's claim. In the second place, in dealing with issues as to his passport, the special adjudicator had made two mistakes in his approach to that matter; firstly, he did not look at the question simultaneously with all the other material bearing on the basis for the appellant's claim; secondly, he did not pay proper attention to the history concerning possession of the passport and its relation to events leading up to his departure from India. This appeared, in particular, in comments he made upon the facts that the appellant had not used the passport earlier and that when it was used it was only some 15 days after his third arrest by the police. Both the first and second points went to the matter of the credibility of the appellant's claim. The third and final point was that the special adjudicator had ignored background material put forward on behalf of the appellant and had failed to appreciate the importance of such material in that it demonstrated a history of police killing of substantial numbers of political opponents on a large scale and over a prolonged period of time, which coincided with the appellant's seeking asylum and helped to explain his fear for his life.
7. These same points were debated before the Lord Ordinary and are reflected in the grounds of appeal. The ground of appeal reflecting the first point asserts that the Lord Ordinary misdirected himself as to the proper approach which ought to have been taken by the special adjudicator in relation to the evidence directed to whether the appellant had a well founded fear of persecution. It is said that the Lord Ordinary failed to appreciate that the special adjudicator had not properly applied the legal tests for establishing whether the evidence adduced by the appellant meant that the appellant had a well founded fear of persecution under reference to the tests described in Kaja v. Secretary of State for the Home Department (1995) Imm AR 1 and Karanakaran v. Secretary of State for the Home Department (2000) Imm AR 271. A further criticism set out in this ground of appeal, to the effect that in testing the reasonableness of the determination of the special adjudicator the Lord Ordinary ought to have applied a lower threshold of reasonableness to the determination, formed no part of the submissions before this court. The ground of appeal reflecting the second point asserts that the Lord Ordinary erred in holding that the special adjudicator had treated the fact that the appellant was able to leave India on his own passport as being nothing more than supportive of the view that the appellant's detention was not to be inferred as prompted by political motives.
8. We begin by observing that both counsel accepted that, in carrying out his function, the special adjudicator required to answer the question whether someone was at risk of persecution for a Convention reason by looking at the question in the round and that, in doing so, all relevant circumstances were to be brought into account. We refer to what Simon Brown L.J. said in R. v. Secretary of State for the Home Department, ex p. Ravichandran (1996) Imm AR 97 at p.109, cited in Karanakaran. It is clear from his opinion that the Lord Ordinary proceeded on the basis, argued for by counsel for the respondent before him, that although the answer given at interview to question 20 suggested that the petitioner was arrested and beaten up because of his activity in rallies and demonstrations and the answer to question 40 might contain some ambiguity, nonetheless, read as a whole, it was evident that the appellant's account given at the interview was that the arrests to which he referred took place in the course of police investigation of actual allegations of crime, in which the appellant was released from detention after a brief period and no charges were preferred against him. Thus the Lord Ordinary considered that the special adjudicator was entitled to take the view from the terms of what the appellant said at interview, that his detention on three occasions for short periods by the police was because there had been a robbery and a "firing" which the police were investigating and in which the appellant was initially suspected of having involvement and because it had been alleged that the petitioner was in unlawful possession of firearms. The Lord Ordinary did so having regard to other material which was before the special adjudicator which was relevant to the question that the special adjudicator was looking at, namely, that Sikhs are not a persecuted group, that the AISSF was not a proscribed organisation and that the appellant's involvement in political activity was at a very low level. Before the Lord Ordinary, and again before us, counsel for the appellant did not dispute that the special adjudicator was entitled to find that there was no reason to suppose that the petitioner's being a Sikh, or his being a member of the AISSF, would in itself involve him in any harassment or adverse attention from the authorities amounting to persecution. The Lord Ordinary correctly noted that it was the special adjudicator's function to decide what inferences were properly to be drawn from the material before him. He rejected the proposition for the appellant that the reasonable and natural inference from the material before the special adjudicator was that the detention of the appellant was harassment by the police brought about solely because of the appellant's political activities, and therefore one which the special adjudicator was bound to draw. This was, of course, no more than a different way of reflecting the submission for the appellant put before us that the detentions were based upon false accusations in that there was no reason otherwise for the police to be conducting criminal investigations of the kind giving rise to the accusations. In the circumstances set out by the Lord Ordinary, we are entirely satisfied that the Lord Ordinary's conclusion as to what inferences were open to the special adjudicator has not been demonstrated to be wrong in law.
9. With regard to the material relating to the use made by the appellant of his passport in leaving without difficulty, when the passage in the determination of the special adjudicator is considered in the context of the whole of what he said, we can find no error in law in the Lord Ordinary's conclusion that the special adjudicator simply treated this material as supportive of the view that the appellant's detention was not to be inferred as prompted by political motives. Indeed, counsel for the appellant in the end of the day was constrained to accept that, at best for the appellant, the material was neutral. Counsel sought to lay stress on the passage in which the special adjudicator makes reference to the fact that the appellant did not seek to leave India until January 1995. We agree with the Lord Ordinary that, properly read in context, no adverse inference of the kind suggested was being taken by the special adjudicator. The proximity to his third arrest of the appellant's departure from India on his passport was clearly a matter which the special adjudicator had in mind when determining the question whether the appellant was at risk based on a well founded fear of persecution for a Convention reason.
10. Accordingly, we discern no error in law in the approach adopted by the Lord Ordinary in relation to the first two grounds of appeal.
11. The third ground of appeal concerns the documentation introduced by the letter from the appellant's solicitor dated 21 April 1997. Counsel for the appellant did not suggest that the Lord Ordinary had gone wrong in law in adopting his approach to the issue by reference to what was said in the unreported cases of Abdul Shakor Bhatti (6 November 1998) and Sohile Kashmire (26 November 1999). No submission was made to the effect that the decisions in these case were at odds with what had been said in the cases of Kaja or Karanakaran referred to in the ground of appeal. Certainly no mention is made by the special adjudicator of this documentation and no reason given by him why this was so. Counsel for the appellant invited us to look at very limited number of items drawn from the documentation. We have considered these items and the particular passages indicated within them, but no one item, nor the items taken together, could be said to be directly relevant and material to the actual situation of the appellant as a member of the AISSF. At best they related to the general situation in the Punjab. We can find no ground for criticism of the Lord Ordinary's conclusion that the special adjudicator in this case rejected the appellant's claim to asylum on the basis of the appellant's personal circumstances and that, for the intelligible reasons given by the special adjudicator, the appellant's own account, properly evaluated, did not bring him within the category of a refugee. That being so, it was unnecessary for the special adjudicator to make mention of material which was not relevant to the question which he had to determine.
12. For the above reasons we consider that there is no warrant for holding that the Lord Ordinary ought to have held that the special adjudicator had erred in law and that his determination had been unreasonable. Accordingly the Lord Ordinary's decision is sustained and the appeal fails.