Scottish Court of Session Decisions

Saha, Re Petition for Judicial Review [2003] ScotCS 32 (13 February 2003)

OUTER HOUSE, COURT OF SESSION

P206/01

OPINION OF LORD EMSLIE in the Petition of DEBRAJIT KUMAR SAHA Petitioner; for Judicial Review of (i) a decision by the Secretary of State for the Home Department to refuse his application for asylum in the United Kingdom; (ii) a determination of the Special Adjudicator to refuse his appeal; and (iii) the decision of the Immigration Appeal Tribunal to refuse him to leave to appeal   ________________

 

 

 

Petitioner: Govier; Skene Edwards, W.S.,

Respondent: Carmichael; H F Macdiarmid, Solicitor to the Advocate General for Scotland

 

13 February 2003

Introduction

1. The petitioner was born on 2 October 1967, and is a national of Bangladesh. In the course of 1997, he left that country, and after spending some time in India, Holland and Belgium he entered the United Kingdom during February 1998. In about May 1998, the petitioner applied for asylum in the United Kingdom.
2. By decision dated 22 July 2000, the Secretary of State for the Home Department (hereinafter referred to as "the respondent") refused the petitioner's application. By determination dated 5 December 2000, a Special Adjudicator refused the petitioner's appeal against the respondent's decision. By determination dated 10 January 2001, the Immigration Appeal Tribunal refused the petitioner's application for leave to appeal against the decision of the Special Adjudicator. The respondent subsequently issued removal directions against the petitioner, and ad interim the petitioner was detained in prison.
3. In this petition for judicial review, the petitioner seeks reduction of (i) the determination of the Special Adjudicator dismissing his appeal; and (ii) the decision of the Immigration Appeal Tribunal refusing him leave to appeal further. Following the usual First Order, Answers were lodged by the respondent through the office of the Advocate General for Scotland. At an earlier stage, the petitioner also sought judicial review of certain other decisions, including the decision to detain him, but these issues were no longer live by the time the First Hearing on the Petition and Answers took place before me on 31 January 2003.
4. So far as material for present purposes, the determination of the Special Adjudicator was in the following terms:

"Framework of this Appeal

4. It is for the appellant to establish his case. The standard of proof is however not a high one. It is lower than the normal civil standard. For the appellant to succeed he has to show that owing to a well founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion he 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. For the appellant's fear to be well founded he only has to demonstrate a reasonable degree of likelihood of being persecuted for a Convention reason if returned to his country. This standard of a reasonable degree of likelihood also applies to past events and to the whole question of the existence of a well founded fear of persecution for a Convention reason. The standard has sometimes been described as that of a real risk. This question of whether a person has a well founded fear of persecution for a Convention reason has to be looked at in the round in the light of all the relevant circumstances. Further in determining this appeal I am not restricted to those facts and circumstances prevailing at the time of the decision appealed against.

The Evidence

5. The evidence in this case is made up of the Form PF1 and bundles of papers and annexes attached to that, two bundles of documents marked bundle A and bundle B, lodged by the appellant, the CIPU Country Assessment on Bangladesh lodged by the respondent and the appellant's oral evidence. The appellant gave his oral evidence through an interpreter having affirmed. I have noted that oral evidence and the notes of that evidence are with the papers.

Background

6. I shall give here a brief summary of the appellant's account to give the background to this claim.

7. The appellant was an ordinary but active member of the BNP. He conducted and arranged a demonstration for the BNP during which there was a battle with members of the Awami League and a member of the Awami League died. About a month or so following this incident the appellant was arrested and detained for a month. On his release he went to stay with a cousin in another area. He had been threatened while in custody. While he was in hiding with his cousin he learned through his brother that the authorities were again looking for him. He was not very sure why this was so but assumed it was because of his connection with the BNP. After some months he managed to arrange his escape from Bangladesh and had travelled to the United Kingdom. He fears persecution both at the hands of the police and at the hands of members of the Awami League were he be (sic) returned to Bangladesh now.

......

Assessment of Evidence, Decision and Reasons

11. [Supported by further narrative in paras.12 and 13]. I shall deal first of all with the objective evidence lodged. The appellant has lodged an Amnesty International news release, the Amnesty International Annual report on Bangladesh and the US Department of State Human Rights report on Bangladesh. I accept these documents. They have been prepared by recognised providers of objective material on a number of parts of the world. I also accept the Country Assessment on Bangladesh. Although not strictly speaking objective given its source it does not differ in any material respect from the other objective reports lodged. Taking an overview of this material I conclude that there is at the very least a real risk that Human Rights abuses have occurred in Bangladesh.

........

14. Against that background I shall now turn to the appellant's account. His account is consistent with the account contained in the objective evidence and that is in his favour. The core elements of the appellant's account have also remained consistent and he has produced documents bearing to support his account. These again are matters in his favour. These matters are not however determinative.

15. A crucial factor in the appellant's claim for asylum is his claim to have been arrested after a member of the Awami League had died during trouble at a demonstration. In his interview (C5 of the bundle attached to the PF1) the appellant states 'they thought I was the main leader on that day'. At C7 he states that he was at home when the incident took place. In his oral evidence before me the appellant stated that he conducted the demonstration in question. Cross-examined he confirmed that he was not present when the trouble started at the demonstration and that he was at home. When he asked why he should have gone home when he had conducted the demonstration the appellant stated that when the demonstration started he came out of it. I have to record that I would not normally expect a person who conducted a demonstration to leave it as soon as it started.

16. On several occasions during his oral evidence the appellant stated that he was an ordinary but active member of the BNP. In cross-examination he was asked whether he was involved in any committees or led any specific area of the party. He replied that he was a committee member for his area and was connected with members of other districts. The appellant has produced a number of letters in support of his claim. These are to be found in bundle A for the appellant. Letter number 3, which is dated 24^th September 2000 states 'he is our devoted worker and the leader of the youth BNP sector'. This letter was put to the appellant in cross examination. The appellant dealt with it by stating that he did not think he had to mention that he was a youth leader separately. I find it surprising that if the appellant was a BNP youth leader he did not mention that before the letter was put to him. He had ample opportunity during his oral evidence in my view to reveal that he was a BNP youth leader when he was asked questions about his involvement in the party and specifically whether he led any area of the party. He did not mention that he was youth leader at interview. If the appellant was the leader of the BNP youth sector I would have expected him to say so before the letter was put to him in cross examination. Not only did he not do so he frequently referred to himself as an ordinary but active member of the Party. I do not accept in the context of the questions which the appellant was asked in oral evidence, the answers which he gave and in the context of an asylum claim that the appellant did not think he had to mention the fact that he was a youth leader separately. I consider all of this indicative of the appellant being untruthful.

17. Further in his oral evidence the appellant accepted that on 11^th May 2000 he had gone to Inverness from Edinburgh with a false Portuguese passport to obtain a National Insurance number. This venture had not been successful and he had been arrested. The appellant's explanation for this was that he was desperate for work. I recognise that asylum seekers do not have an easy time of it. On the other hand the fact that the appellant obtained a false passport and travelled from Edinburgh to Inverness in an effort to obtain a National Insurance number shows a degree of planning which in my view says little for his overall reliability and credibility.

18. Further, in general, I would expect a person fleeing persecution in his home country to seek asylum in a safe country soon after arriving there. The appellant accepted at interview and also in his oral evidence that he did not claim asylum in Belgium. He had been there for about a week. He gave as his reasons for this failure the fact that he did not know anybody in Belgium and did not speak the language. While he did not speak English very well he knew that there was a large Bangladeshi community in (sic) United Kingdom. When he arrived in the United Kingdom he states that he first of all travelled to Inverness and then claimed asylum some three or four months later through a solicitor (C20 and C21). The respondent claims never to have received that application for asylum. I give that claim by the respondent no weight however as there is with the a papers an undated letter from Global Immigration Consultancy (A3) in which that organisation state that they have made an application for asylum on the appellant's behalf. I do however consider it surprising that the appellant having failed to claim asylum in Belgium then delayed, by his own account, for some three or four months before claiming asylum in the United Kingdom. That is not how I would in general expect a person seeking international protection to act. I consider it indicative of the appellant having some reason other than a desire to seek international protection from persecution for coming to the United Kingdom.

19. Looking at all of these factors in the round and asking myself whether there is any real risk that the appellant is telling the truth I have concluded that there is no such risk. I reject his account as untruthful. In doing so I reject the various letters produced on his behalf forming bundle A for the appellant.

20. I have rejected the appellant's account of past events as untruthful and that is enough to dispose of this appeal as the appellant's claim to fear persecution now if returned to Bangladesh is based on his account on (sic) past events.

21. I dismiss the appeal".

The petitioner's contentions

5. In moving me to reduce the two decisions now complained of, counsel for the petitioner founded on paragraphs 11-13 of the Special Adjudicator's Determination as indicating that persecution on political grounds was a reality in Bangladesh, and that the judicial system was not effective to restrain it. He accepted that the onus was on the petitioner to bring himself, as an individual, within the relevant ambit of risk, and that the legal tests to be applied in that context were correctly summarised by the Special Adjudicator in paragraph 4. Put shortly, his contention was that the Special Adjudicator had gone demonstrably wrong in evaluating the petitioner's evidence, and that his purported rejection of that evidence was irrational and unwarranted. He went on to argue, by reference to essentially the same considerations, that the Immigration Appeal Tribunal had also erred in law in refusing the petitioner's application for leave to appeal. At the First Hearing before me, these contentions were developed under four main heads.
6. In the first place, by reference to paragraph 7 of the petition, counsel maintained that the Special Adjudicator had erred in law in adopting an inappropriate approach to assessing the risk of future persecution. He pointed out that the key paragraphs 15 and 16 of the Determination, relating to those past facts and circumstances on which the petitioner relied in claiming a well-founded fear of persecution if he were to return to Bangladesh, concluded with only tentative observations casting doubt on the petitioner's veracity. In that context, the Special Adjudicator had also omitted to notice the petitioner's explanation of having "fled" from the demonstration (at page C5 of his interview). Bearing in mind the positive findings favourable to the petitioner in paragraph 14, the Special Adjudicator had no legitimate foundation for his outright rejection of the petitioner's account as untruthful in paragraphs 19 and 20. In any event, it was wrong for the Special Adjudicator to have determined the issue of future risk by merely disbelieving the petitioner's account of past events. As the Court of Appeal had pointed out in the case of Karanakaran v Secretary of State for the Home Department 2000 3 A.E.R.449 (esp. in the Opinions of Brooke L.J. at 469, and Sedley L.J. at 479), proceedings before the Special Adjudicator were, to some degree at least, an administrative extension of the initial decision-making process, and a broad evaluative approach to the evidence was thus required. All relevant facts and circumstances had to be taken into account, and it was inappropriate for any matter to be left out of account altogether unless there was no real doubt that it had not occurred. Even an element of uncertainty on particular issues was a relevant factor to be weighed in the balance. In this case, there was no indication that any element of uncertainty as to the true facts had been properly addressed by the Special Adjudicator in reaching the conclusions set out at paragraphs 19 and 20.
7. In the second place, counsel argued that, on a fair appraisal of the petitioner's evidence, there was nothing about either of the matters discussed in paragraphs 15 and 16 to justify the Special Adjudicator's adverse reaction. The fact that a person had for some reason left a demonstration did not mean that he had not organised it, and the timing of the petitioner's acceptance that he had held office in the BNP was immaterial. Furthermore, it was contended, no relevant inferences on the crucial issue of future persecution in Bangladesh could properly be drawn from the ancillary matters discussed in paragraphs 17 and 18. In the course of the debate before me, however, counsel very fairly conceded that since the Special Adjudicator was entitled, and indeed bound, to consider all relevant circumstances in reaching his decision, it was necessarily open to him to take account of all of these matters in assessing how far he was prepared to accept the petitioner as a credible and reliable witness on the crucial issue.
8. Thirdly, counsel argued that, in one respect only, the Special Adjudicator had failed to give proper reasons for his decision, namely the rejection (in paragraph 19) of the letters comprising bundle A lodged on the petitioner's behalf. These letters, now productions 6/4-7 inclusive, bore to support several aspects of the petitioner's account, notably activism and committee membership in the BNP and the general political situation in Bangladesh. Admittedly, these letters all bore to have been written from a BNP source, and over a period of days shortly before the hearing of the petitioner's appeal by the Special Adjudicator in October 2000. In addition, they might to some extent appear to have been the work of the same author. However, it was wholly illegitimate for the Special Adjudicator to have rejected all of them without explanation.
9. Fourthly, counsel for the petitioner maintained that in refusing his client's application for leave to appeal, the Immigration Appeal Tribunal had erroneously failed to take account of the obvious deficiencies in the Special Adjudicator's Determination. No reasonable Tribunal could have refused to grant leave in circumstances where the Special Adjudicator's approach was flawed on the central issue of credibility, and the letters in bundle A had been rejected without explanation.

Arguments for the respondent (procedure and jurisdiction)

10. In response, counsel for the respondent began by submitting that, even if the petitioner's submissions were well-founded, the only decision that was properly before the Court, and thus the only decision that I could properly reduce, was the Tribunal's refusal to grant leave to appeal. No authority was cited for this proposition, and I was not immediately attracted to the idea that (on the stated hypothesis) the Court had no option but to leave standing a flawed decision on the substantial merits of the petitioner's application for asylum, and concentrate solely on a later decision on the limited issue of leave to appeal. As it seemed to me, any fresh consideration of the latter issue would inevitably be affected by the nature and terms of the substantive decision left standing, and for obvious reasons this might be seriously prejudicial to the petitioner's interests. The petitioner's real complaint was directed against the Special Adjudicator's Determination, and it was that Determination that he had intended to bring under review after exhausting his statutory remedies by seeking leave to appeal. However, since I was not fully addressed on this issue by either party, I intimated that in the event of my finding in the petitioner's favour I would require to hear further submissions as to the proper scope of the order to be pronounced by the Court.
11. Counsel for the respondent also sought to persuade me that the scope of the Tribunal's decision was necessarily restricted by Rule 18(6) of the Asylum and Immigration Appeals (Procedure) Rules 2000. That Rule provided that, in exercising its discretion, the Tribunal was not required to consider any grounds other than those included in the application for leave to appeal. This, she said, reflected a deliberate move to lessen the impact of the decision of the Court of Appeal in R v Secretary of State for the Home Department, ex parte Robinson 1998 Q.B.929. In that case the Court held that, given the nature of the proceedings, all obvious and properly arguable points should be taken into account even if they had not been raised in written grounds of appeal. Under the restrictive new Rule, I was precluded from reviewing the Tribunal's refusal of leave on any basis which could not be discerned in the petitioner's application. Moreover, by reference to Lord Marnoch's decision in Sangha v Secretary of State for the Home Department 1997 S.L.T.545, a petitioner's failure to follow statutory procedures should only be excused in exceptional circumstances, and the present petitioner's failure to appeal on all of the grounds now focused in his Petition was a failure to exhaust statutory remedies rendering judicial review incompetent.
12. Once again, I was not immediately attracted by what appeared, at first sight, to be a somewhat rigid and inflexible approach, particularly in the context of a semi-administrative decision-making process which was capable of affecting the life and liberty of unsuccessful applicants. Even the new Rule 18(6) did not appear to bar the Tribunal from taking account of matters going beyond those previously raised in written form, and there might conceivably be situations in which failure to consider such matters could be deemed irrational or unjustifiable. Moreover, the Rule did not bear to apply to the supervisory jurisdiction of this Court, and would in the present case be irrelevant if judicial review of the Determination of the Special Adjudicator were held to be competent.
13. More importantly, perhaps, I am satisfied that on a fair and reasonable reading, the petitioner's application for leave to appeal in the present case must be taken as covering, not merely the rejection of the bundle A letters, but the whole question of the petitioner's credibility. It was not contended that Rule 18(6) obliged this Court to read the application in an unfairly restrictive manner, and in my opinion, whatever the true purpose and effect of that Rule may be, the terms of the application are sufficiently wide to permit me to entertain all of the submissions advanced on the petitioner's behalf. In these circumstances, I do not find it necessary to express any final opinion on the proper construction and effect of Rule 18(6), and I would not in any event be prepared to do so without hearing full argument on what may, in other cases, be a point of real practical significance.

The respondent's contentions (merits)

14. As regards the substantive arguments advanced on the petitioner's behalf, counsel for the respondent submitted that they were all ill-founded. Like any other decision-maker, the Special Adjudicator had to judge matters of credibility and reliability against the background of all relevant information at his disposal. In that context, it was open to him to consider the inherent probabilities of alleged facts and circumstances spoken to in evidence, and an adverse view on credibility and reliability might legitimately be formed in the absence of any direct contradiction of the petitioner's account.
15. So far as paragraph 15 was concerned, the petitioner had clearly been at home when any trouble at the demonstration began, and judging by page C6 of his interview it was doubtful that he had been present at the demonstration at all. The central question was whether, as he now claimed, he had in fact "conducted" the demonstration, and it was open to the Special Adjudicator, having regard to the whole picture, to take the view that the petitioner's own account of having left the demonstration at an early stage cast doubt on that central claim. Similarly, the Special Adjudicator was entitled to form an adverse view on the credibility and reliability of the petitioner's delayed claim to be a Youth Leader in the BNP. At page C23 of his interview, he had denied being an office bearer in the party at all (thus contradicting several of the letters in bundle A), and had thereafter repeatedly insisted that he was only an ordinary party member. Paragraphs 17 and 18 again contained material, in counsel's submission, of which the Special Adjudicator was entitled to take account in deciding whether to accept, as credible and reliable, the petitioner's claim to have a well-founded fear of persecution in the event of his returning to Bangladesh.
16. Contrary to the submissions on the petitioner's behalf, it was necessary and legitimate to consider all of the matters in paragraphs 15-18 inclusive before coming to a decision on credibility and reliability, and in paragraphs 19 and 20 the Special Adjudicator was justified in concluding, beyond reasonable doubt, that the factors which, according to the petitioner, rendered him at risk of persecution in Bangladesh did not genuinely exist. Judging by the terms of paragraphs 15-18, the Special Adjudicator may not have regarded any particular factor as determinative on its own, but taking them cumulatively he was entirely justified in reaching the conclusion set out in paragraphs 19 and 20. In these circumstances, it was argued, the petitioner's first and second submissions were without merit.
17. Turning to the petitioner's third submission, to the effect that the Special Adjudicator had failed to give proper reasons for his decision, counsel argued that the correct approach for the Court in a matter of this kind was authoritatively laid down by the First Division in the recent case of Daljit Singh v Secretary of State for the Home Department 2000 S.C.219 (esp.at pages 222-3). In particular, a requirement for reasons was adequately met so long as the informed reader and the Court were left in no real and substantial doubt as to what the reasons for the relevant decision were, and what were the material considerations which were taken into account in reaching it. Contrary to certain dicta in English cases, no specific mechanical formulation required to be followed in all cases, and it was always a matter of circumstances whether the essential grounds for a decision had been satisfactorily explained. Against that background, it was submitted, the Special Adjudicator here had clearly reached his decision by disbelieving the petitioner on material issues, and in that context had "rejected" the letters as inadequate to persuade him otherwise. These letters may have been accorded some weight in so far as they bore to be consistent with the "objective" evidence on the general situation in Bangladesh, as referred to in paragraphs 11-13 of the Determination. However, the simple fact was that they were not accepted as sufficient to overcome the Special Adjudicator's adverse conclusion as to the petitioner's credibility and reliability.
18. Finally, in relation to the petitioner's fourth submission, counsel argued that since there was no discernible error in the Determination of the Special Adjudicator, the Immigration Appeal Tribunal had been well entitled to refuse the petitioner's application for leave to appeal.

 

Decision

19. Having carefully considered the competing submissions, I have reached the conclusion, without much hesitation, that the respondent's contentions are to be preferred, and that convincing grounds have not been made out for reducing either of the decisions now complained of.
20. As regards the alleged irrationality of the Special Adjudicator's approach to the petitioner's evidence, I am not of course called upon to decide whether, in point of fact, the Determination was right or wrong. The question is whether the conclusion complained of was one which a reasonable adjudicator, correctly applying the proper tests, could legitimately reach on the material before him. Against that background, I am unable to see any reason why the Special Adjudicator should not have been entitled to take account of the various factors discussed in paragraphs 15-18 of his Determination, nor why, on considering these factors together, it was not open to him to reach the decision set out in paragraphs 19 and 20. As is clear from paragraphs 11-13 of the Determination, he accepted that the general situation in Bangladesh might involve a real risk of persecution to those in the front line of BNP activism. The crucial issue was whether the petitioner had discharged the onus of proving, as a matter of reasonable likelihood, that he personally was at risk of such persecution should he return to that country. In my opinion, given the unsatisfactory and contradictory nature of the petitioner's evidence, the Special Adjudicator was legitimately entitled to query the true role (if any) that he had played in the demonstration referred to in paragraph 15. Similarly, as regards paragraph 16, I consider that the Special Adjudicator was legitimately entitled to query the truth of the petitioner's late claim to have been a Youth Leader (or any form of office bearer) in the BNP when he had repeatedly asserted otherwise in the past. As regards the matters discussed in paragraphs 17 and 18, these were also in my view material to the Special Adjudicator's overall conclusion, and as conceded by counsel for the petitioner they were plainly considerations going to the root of the petitioner's honesty and reliability as a witness. All in all, I am unable to accept that the Special Adjudicator has been shown to have erred in law or behaved irrationally in this area.
21. Turning to the petitioner's contention that inadequate reasons were given by the Special Adjudicator for his decision, I gratefully accept the guidance of the First Division in Daljit Singh as to the true scope of a decision-maker's obligation to give reasons. That decision is of course binding on me, but it is one that I follow all the more readily because, contrary to certain dicta of a prescriptive nature in England and elsewhere, it bears to reaffirm a pragmatic and flexible approach to the giving of reasons where this is required.
22. Against that background, I am not persuaded that the reasons given by the Special Adjudicator in this case should be regarded as inadequate. His decision to reject the petitioner's evidence as untruthful was plainly based on an evaluation of the matters discussed in paragraphs 15-18 of his Determination, and in that context he was surely right to acknowledge the existence of the letters and to record that they did not convince him that, notwithstanding all the other difficulties, the petitioner's evidence deserved more favourable treatment. It may be that this part of the Special Adjudicator's reasoning might have been more happily, or perhaps more fully, expressed, but having seen the relevant letters it is not difficult to understand why the Special Adjudicator should have regarded them as having insufficient weight to overcome the cumulative effect of the adverse factors discussed in paragraphs 15-18. Put shortly, the Special Adjudicator had to decide whether to accept or reject the letters as having sufficient weight for that purpose, and in my opinion his conclusion on that question was adequately signalled in paragraph 19.
23. It is to be noted, of course, that the Special Adjudicator's obligation to give satisfactory reasons relates to his eventual Determination, and not necessarily to each individual factor to which he has had regard in reaching it. In other words, it must in my view be a question of degree, in the circumstances of a given case, how far it may be necessary for a decision-maker to explain and justify each of the individual factors identified as constituting the basis for the decision in question. Here, for example, the reasons for the Special Adjudicator's conclusion were his rejection of the petitioner's evidence as untruthful and, in that context, his rejection also of the petitioner's letters. The basis for rejecting the petitioner's evidence was explained and justified in some detail, and against that background I do not consider that it was necessary for the Special Adjudicator to go further than he did in saying that the letters were rejected in the same context.
24. For the foregoing reasons, I refuse the petitioner's motion for reduction of the Special Adjudicator's Determination of 5 December 2000, and having done so it follows that I must also refuse his motion for reduction of the later decision of the Immigration Appeal Tribunal to deny his application for leave to appeal further. In these circumstances, no further hearing is necessary on the matters of law discussed in paragraphs 10-13 above, and I shall therefore simply sustain the respondent's second and third pleas-in-law, repel the petitioner's first plea-in-law and refuse the prayer of the petition.