Scottish Court of Session Decisions

Alam v. Secretary State Home Department [2003] ScotCS 110 (8 April 2003)

OUTER HOUSE, COURT OF SESSION
P989/01	OPINION OF LORD BONOMY in the Petition of MOHAMMED KHORSHEJUL ALAM Petitioner; against SECRETARY OF STATE FOR THE HOME DEPARTMENT Respondent; for Judicial Review of Decisions of a Special Adjudicator dated 16 July 2001     ________________

 

 

Petitioner: Devlin; Drummond Miller, W.S.

Respondent: Drummond; H. MacDiarmid

8 April 2003

1. The petitioner Mohammed Khorshejul Alam was born in Chittagong, Bangladesh, in July 1965. He is married with two children. He lived in Bangladesh until 12 May 2000 when he flew from Dhaka to London. He claimed asylum on arrival on 13 May 2000. His claim for asylum was based on the assertion that he had a well-founded fear of persecution in Bangladesh because he had been harassed by supporters of the Awami League due to his position as organising secretary of the opposition Bangladeshi Nationalist Party (BNP).
2. The respondent refused the application for asylum and stated a number of reasons. The petitioner appealed and that appeal was determined by the Immigration Adjudicator on 16 July 2001. The petitioner now seeks reduction of that determination and in doing so criticises the Adjudicator's reasoning as not entitling her to refuse the appeal.
3. Proper analysis of the petitioner's case requires identification of the Adjudicator's reasons for determining the appeal as she did. After reviewing the petitioner's immigration history, the accounts given by the petitioner in his initial asylum interview and his evidence, summarising the submissions made on behalf of the appellant and the respondent, and describing the country situation in Bangladesh in light of the Bangladesh Country Assessment of October 2000 by the Home Office Country Information and Policy Unit and a United States Department of State Country Report on Human Rights Practices in Bangladesh in 2000, the Adjudicator then proceeded to assess the petitioner's account of his case and reach a conclusion on the appeal. The "Conclusions and Determination" section of the Adjudicator's determination sets out the decision to refuse the appeal and the ground on which that decision was based. The ground is set out in these terms:

"[48] The appellant has failed to establish that he has a history of harassment or ill-treatment amounting to persecution for a Convention reason. He has failed to establish that he is currently of interest to the Bangladesh Authorities. He has therefore failed to establish that there is a reasonable degree of likelihood that he would be persecuted for a Convention reason if returned to his own country."

The Adjudicator's reasons for coming to that conclusion are contained in the preceding section, "Assessment of the Appellant's Account", in paragraphs 42 to 47 of the determination.

4. At paragraph 44 the Adjudicator sets out the appellant's case at its highest in these terms:

"[44] The claim before me at its highest, showed that the appellant had a subjective fear of ill-treatment based on a number of uncertain events, namely if he were detained by the police, the Organising Secretary of the local Awami League was advised and choosing to act on the information, chose to gain access to him, having gained access the Awami League members chose to ill-treat him, and the police officers chose to turn a blind eye to any wrongdoing by the Awami League members."

That paragraph is not elegantly expressed. It is clear from the context, however, that the Adjudicator was recording what the petitioner feared might happen to him if he were to be detained. She is there expressing what the petitioner's case amounts to at its highest; that is what he believed might happen, but had not actually happened on any occasion.

5. In paragraphs 45 and 46 the Adjudicator then explains why she holds that to be the high point of the petitioner's case. She explains in paragraph 45 that she has left out of account a letter which the petitioner claimed was written by a solicitor who acted for him and which stated that he had been convicted and sentenced in absence on charges trumped up by the police. It was not suggested for the petitioner that the Adjudicator was not entitled to exclude that evidence. In paragraph 46 the Adjudicator explains why she considers that the petitioner's evidence about his activities and the beliefs of his political party was so scanty and lacking in detail as to be inconsistent with his assertion that he was an activist of interest to the Awami League and through them to the police. In that paragraph the Adjudicator mistakenly refers to paragraphs 33 to 38 instead of 36 to 41. Having dealt with the letter and with the evidence about the petitioner's position in the party, the Adjudicator goes on to explain in paragraph 47 that she did not find the petitioner to be a credible witness and could not regard as credible his assertions that he had been an active organising secretary of the BNP since 1995.
6. That led her to the conclusion, which I have already quoted above, that the petitioner had failed to establish that he had been ill-treated or that he was of interest to the Bangladesh authorities, and that there was, therefore, no reasonable degree of likelihood that he would be persecuted for a Convention reason if returned to his own country.
7. The first submission of Mr Devlin, counsel for the petitioner, was that the Adjudicator's overall approach to analysis of the material presented to her was incorrect. The Adjudicator had acted unreasonably in determining that the petitioner had failed to establish a reasonable degree of likelihood of persecution if returned to Bangladesh. That was because the Adjudicator had not entirely followed the approach set out in Karanakaran v Secretary of State for the Home Department [2000] 3 All ER 449 at 468-470. Although the Adjudicator had applied the correct test of a "reasonable degree of likelihood" of persecution, she had failed to consider the possibility that her findings in fact might be incorrect. Her findings were not such that it could be said she was in no reasonable doubt about them, nor were the circumstances such that she was entitled to have no reasonable doubt about her findings. Examples of the application of these principles could be found in the Opinion of Lord Mackay of Drumadoon in Nazim Sattar v Secretary of State for the Home Department 2001 SCLR 748 at paras. 17 and 23, and in the judgment of the Federal Court of Australia in W321/01A v Minister for Immigration and Multicultural Affairs [2002] F.C.A. 210. Under reference to R. v Home Secretary, ex parte Bugdaycay [1987] AC 514 at 531F to G and 537H to 538A counsel also invited me to subject the Adjudicator's reasoning to "anxious scrutiny", as contrasted with what he described as "benevolent scrutiny" which was appropriate in other contexts such as planning, because this case involved fundamental human rights.
8. Miss Drummond, counsel for the respondent, was content that I should apply the "anxious scrutiny" standard and review the Adjudicator's determination rigorously, but stressed that the question remained whether the process of reasoning by which the Adjudicator reached her determination failed the Wednesbury reasonableness test - see Associated Provisional Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223. As a result of that concession, I proceeded to subject the Adjudicator's reasoning to rigorous scrutiny.
9. Mrs Drummond then invited me to conclude that in paragraph 46 the Adjudicator demonstrated clearly in her assessment of the appellant's account and in her conclusions and determination that she had no real doubt that the petitioner was not being truthful when he claimed to be an active organising secretary of the BNP. The Adjudicator had evaluated all the material before her "in the round" as desiderated by Sedley L.J. in Karanakaran at 479b to 480a, founding on the opinion of Simon Brown L.J. in R. v Secretary of State for the Home Department, ex parte Ravishandran [1996] Imm AR 97 at 109.
10. In my opinion counsel for the respondent was well founded in submitting that the Adjudicator was in no real doubt that the petitioner's evidence about his active role in the party was not credible. She said so clearly in her determination.
11. The real issue in this case is whether the Adjudicator was entitled to come to that conclusion for the reasons she gives. Counsel for the respondent invited me to look at the matter broadly. She submitted that, as long as the decision could be rationally supported and was reasonable in the Wednesbury sense, then it could not be interfered with by the Court, no matter what different views the Court might have. She pointed out that paragraph 2 of the determination made it clear that the petitioner's claim was based on his being an organising secretary for the party, that in paragraph 10 the Adjudicator explained what evidence she had considered, that she had set that evidence out accurately and in detail, that she had reflected the challenges made to the petitioner's evidence and his responses (paragraphs 24 to 28) and that she had taken account of material in the country reports. The Adjudicator had then assessed the petitioner's credibility between paragraph 42 and paragraph 47. Counsel submitted that, against that background, it would be wrong to conclude that the only factors considered which led to the Adjudicator determining that the petitioner's claim to be a party activist was not credible were those set out in paragraph 46. That was clear from the reference in paragraph 46 to earlier paragraphs containing material from the country reports. In addition the respondent's original decision letter had made it clear in paragraph 11 that the petitioner's claim to be an organising secretary was not accepted. The petitioner was on notice that he had to display a degree of knowledge consistent with his claim to be such an activist.
12. Paragraphs 46 and 47 of the Adjudicator's determination are in these terms:

"[46] The appellant's evidence about his activities and the beliefs of his party is scanty given the objective evidence contained in the Country reports and set out in paras 33-38 above. He failed to mention the halal or general strikes by the BNP. He failed to mention the December 1999 marches by opposition activists in the Chittagong and created instead the picture of a party losing supporters due to successful intimidation by the Awami League. I accept the respondent's submission that his lack of detail is not consistent with his assertion that he was an activist of interest to the Awami League and through them to the police.

[47] Taking into account the contents of the statement lodged, the oral evidence and the Asylum Interview Record I was not satisfied that the appellant was a credible witness. I accepted that he was a member of the BNP. Because the appellant demonstrated such a limited grasp of the political concepts of the party both in his oral evidence and at the Asylum Interview, I could not regard as credible his assertions that he had been an active Organising Secretary since 1995."

What the Adjudicator was plainly seeking was some evidence indicating a basis for concluding that the petitioner could be the subject of persecution were he to return to Bangladesh. She reviewed the material before her for some evidence that the petitioner had done something that so agitated his opponents that they wished to take physical measures against him. It was made plain by the respondent in the original decision letter that his claim to be an activist of interest to the Awami League was in issue. Having said at his asylum interview that he organised meetings, distributed work among members, like hiring a car and asking people to recruit members and inviting them for meetings, he added nothing in his evidence before the Adjudicator. His evidence was confined to "organising" meetings, albeit contrary to the wishes of his counterpart in the Awami League Party. He was able to specify no differences between the policies of the two parties. He made no mention of specific activities of the BNP that he was involved in and which would be likely to cause the Awami League to seek him out and take action against him. In these circumstances the Adjudicator was entitled, in my opinion, to conclude that the petitioner lacked the detailed knowledge that would be expected of any activist who would be of interest to an opponent intent on persecution. She had a substantial basis for doing so, and did not proceed on the fragile basis envisaged in Kananakaran at 469-470. The Adjudicator was, therefore, entitled to hold and be in no real doubt that the petitioner's evidence was not consistent with the claim that he was an activist of interest to an opponent intent upon persecution.

13. Counsel for the petitioner made the further submission that it was inappropriate for the Adjudicator to take account of the failure to mention the events of November and December 1999, since no question had been asked about them, and since it is wrong in principle to apply to a foreign national seeking asylum the same test as to what one would expect to be disclosed as might be applied in a case involving an applicant familiar with the legal system and customs of the country - see Kasolo v The Secretary of State for the Home Department, Immigration Appeal Tribunal Appeal No. 13190. Counsel also pointed out that one of the November 1999 incidents was said to have occurred in Dhaka after the petitioner had left Dhaka. The Adjudicator had, therefore, taken account of material which was not relevant to the decision in issue.
14. I consider that submission to be misconceived. The issue in the present case was not, as in Kasolo, one of making a determination of credibility based on inconsistencies between earlier and later statements. The issue which the Adjudicator in the present case was addressing was the sufficiency of the petitioner's knowledge to give credence to his claim to be a political activist. The petitioner was well aware that that was an issue in the appeal. In paragraph 46 the Adjudicator sets out the deficiencies in that knowledge and makes reference to events that she would have expected to be within the knowledge of the petitioner. They are examples of what might have been said to give credence to his claim.
15. Counsel for the petitioner's initial formulation of this submission was that the Adjudicator was not entitled to rely on the petitioner's failure to mention something without putting the omission to him. In the event counsel was unable to cite any authority in support of that proposition and abandoned the argument.
16. It is a surprising feature of the Adjudicator's determination that she did not apparently rely, in making her determination on the credibility of the petitioner's claim about his role in the party, on the many discrepancies in the petitioner's knowledge of political affairs in Bangladesh identified in the respondent's decision letter, particularly at paragraph 11, nor on the finding she made in paragraph 52 that the solicitor's letter was manifestly false, nor on any other discrepancies between the petitioner's asylum interview and his evidence. In spite of that the Adjudicator was entitled to make the findings she did on the strength of the material she relied upon.
17. The final submission of counsel for the petitioner was that the Adjudicator had failed to take account of all relevant considerations. This submission was made with reference to the threats of punishment referred to in the petitioner's evidence recorded particularly at paragraph 18 of the determination. There are no averments to support this argument. An attempt was made shortly before this first hearing to amend the petition and add such averments. The Court refused to allow the minute to be received. Counsel for the petitioner submitted that, because the threats were mentioned in paragraph 5 of the petition, he was entitled to make submissions about them, albeit paragraph 7 containing the grounds on which the petitioner sought reduction of the determination did not include any reference to them. Counsel for the respondent submitted, quite simply, that the matter did not arise in the absence of averments. The question was complicated by the fact that the Adjudicator had made decisions about credibility which were relevant to how the issue of threats should be viewed. Indeed the Adjudicator's decisions on credibility might be a complete answer to the point. However, the issue required to be focused by averments to allow it to be properly debated and determined.
18. In my opinion it is not appropriate to consider and determine this issue which is not part of the case made by the petitioner in the petition which was presented to the Court as far back as August 2001.
19. In the event I shall sustain the respondent's third plea-in-law to the extent of holding that the Adjudicator neither erred in law nor acted unreasonably, and shall repel the first plea-in-law for the petitioner and refuse the petition. It is not necessary to deal with the other pleas.