Scottish Court of Session Decisions

Rahman, Re Judicial Review [2003] ScotCS 22 (30 January 2003)

OUTER HOUSE, COURT OF SESSION
P890/02	OPINION OF LORD McEWAN in the Petition of PULAK RAHMAN Petitioner; for Judicial Review of a (First) determination of the Adjudicator to refuse his appeal and (Second) determination of the Immigration Appeal Tribunal to refuse him leave to appeal against the determination of the Adjudicator ________________

 

 

Petitioner: Govier, Skene Edwards, W.S.

Respondent: Ms Drummond, H F Macdiarmid, Office of Solicitor to Advocate General

30 January 2003

1. Mr Rahman is a refugee from Bangladesh. He came here in 1997 and sought to remain for a Convention reason (viz. political opinion). (I deal later with the Convention). The Secretary of State for the Home Department refused his application for asylum by decision dated 2 January 2001. The petitioner appealed to the Adjudicator who, on 14 February 2002 refused his appeal. An application for leave to appeal to the Immigration Appeal Tribunal was refused by determination dated 14 March 2002. Thereafter the Secretary of State made removal directions to be effected on 24 July. Against the decision of the Adjudicator and the Immigration Appeal Tribunal this judicial review is taken. It was agreed that if the Adjudicator's determination were to be reduced, so should the Appeal Tribunal's refusal of leave and the removal directions.
2. Let me turn first to the essentials of what is averred in the Petition. It begins by stating that the respondent refused the petitioner's application for asylum and subsequent appeals to the Adjudicator and the Appeal Tribunal confirmed that refusal. In Article 5 it goes on to say that the petitioner who is now 27, at the age of 19 became the secretary for the Freedom Party at a college in Bangladesh. When he and his party demonstrated, opponents instigated violence. The police had tried to arrest him. In 1996, after a general election, another party called the Awami League were elected to power. At a demonstration, they, with police help attacked a demonstration of the Freedom Party in which the petitioner was taking part. A bomb was thrown and he was injured. After he left hospital the police tried to arrest him and went to his house many times. He evaded them. He was warned and threatened to stop his political activities many times. In February 1997 he stood for office at his College Union. In March the Awami League attacked an election march and rally. Shots were fired and he fled, thinking he was a target of the League and in fear of his life. Via India and the Ukraine he came to the United Kingdom and sought asylum.
3. It is not necessary to deal further with the petition save to note that the only complaints now made are twofold viz, a failure to take account of police interest and his difficulties with the Awami League. A number of other matters are raised in the body of the Petition eg. onus of proof but these were not argued.
4. The Determination (No.6/1 of process) is dated 14 February 2002, and I now turn to look at this. It is lengthy and detailed and I need only summarise the essential parts of it. It sub-divides easily.
5. The determination begins (para.2) by setting out the tests to be met before fear of persecution is established. The Adjudicator finds that it is only necessary to demonstrate "....a reasonable degree of likelihood..." of being persecuted. The standard of this degree applies to the "...whole question..." of the existence of a well founded fear of persecution for a Convention reason (in this case political opinion). He goes on to say that everything has to be looked at "....in the round...".
6. He then says what the evidence was which included "in country" reports, productions, letters, the appellant's witness statement and his oral evidence. In paragraphs 6 to 8 he sets out the appellant's account which I can summarise as follows. He was the secretary of the Freedom Party at his college of further education; recruiting, organising and being involved in meetings and some 50 demonstrations. Violence, gunfire and bombs characterise such demonstrations. The Awami League (a major political party in Bangladesh) raised a legal action against the Freedom Party who countersued. The police tried to arrest the appellant who hid himself. The 1996 General Election was won by the Awami League and in a subsequent demonstration they and the police attacked the demonstration. The petitioner was injured by a Molotov cocktail bomb, lost two fingers and was in hospital. On his release the police again tried to arrest him but he eluded them. After similar trouble at a later demonstration the appellant escaped to the United Kingdom.
7. Having narrated the submissions the Adjudicator in paragraphs 12 to 24 states how he assesses the evidence in terms of the tests which he set himself in paragraph 2. He accepts the "in country" reports (paragraphs 13 to 17). It is a depressing picture. Then he deals with the appellant's account. He begins by saying that what he described "could have happened in Bangladesh". He does accept his injuries and how they were caused. Subsequent events, when he examined and tested them, caused the Adjudicator more difficulty. He looks closely at the evidence and finds discrepancies and inconsistencies. He concludes that he can give no credence to the account of the events which led to him having to leave Bangladesh.
8. It is quite clear from the way paragraph 25 is set out that all matters spoken to by the appellant have been carefully considered and, for detailed reasons, not believed (except for the injuries). In paragraph 26 the Adjudicator addresses the issues of police interest and Awami League targeting. He says that he has looked at the evidence in the round and that it does not establish a real risk of persecution for a Convention reason.
9. At the hearing before me four cases were canvassed, viz. Karanakaran v Secretary of State for the Home Department [2000] 3411 E.R. 449; Nazim Sattar Petr 2001 SCLR 748; Singh v Secretary of State for the Home Dept. 2000 S.C. 219; Wordie Property v Secretary of State for Scotland 1984 SLT 345.
10. Mr Govier argued that I should sustain his first plea-in-law and send the case back for adjudication by a different adjudicator. He made three points. The first was that the Adjudicator had failed to take into account the possibility that the petitioner was of interest to the police in Bangladesh in his assessment of the future risk to the petitioner. The second was that he failed to address the issue of the threat posed to the petitioner by the Awami League or its relevance to the petitioner's claims for asylum. Thirdly, in failing to do either or both of these he erred in law and his determination should be reduced.
11. He then referred me to Mr Pieri's decision (No 6/1) and read the background matters to paragraph 16. He pointed out that paragraph 17 was not now in issue. He then referred to paragraphs 21-24 and criticised the Adjudicator's approach to assessing past happenings and future risks. He said he had not considered all material matters. I was referred to Karanakaran v Secretary of State for the Home Department [2000] 3 AllER 449 at 469H. The Adjudicator had only considered the facts that related to the police without reference to the Awami League. He also referred to Nazim Sattar 2001 SCLR 748. There were always evidential problems for asylum seekers. Often things had to be done at speed. Frequently there was lack of evidence and so he should not have readily rejected the possibility that things might be true. He had failed to say that he had borne this possibility in mind.
12. Negatively, the Adjudicator had not addressed the chapter of evidence relating to the Awami League. He failed to consider whether it amounted to persecution and that important factor had been ignored. Counsel referred me to the opinion of Lord Emslie in Wordie Property v Secretary of State for Scotland 1984 S.L.T. 345 at 347-8. There was here a real and substantial doubt as to what were his reasons.
13. For the Secretary of State, Miss Drummond invited me to dismiss the petition by repelling the petitioner's pleas. Here no challenge had been made on reasonableness and the matter was confined to whether there was an error in law in the two aspects argued. Here it was plain that the Adjudicator had considered both the police interest and that of the Awami League when addressing the question of whether there was a Convention reason. She referred me to Immigration Law and Practice: McDonald (5th Ed.) page 482. No matter had been discarded. She referred me to the detail in paragraphs 12.26 to 12.28 and to what was said in Karanakaran at 479B. Here the unitary evaluative process had been carried out as desiderated by Sedley LJ.
14. She then referred me to Singh v Secretary of State 2000 S.C. 219 at 222-3. She pointed out that in that case the applicant had not given evidence whereas here he had. In the present case it was not correct to say that the Adjudicator had failed to address the question of police interest and the threat by the Awami League. On these matters the Adjudicator had simply not found the applicant to be credible; accepting only from him that he had been injured. She referred me in detail to the Determination of 14 February (No 6/1 of process) and paragraphs 13-24. This was his analysis of the evidence which was set out in paragraphs 5-9. It was quite clear from paragraph 25 that he had considered everything including bare possibilities. He was entitled to outline uncertainties in applying the unitary process. He had not drawn individual conclusions from separate items as had happened in Sattar. His approach was consistent with what was approved in Singh.
15. Counsel then referred me to the proceedings before the Appeal Tribunal where leave was refused on the basis that there was no real prospect of success. The importance of that was, she said, that at that stage no error in law was detected. She invited me to sustain her pleas and repel those of Mr Govier.
16. The United Nations Convention and Protocol relating to the Status of Refugees provides, inter alia, that: Article 1A

"... The terms 'refugee' shall apply to any person who.... (2) owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country....".

17. Let me turn briefly to the authorities cited.
18. Singh was a case where the adjudicator had no oral evidence from the applicant, but his statement to the Immigration Official was accepted as true. It was clear to the Lord Ordinary that the adjudicator had given proper reasons and what were the material considerations which were the basis of these reasons. The Inner House pointed out that the extent of reasons may vary and may depend on the amount of evidence available. The details of the case turned on what protection the state of the Punjab could afford to its citizens. The importance of this case relates to reasons and their adequacy. That point arises in the case before me but in a slightly different way. Sattar was a case where the adjudicator gave her decision at a time before Karanakaran was decided. Her decision was flawed because she had sub-divided her inquiry rather than considering it in the round. She may also have fallen into error by misunderstanding a leading authority before Karanakaran.
19. Interestingly, but obiter, the Lord Ordinary concluded his judgment by supporting the adjudicator's finding in a number of other areas (though rejecting her views on several separate issues).
20. The rules in Wordie are now so well known that I do not need to discuss them at all.
21. Finally there is Karanakaran. The facts are straightforward. The decision is anything but straightforward. It is complex, closely argued and analysed and in places not easy to follow. What happened was this. The refugee was a Tamil from the Jaffna area of Sri Lanka. His community was destroyed by the civil conflict in that country and he had to leave his home area in fear of both the government forces and the terrorist movement. After many dangerous adventures he reached the United Kingdom. The Convention reason prompting his claim for asylum was persecution by reason of race. The issue before the Special Adjudicator and the tribunal was whether the availability of internal flight (or relocation) was an answer to his claim. There was before them a body of highly relevant evidence of "in-country" conditions from four experts with respectable credentials. That had been dismissed as pure speculation.
22. The Court of Appeal remitted the matter for a rehearing because this evidence had been wrongly rejected and because both lower bodies had not approached the legal issues in the proper way. I do not propose to say much more about this important case save this. It is clear from the two leading judgments that no question of burden or standard of proof arises in this area where there are many uncertainties and there has to be much speculation. The process is evaluative and not factual. It raises a single composite question and has to be looked at in the round. I take most of this from the final pages of the opinion of Sedley LJ. (especially at 479). In particular I also draw attention to what was also said in the leading judgment by Brooke LJ at 459j where he sets out four acceptable ways of assessing evidence open to a decision maker considering the single composite question.
23. Finally I have to notice the position of the Immigration Appeal Tribunal since both the first and second pleas-in-law for the petitioner are also directed at its decision to refuse leave to appeal. No separate argument was presented about this, indeed no argument at all. In my view the decision of the Appeal Tribunal has to be treated as on all fours with that of the determination and dependent upon its validity.
24. In my opinion the Adjudicator correctly assessed the evidence against the proper standard of proof i.e. a reasonable degree of likelihood. Having made this conclusion he then asked himself the correct question in law and reached the correct answer (which was inevitable). He has not fallen into the trap of assessing the appellant's various experiences independently of each other but has considered them all together. In my view a fair reading of what the Adjudicator has done here is to conclude that he had no real doubt that the claimed events did not happen, and his dual fears were unfounded. This is to act within the decision in Karanakaran (see 468/9). It is quite clear from paragraph 25 that all "the events" have been considered and not accepted (save one). Returning briefly in Karanakaran, what this adjudicator has done is, on the two material matters, to find that the evidence was such that he could attach no credence at all to it. Such an approach is open to him within Karanakaran 459j (category 4). I do not read that authority as requiring any adjudicator to say why he does not consider the evidence capable of falling into the other categories. He has given clear analytical reasons and no informed reader could be in any real or substantial doubt what they were or what material considerations were used to reach them.
25. In that situation it cannot be argued that the Adjudicator has failed to take account of relevant matters (i.e. the police and the Awami League) which would make his determination Wednesbury unsound. In the result the various determinations complained of are not unsound nor are they liable to suffer reduction. They disclose no error in law or failure to take account of material considerations. No challenge was made on grounds of reasonableness. I will accordingly repel the pleas-in-law for the Petitioner and, as requested, sustain all the pleas for the Respondent. I will appoint the case to be out By Order so that parties can be heard on questions of expenses.