Scottish Court of Session Decisions

Singh & Ors Re Decision of the Immigration Appeal Tribunal [2002] ScotCS 58 (5th March, 2002)

SECOND DIVISION, INNER HOUSE, COURT OF SESSION
Lord Justice Clerk Lord Hamilton Lord Reed	XA44/01, XA45/01, XA40/01 OPINION OF THE COURT delivered by LORD HAMILTON in APPEALS TO THE COURT OF SESSION under Section 9 of the Asylum and Immigration Appeals Act 1993 by CHINDER SINGH, HARJIT SINGH and ONKAR SINGH Appellants; against Decisions of the Immigration Appeal Tribunal dated 7 July, 1998 and intimated to the respective Appellants on 4 August, 1998 _______

 

 

Act: Bovey, Q.C., Blair; Lindsay, W.S. (for Gray & Co., Glasgow)

Alt: Lindsay; H.F. Macdiarmid, Solicitor to the Advocate General for Scotland

5 March 2002

1. These proceedings are appeals under section 9(1) of the Asylum and Immigration Appeals Act 1993 by Chinder Singh, Harjit Singh and Onkar Singh from final determinations by the Immigration Appeal Tribunal ("the Tribunal") all dated 7 July and intimated to the respective appellants on 4 August 1998 by which the Tribunal in each case refused an appeal by the relative appellant from a special adjudicator. Although the appeals to this court were not formally conjoined they were, in the circumstances later described, conveniently heard together, as were the appeal proceedings before the Tribunal. With the exception of an additional ground of appeal in the case of Chinder Singh, the appeals to this court raise the same issues.
2. Chinder Singh was born on 10 July 1945. He is an Indian national of Sikh origin. He arrived in the United Kingdom on 20 August 1991 and was granted leave to enter as a visitor for six months. On 26 November 1991 he applied for political asylum. His application was refused by the Secretary of State in June 1996, a direction then being given for his removal from the United Kingdom. He appealed to a special adjudicator against that determination. After sundry procedure, which it is unnecessary to describe, his appeal was heard by Mrs. R. Swanney. By a determination promulgated on 21 January 1998 she dismissed the appeal. Although Chinder Singh did not give oral evidence before the special adjudicator, she was able on the basis of his responses to a questionnaire and at interview to make certain findings in fact in respect of his claim for asylum. These included findings to the effect that Chinder Singh ran a tea shop in the Indian Punjab, that he was not and is not a member of any political party, that he was sought out by the Indian police to inform against members of the Khalistan Commando Force and the Bhinderwale Tiger Force (both militant Sikh organisations), that he was arrested and detained by the police on five occasions and that he was ill-treated by them while so detained. Mrs. Swanney further found that Chinder Singh's detention was for failing to do as the police asked (that is, failing to obtain information from the people who were visiting his tea shop). She concluded that his treatment by the police while detained amounted to torture. However, having addressed the issue of whether Chinder Singh had a well-founded fear of persecution if he were returned to the Punjab (where he came from) she concluded, on the material before her, that "There is no significant risk of the police, in present Punjab, seeking out the appellant and I find that on the basis of the evidence before me it is not reasonably likely that the appellant would be persecuted if returned to India". In these circumstances it was unnecessary for her to make a determination on the "internal flight alternative" issue which was also raised before her. However, having considered that issue, she stated "I am not satisfied that it would be unreasonable or unduly harsh to expect the appellant to seek safety in another part of India".
3. Harjit Singh was born on 10 March 1966 and is also of Indian nationality and Sikh origin. He apparently entered the United Kingdom clandestinely at about the beginning of March 1995. On 3 April 1995 he made a claim for asylum. This was refused by the Secretary of State by letter dated 8 August 1997. On 14 August 1997 Harjit Singh was served with a notice for removal to India. He appealed against these determinations to a special adjudicator. That appeal was heard by Mr. M.E. Deans who, by a determination promulgated on 6 November 1997, dismissed the appeal. Although no oral evidence was led before the special adjudicator he was able to make certain findings of fact on the written material presented. These included findings that Harjit Singh is a Sikh from the Indian Punjab and is a supporter of an independent Sikh homeland, that he has been a supporter of the Bhinderwale Tiger Force ("the BTF") since 1985, that he has put up posters for that organisation and willingly provided food and shelter to its members. Mr. Deans also found that as a result of these activities Harjit Singh was arrested twice in 1994 and detained by the police on each occasion for two to three days. During these detentions he was beaten up. He was charged with providing food and shelter for the BTF, but he was released after the village assembly intervened on his behalf and took responsibility for him. He went into hiding for some five or six months, during which time the police came to his house looking for him. His father was arrested by the police when they were looking for the appellant. Mr. Deans concluded that Harjit Singh had a well-founded fear of persecution were he to be returned to the Punjab. Having then considered the "internal flight alternative" Mr. Deans concluded that Harjit Singh had such an alternative. He observed "I am satisfied that the appellant could have sought safety in another part of India and given that he is a young single man I am not satisfied that it would be unreasonable or unduly harsh to expect him to have sought safety in another part of India". On that ground he dismissed the appeal.
4. Onkar Singh, who was born on 15 June 1965, is also a Sikh of Indian nationality from the Indian Punjab. He entered the United Kingdom clandestinely in May 1995 and applied for asylum in June of that year. In September 1997 the Secretary of State refused to grant him asylum and gave directions for his removal from the United Kingdom. He appealed against these determinations to a special adjudicator. That appeal was also heard by Mrs. R. Swanney who, by a determination promulgated on 30 January 1998, dismissed the appeal. Although no oral evidence was led before the special adjudicator she was able to make certain findings of fact on the basis of written materials. She accepted Onkar Singh's account of his history as credible. She found that he was a member of the All India Sikhs Student Federation, had become involved in attending its meetings on a regular basis and had helped to arrange such meetings and with leafleting and posters. She also found that as a result of his activities he had been arrested by the police on four occasions, on two of which he was physically ill-treated; he had also been threatened with death. Mrs. Swanney concluded that Onkar Singh's treatment by the police amounted to persecution. She was also satisfied that there was a possibility that, were he to be returned to the Punjab, he would be tortured or mistreated in custody. Although not stated expressly the implication of her conclusions on this aspect of the appeal was that Onkar Singh's fear of persecution if returned to the Punjab was well-founded. She then considered the "internal flight alternative". Having considered the materials before her she concluded that she was not satisfied that it would be unreasonable or unduly harsh to expect him to have sought safety in another part of India. For that reason she dismissed the appeal.
5. Each of Chinder Singh, Harjit Singh and Onkar Singh appealed under section 20 of the Immigration Act 1971 (as applied by the Asylum and Immigration Appeals Act 1993) to the Tribunal. It appears that a view was taken that these cases, together with two other related cases, might give rise to common questions of importance. Accordingly all five cases were listed to be heard together. In the event the two related cases were dealt with separately and nothing further need be said about them. The appeals of Chinder Singh, Harjit Singh and Onkar Singh were heard together before the Tribunal, initially constituted by five members comprising the then President, two legal members and two non-legal members. For reasons which it is unnecessary to discuss the two non-legal members withdrew before any decision was taken. The Tribunal, constituted by the then President and the two legal members, having heard the appeals in each case dismissed them. Against these determinations, Chinder Singh, Harjit Singh and Onkar Singh appeal to this court under section 9 of the 1993 Act which provides that any party to an appeal to the Tribunal may, where the Tribunal has made a final determination of an appeal to it, "bring a further appeal to [the Court of Session] on any question of law material to that determination".
6. Before the Tribunal there was no dispute about the personal history of any of the appellants. Their respective accounts of their experiences, which had in each case been held as credible by the relative special adjudicator, were accepted as accurate. Nor was it disputed that in the case of each of Harjit Singh and Onkar Singh he had a well-founded fear of persecution if returned to the Punjab. What was in issue was (1) whether, having regard to the circumstances of Chinder Singh in the context of conditions in the Punjab, he had a well-founded fear of persecution if returned there, (2) whether in the cases of Harjit Singh and of Onkar Singh the determination by the relative adjudicator that the appellant had an "internal flight alternative" was correct and (3) in relation to each of the appellants whether there was a risk, in the event of his being returned to India, that he would be persecuted by reason of having claimed asylum in this country (the "Senga" point). No oral testimony was led before the Tribunal. The case for all the appellants was presented by a solicitor with experience in this field of law, reliance being placed on various documentary materials. The Tribunal came to certain conclusions, the result of which was that they dismissed all the appeals.
7. Before us a written ground of appeal relative to the "internal flight alternative" was not pursued. Written grounds of appeal relative to the "Senga" point were also not pursued, except to the limited extent indicated hereafter. Mr. Bovey, who appeared for all three appellants, presented his submissions under reference to the remaining written grounds as formulated on behalf of Chinder Singh. These included one ground special to Chinder Singh (headed "sufficiency of protection") but the grounds were otherwise common to all three appellants. Although presented under various heads all the grounds of appeal pursued touched, at least to some extent, on the Tribunal's treatment of certain documentary material of which the author was Dr. Jasdev Singh Rai ("Dr. Rai").
8. The Tribunal had before it a substantial amount of documentary evidence bearing on the situation of Sikhs in India and in particular of those in the Indian Punjab. Among the documents presented by the appellant's solicitor were three documents emanating at some time from Dr. Rai. The first bore, albeit undated and unsworn, to be a fax of an "affidavit" by Dr. Rai setting out his personal history followed by a description by him of "The situation in Punjab". This document had been sent to a colleague of the appellants' solicitor in July 1996 by the Refugee Legal Centre, which had apparently obtained it earlier in connection with an appeal to the Tribunal in the case of another Sikh, Charanjit Singh (heard by the Tribunal in March 1996). The second of those documents was a statement by Dr. Rai entitled "STATEMENT WITH REFERENCE TO INTERNAL FLIGHT OPTION AVAILABLE TO THOSE RETURNED TO INDIA" obtained by the appellants' solicitor directly from Dr. Rai in connection with another appeal (by Jaswinder Singh and heard by the Tribunal in May 1997). The third was a statement by Dr. Rai, apparently dated 24 March 1998, given by him to the Refugee Legal Centre in connection with an appeal by an unidentified client of that Centre. None of these documents was prepared for the purposes of the appeals to the Tribunal by the present appellants. It seems that Dr. Rai had not authorised their use for the purposes of those appeals.
9. The Tribunal also had before it, among other materials, a document originating from Dr. Patricia Gossman, apparently a Research Associate at Human Rights Watch/Asia; this comprised an undated fax from Dr. Gossman to a person at the Refugee Legal Centre, together with a letter (which may be dated 19 January 1996) from Dr. Gossman to another person at the Refugee Centre and a curriculum vitae of Dr. Gossman. The Tribunal also had a statement dated 23 March 1998 (with accompanying curriculum vitae) from Dr. Cynthia Mahmood, an Associate Professor of Anthropology at the University of Maine and a letter dated 24 March 1998 from Dr. Marie Gillespie of the University of Wales to a person in the Refugee Legal Centre. It further had a document dated 17 February 1997 emanating from the Documentation Information and Research Branch of the Immigration and Refugee Board at Ottawa, Canada, summarising the results of information derived from "a panel of four specialists on the Punjab" concerning various aspects of the "human rights, peace and order situation" in that Indian state. These specialists were (1) Bob Brack, an official at the Canadian High Commission in New Delhi, (2) Laurence Brooks, an official of the Canadian Security Intelligence Service, (3) Gurinder Singh Mann, described as a specialist in the study of Sikhism with a teaching post at Columbia University, New York and as a person who had written extensively on Sikhs and Sikhism and who visited the Punjab regularly and (4) Ravi Nair, the Executive Director of the South Asia Human Rights Documentation Centre based in New Delhi and a former member of Amnesty International's International Secretariat.
10. In the course of its "Determination and Reasons" (which are in identical terms in relation to all three appellants) the Tribunal made reference to the observations of Brooke L.J. in Manzeke v. Secretary of State for the Home Department [1997] Imm. A.R. 524 at pp. 532-3 where his Lordship adverts with approval to a function of the Tribunal (apparently instituted under the chairmanship of Professor Jackson) designed to avoid inconsistency in decision-making by special adjudicators dealing with the same or much the same evidence in relation to conditions in a particular country during a particular period. That function was performed by the Tribunal in its decision in Senga (December 1995, unreported, Case 12842), where the Tribunal, having considered a large number of reports relating to the treatment of asylum seekers who had returned to Zaire in the years 1993-95, made four findings of general application to that situation. In the Determination and Reasons in the present cases there is a hint that the Tribunal may at least at some stage have envisaged that it might discharge a similar function in relation to the situation in the Punjab. In the event it did not do so. Albeit it reached certain conclusions on the material before it, it made no general findings in relation to that situation. Nothing which we say in this Opinion is intended to cast any doubt on the value of the type of exercise approved by Brooke L.J.
11. The evidence on which the appellants' solicitor primarily relied before the Tribunal comprised the three documents originating from Dr. Rai. That evidence conflicted, at least in some respects, with documentary material coming from other sources. The Tribunal accordingly required to evaluate it, including making an assessment on the materials before it of the credentials of Dr. Rai to speak with appropriate expertise and authority on the matters in issue. The Tribunal, while not rejecting the evidence originating from Dr. Rai in its entirety, concluded that it should not "be given much weight at all". In the third of these documents Dr. Rai had written that he had given evidence in various asylum appeals and that "my expert evidence has never been rejected". The Tribunal examined that statement and, while finding that Dr. Rai's views had indeed been relied on in a number of prior asylum cases before the Tribunal, concluded that it was not accurate to state that his evidence (at least in the broader sense including documentary material emanating from him) had never been rejected. While it had been accepted in the case of Charanjit Singh (Case No. 13375, May 1996), where Dr. Rai had given oral testimony, in all the other asylum cases examined in which (on a documentary basis) his evidence had been relied on, that evidence had been rejected.
12. Mr. Bovey submitted that the Tribunal had misdirected itself in its analysis of the earlier cases. In one of those (Rajinder Singh Parmar, April 1997), the evidence not accepted had originated from Dr. Patricia Gossman, not from Dr. Rai. In another case (Jaswinder Singh, June 1997) the Tribunal had not seriously criticised Dr. Rai's evidence; in any event, the Tribunal's decision in that case had been overturned on appeal (Singh v. Secretary of State for the Home Department 1999 S.C. 35). In another case (Jasvir Singh, September 1997), again the evidence rejected was not that of Dr. Rai but that of Dr. Gossman. In Balwant Singh (April 1998) the Tribunal appeared, again in the absence of Dr. Rai, to have followed Rajinder Singh Parmar and Jaswinder Singh. The Tribunal's decision in Tarlochan Singh, also relied on by it in this case, had been overturned on appeal (Tarlochan Singh v. Secretary of State for the Home Department [2000] Imm AR 36). In Kuldip Singh (April 1999), where the Tribunal had been chaired, as in the present case, by the then President and where the Tribunal had had the benefit of hearing directly from Dr. Rai, it had accepted his evidence. This amounted to a "recantation" by it. The Tribunal in this case had failed in making its analysis to recognise the importance of oral testimony (where Dr. Rai had been accepted). The decisions it had relied on were flawed.
13. In a related submission Mr. Bovey argued that the Tribunal had failed to treat in a balanced way the biographical material before it in relation to the authors of the documents presented. In particular its preference for the views of Dr. Nair over those of Dr. Rai was unfair and irrational.
14. In our view none of these submissions discloses any error of law material to the Tribunal's determinations. The appellants were represented before the Tribunal by a solicitor who, from his experience in such cases, knew the nature and quality of the evidence that would be required to support the appeals. He was bound to know from the numerous reported cases on the subject that the Tribunal's acceptance of evidence tendered as expert evidence as to conditions in the Punjab can never be taken for granted. In this case the appellants' solicitor chose to rest the appeals on statements made by Dr. Rai for other cases, in some instances heard more than a year earlier. The statements therefore contained no material that was specific to these appellants or was uniformly related to the up-to-date situation. It must therefore have been apparent to the appellant's solicitor that there was a risk that evidence of this nature would not carry weight with the Tribunal. The purpose, or at least the primary purpose, of the Tribunal's analysis of the earlier Tribunal cases was to examine Dr. Rai's assertion that his expert evidence had never been rejected. Such an examination was pertinent to its evaluation of the material of which he was the author and on which the appellants' solicitor relied. It subsequently transpired (from Dr. Rai's evidence in 1999 in Kuldip Singh) that Dr. Rai had not himself authorised the use of that material for the purposes of the cases of the present appellants and might, subject to further investigation, not have been willing to support the present appellants' cases. Although when Dr. Rai did give oral testimony before the Tribunal, as he had in Charanjit Singh and subsequently did in Kuldip Singh, he apparently impressed it, the Tribunal in the present case had to examine his assertion of the universal acceptance of his views on the basis of the information then before it. That information did not support that assertion. While his oral testimony in Charanjit Singh had, with other documentary material, including a report from Dr. Gossman, persuaded the Tribunal in that case to reverse the special adjudicator's determination on the matters there in issue, the information before the Tribunal in this case indicated that Dr. Rai's views (or views expressed by Dr. Gossman to the same effect) had been rejected by the Tribunal in subsequent cases. That information entitled it to have some pause when evaluating Dr. Rai's credentials. Its analysis of the earlier cases, while possibly open to some criticism, was not in our view fundamentally flawed. Likewise, it was entitled, as it did, to distinguish as being a case of a very different order the case of Chahal in the European Court of Human Rights where apparently Dr. Rai had also given accepted evidence.
15. The Tribunal, in discussing the nature of Dr. Rai's evidence, observed that the weight to be put on it depended on the confidence which the Tribunal could have on its author's expertise. In that connection it said "On what we have been told about Dr. Rai, it is extremely difficult to be so confident". That conclusion proceeded not only on material as to his prior acceptance or otherwise but also on the absence of other material to support his credentials. Reference is made by the Tribunal to the absence of a curriculum vitae of Dr. Rai and of other information about him, including any to the effect that he had recent and first-hand experience of conditions in India, such as might support his authority to express the views relied on. In these circumstances we are not satisfied that any error of law is disclosed in relation to the Tribunal's approach to the materials before it in respect of its evaluation of Dr. Rai as an expert. Likewise, its evaluation of the status as an expert of Dr. Nair, who expressed (again in documentary form) views different from those expressed by Dr. Rai, does not proceed upon any unfairness or irrationality. In short, the Tribunal was as the fact-finding tribunal entitled to conclude on the material before it in these appeals that Dr. Nair's views should be given more weight that those tendered from Dr. Rai. It is not for this court, in the absence of manifest error by the Tribunal, to substitute its own view on that material. In the event each of the appellants, on whom the onus of proof lay, failed to satisfy the Tribunal on reliable evidence of matters crucial to the success of his appeal.
16. Mr. Bovey also submitted that the Tribunal had acted in a procedurally unfair manner. This submission was first advanced in the context of a challenge to the Tribunal's disposal of a "Senga" contention, that is, that if the appellants were returned to any part of India they were at risk of being persecuted by reason of the fact that they were persons who had sought asylum in another country. Reference was made to the decision of one of our number (Lord Hamilton) in Kriba v. Secretary of State 1998 SLT 1113. The appellants' contentions on this aspect had, it was argued, been supported by material from a number of apparently responsible sources which had neither been contradicted by other evidence nor challenged by the respondent. The "principle" laid down in Kriba had been infringed by the Tribunal.
17. Mr. Lindsay, who appeared before us on behalf of the Secretary of State, did not challenge the correctness of the decision in Kriba but submitted that it turned on the particular circumstances of that case, including the fact that the Amnesty International Report there relied on highlighted a grave risk of torture if failed asylum seekers were returned to Algeria. The material in the present case was of a quite different order and had been carefully considered by the Tribunal. There was no procedural unfairness in the Tribunal reaching a decision in these cases without affording to the appellants an opportunity to adduce further material in support of this contention. They had been represented there by a solicitor experienced in this field who had not sought an adjournment for that purpose; nor was there a suggestion, even now, that further such material could be adduced.
18. We accept Mr. Lindsay's submissions on this point. Kriba cannot be regarded as laying down any principle. It was a decision taken in the particular circumstances of that case where there was material from a highly regarded source of grave persecution as a matter of standard practice perpetrated by a particular country on returned asylum seekers. The court took into account the special responsibility lying on it as described in R. v. Secretary of State for the Home Department, ex parte Bugdaycay [1987] AC 514. In the present case such material as was before the Tribunal concerning Sikh asylum seekers who had been returned to India was carefully considered by it. With the exception of the cases of one or possibly two individuals, there was no compelling evidence of the persecution of such persons on their return to places in India outside the Punjab. This was simply a case where the "Senga" contention failed for want of proof. The Tribunal, with its background of specialist knowledge and experience, was entitled to take the view that it was not reasonably likely that any of the appellants would, as asylum seekers, be persecuted on their return to New Delhi on emergency travel documents.
19. The final ground of appeal presented on behalf of all three appellants was that there had, more generally, been procedural unfairness in this case. Although counsel for the appellants referred us to numerous cases establishing that there is a principle of fairness in these cases and that it implies that a litigant should have proper access to the court or tribunal and a proper opportunity to present his case, his submission on the facts was based entirely on the fact that because of lack of funds the appellants could not have Dr. Rai give evidence in person. He argued that if Dr. Rai had appeared in person his evidence would have been given greater weight. Counsel for the appellants informed us that Dr. Rai had not been asked to appear; that the Scottish Legal Aid Board had not been asked to fund the cost of his appearance or of a report from him on this case; but that an additional sum had been made available to the appellants' solicitor under the Legal Advice and Assistance Scheme.
20. In our view, this ground of appeal is unsound. We cannot see that the Tribunal was in any way unfair to the appellants. None of the funding problems alluded to by counsel were brought to the Tribunal's notice. We are not persuaded on the meagre information given to us by counsel that the appellants were the victims of any unfairness in relation to the funding of the case. Both parties presented their respective cases before the Tribunal on the basis of documentary material only, a not uncommon procedural arrangement. We see no unfairness in such an arrangement under which, if adopted, the evaluation of material inevitably turns solely on documents. Both parties are subject to the same constraints. In our view, these appeals did not fail for lack of legal aid. They failed for lack of relevant and persuasive information. In any event, we are not prepared to conclude that Dr. Rai's presence at the appeal would have been to the appellants' advantage. His comments on this case at the Kuldip Singh hearing (April 1999, supra), at which he appeared in person, suggest to us that his support for these appeals was not to be assumed.
21. The ground of appeal special to Chinder Singh was presented by Mr. Bovey under the heading "Sufficiency of Protection". That ground is, however, in our view, in the circumstances of this case, misconceived. The concept of "sufficiency of protection" concerns situations where there is a sustained or systemic failure of protection by the home state against persecution by non-state forces in that state (Horvath v. Secretary of State for the Home Department [2001] AC 489; Wierzbicki v. Secretary of State for the Home Department [2001] Imm AR 602). It has no application where the allegation is of persecution by state bodies such as the police. In the latter situation, where it arises, the test is that of reasonable likelihood of persecution (R. v. Secretary of State for the Home Department, ex p. Sivakumaran [1988] AC 958). This ground of appeal is accordingly ill-founded.
22. In the whole circumstances we are not satisfied that in the case of any of the appellants the Tribunal erred on any question of law material to its determination. Each of these appeals must accordingly be refused.