Scottish Court of Session Decisions

Gurung, Re Petition for Judicial Review [2003] ScotCS 49 (27 February 2003)

OUTER HOUSE, COURT OF SESSION
P720/02	OPINION OF LORD CLARKE in the Petition of RAMESH GURUNG (AP) Petitioner; for Judicial Review     ________________

Petitioner: Simpson; Bennett & Robertson

Respondent: Carmichael; H. Macdiarmid

27 February 2003

1. In this petition, the petitioner seeks judicial review of a decision of the Immigration Appeal Tribunal, dated 27 May 2002, in which the Tribunal refused the petitioner leave to appeal a decision of an Immigration Appeal adjudicator dated 12 April 2002, whereby the adjudicator determined that the appellant had failed to establish any right under the Immigration Act 1971 or the European Convention on Human Rights, to remain within the United Kingdom. The petitioner seeks reduction of the Immigration Appeal Tribunal's decision or, alternatively, reduction of the adjudicator's decision. The matter came before me for a first hearing.
2. The background to the petition, as disclosed in the averments of the petitioner and the productions lodged, was as follows.
3. The petitioner was born on 29 May 1968 and is a citizen of Nepal. He claims to have come to the United Kingdom on 13 August 2000. He made a postal application for asylum through his solicitors on or about 14 September 2000. On 6 February 2002 the Secretary of State decided to give directions for the petitioner's removal from the United Kingdom and refused to grant him asylum. The petitioner lodged an appeal against that decision. At the hearing before the adjudicator, of the appeal, the Secretary of State was not represented. The petitioner was, however, represented by counsel.
4. In his petition, the petitioner avers that he gave evidence at the hearing, before the adjudicator, through an interpreter, to the following effect. He stated that his political involvement in Nepal began during his student days when he became a member of the All Nepal Free Students Union in 1992/1993 and started supporting the United Peoples Front ("UPS"). The UPS became the Nepal Communist (MAOIST) Party and in February 1976 they declared a "People's War" against the atrocities committed by those in power. He said that he joined the MAOISTS and became a member of that party on 30 June 1997. On or about 12 June 1999, while distributing leaflets with about ten other colleagues, he and his colleagues were attacked by the police. The petitioner and others were arrested and taken to the local police station where he was interrogated and tortured by the police. He was stripped naked and beaten for three days. On the fourth day he was transferred to the local prison where he was held for three months. He was then released from prison "as a result of a bribe" and on condition that he signed at the police station on the first day of each month. He complied with the requirement of signing each month until June 2000. On or about 20 June 2000 he was at his shop with seven or eight friends listening to revolutionary patriotic music, when a group of policemen entered the shop and started hitting and beating them. The petitioner ran away and one of his friends, who was running with him, was shot from behind and subsequently died. The petitioner then went into hiding and later learned that his house and shop were looted and destroyed by the police. He also discovered that his father and mother were beaten very badly and that his wife was taken away and has not been seen since. He said that on about 15 July 2000 he was told by a friend that official orders were being circulated that he should be shot on sight. The petitioner said that at that point he realised his life was in danger and he made arrangements to leave the country which he did on 12 August 2000 with the assistance of an agent. The petitioner contended before the adjudicator that if he were to return to Nepal, he would be arrested immediately at the airport and would be put in prison where he would be tortured or killed.
5. In the written determination and reasons of the adjudicator, which is No. 6/1 of process, the adjudicator stated at para. 6.1:

"In order for the appellant to succeed in his asylum appeal, he must show that he has a well-founded fear that if he returns to Nepal, he will be persecuted by reason of race, religion, nationality, membership of a particular social group or political opinion, and a reasonable likelihood that if he returns, he will in fact be subject to such persecution. The burden of proof rests with the appellant."

Counsel for the petitioner, who appeared before me, accepted that the adjudicator, in that paragraph, set out the legal position correctly. At para. 6.2 of No. 6/1 of process the adjudicator states:

"The appellant has also claimed that returning him to Nepal would be a breach of his rights under the ECHR, in particular Article 3. Again, the burden of proof lies with the appellant to show that if he is returned, he faces a real risk of the relevant ill treatment."

Once again, before me, counsel for the petitioner had no quarrel with that statement of the legal position.

6. The adjudicator then turned to make her findings of fact in the light of the evidence placed before her. As well as the oral evidence of the petitioner, the adjudicator had before her a bundle of documents which she specifies in para. 3.1 of No. 6/1 of process. These included, the Secretary of State's reasons for refusal letter dated 2 February 2001, the petitioner's interview record, correspondence from the petitioner's solicitors, a witness statement from the petitioner, and a bundle of "objective material" produced by the petitioner, which included a document from Amnesty International setting out the political situation in Nepal. At para. 7.1 of No. 6/1 of process, the adjudicator stated as follows:

"When assessing credibility, I have considered the decision in Chiver (10758). I am aware of the need to be cautious before rejecting as credible, an account by an anxious and inexperienced asylum seeker, whose reasons for seeking asylum may well contain inconsistencies and omissions. I have also reviewed the appellant's evidence in light of the objective material before me."

The adjudicator then went on to state that she accepted some of the petitioner's evidence, but not other parts of it. In particular she believed him when he said that he became involved, as a student, with the All Nepal Free Students Union and that he later became a member of the Nepal Communist Party. The adjudicator also accepted the petitioner's evidence regarding his detention on 12 June 1999, his treatment during detention and his release some three months later. She went on, however, to reject his account of events as regards what happened on 20 June 2000 and subsequently. At paras. 7.3-7.5, which I do not propose to referral in detail the adjudicator sets out clearly a number of inconsistencies in the petitioner's account of events, which, together with the manner in which the petitioner gave some of his evidence, led her to the conclusion that, even applying "the lower standard of proof", which was appropriate in such cases, as regards the events of 20 June 2000 and subsequently, spoken to by the petitioner, "either those events did not occur or they have been fabricated to embellish the appellant's claim".

7. The adjudicator however, did not let matters rest at that. She reminded herself at para. 7.6 that she had accepted the petitioner's account as to the events of 12 June 1999 and his resulting detention and, in particular, that he was mistreated and detained for three months and was then released as a result of a bribe, on condition that he report once a month to the police office, which he apparently did without incident until June 2000. The adjudicator having reminded herself of this evidence, which she accepted, then proceeded to say:

"The question I have to answer is whether these experiences and events give rise to a well-founded fear of persecution, and a reasonable likelihood that if he returns, he will in fact be subject to persecution for a Convention reason. In this respect I have considered the objective material. I accept that the situation in Nepal remains volatile and that many people do suffer arbitrary detention and mistreatment as a result of their political beliefs and activities, particularly following the launch of the People's War."

The adjudicator concluded, having regard to the evidence, that the appellant was not specifically targeted. She did so under reference to the evidence that she had accepted. She pointed out that even if the petitioner's evidence as to what happened on 20 June 2000 was true (contrary to her own conclusion), it was clear from his own evidence that the police had entered the shop only because they had heard the music, not for any other reason and not because of any specific interest in him.

The adjudicator concluded at para. 7.8, accordingly, that:

"I do not find to the requisite standard of proof that there is a reasonable likelihood of the appellant being persecuted for a Convention reason upon return to Nepal. For the same reasons, I find that his return would not be a breach of Articles (sic) 3 of the ECHR. I also do not find that any other Article of the ECHR is engaged."

The first reference in that passage to "a Convention reason" would appear to be a reference to the 1951 United Nations Convention relating to the status of refugees. The adjudicator having dismissed the petitioner's application for asylum, the petitioner applied for leave to appeal against that decision to the Immigration Appeal Tribunal. That application was refused by the Tribunal on 27 May 2002. The determination of the Immigration Appeal Tribunal is No. 6/2 of process.

8. The petitioner's grounds in support of his application for leave to appeal were as follows.

"The Adjudicator's determination is against the principles of Natural Justice. The Adjudicator failed to consider the weight of evidence given by myself, although he accepted the facts of my basis of claim as true. The Adjudicator erred in law that although he accepted that I was detained and ill treatment, he failed to apply the Lower Standard of Proof in my case and reach a favourable conclusion.

Further, the Adjudicator misdirected himself in law because, although he accepted the facts that my parents were attacked, wife was taken away by the authorities and has since been missing, and also the fact that I was wanted and my house and shop destroyed - he failed to consider these in reaching a favourable conclusion being that I am of interest to the authorities and cannot return to Nepal.

He has also failed to consider the fact that those who are returned to Nepal are detained indefinitely and have been persecuted (Pratik Gurung). Instead, the learned Adjudicator gave important to Trivial matters arising from my confusion and some replies given by me due to myself being frightened. Most Importantly, the Adjudicator failed to consider the chaotic situation of War in Nepal."

After having noted the evidence of the petitioner which the adjudicator had accepted, the Immigration Appeal Tribunal stated, in its determination of the application, as follows:

"The Grounds of Appeal are not well-founded: the Adjudicator did not accept that the Applicant's parents had been attacked and his wife disappeared. She found that at the time of coming to the United Kingdom, the Applicant was of no real interest to the authorities in Nepal, and that there was no evidence before her to show any revival of that interest subsequently. Accordingly, the Grounds of Appeal disclose no error of fact or law which would have made a material difference to the outcome of this appeal."

The Tribunal, therefore, considered that there was no real prospect of success in any appeal and no other compelling reason why the appeal should be heard. Leave to appeal was, therefore, refused.

9. Before this Court, counsel for the petitioner made a number of points. The first was that the adjudicator did not apply properly the approach set out in the decision of the Immigration Appeal Tribunal in the case of Chiver (Appeal No. 10758 - 1994). That was a case where an adjudicator had allowed an appeal by an appellant against a decision of the Secretary of State to give removal directions against him as an illegal entrant to the UK. The ground of appeal was that his removal would be contrary to the Refugee Convention. The Secretary of State appealed the adjudicator's decision. Broadly speaking, the Secretary of State's grounds of appeal, in part, at least, were that the adjudicator, having found discrepancies in the appellant's evidence, and also having questioned his credibility in relation to certain matters, should not have allowed the appeal. In that respect, the Immigration Appeal Tribunal said this:

"There are indeed inconsistencies but they are not inconsistencies which the adjudicator ignored. We agree with Mr Kulscar that the structure of the determination reflects the adjudicator's approach in listing matters adverse to Mr Chiver and then concluding that these do not affect the adjudicator's belief in the kernel of Mr Chiver's story. It cannot be said that this approach is so inherently logical as to render the determination flawed. In effect it adopts precisely the approach which is urged upon adjudicators, i.e. to weigh up the evidence and to indicate that which is believed and that which is not."

The Tribunal then continued:

"It is only when an adjudicator after stating that evidence is believed or disbelieved reaches a conclusion which has no foundation in the belief or disbelief that a determination cannot stand because of inherent inconsistencies. In this case this is patently not so for the adjudicator's findings on credibility adverse to Mr Chiver go as the adjudicator said to the details of the story. It is perfectly possible for the adjudicator to believe that a witness is not telling the truth about some matters, has exaggerated the story to make his case better, or is simply uncertain about matters, but still to be persuaded that the centre piece of the story stands. This is particularly so where the critical criterion for an adjudicator is the reasonable likelihood of persecution occurring were a person to return to a particular country."

The Secretary of State's appeal was dismissed.

10. Counsel for the petitioner appeared to be contending that the approach of the Tribunal in Chiver case supported a submission that the adjudicator in the present case, having accepted certain aspects of the petitioner's version of events as being credible, she should not have allowed inconsistencies she saw in other aspects of his case, to lead her to the conclusion which she arrived at viz, that the petitioner had not discharged the onus of proof on him to establish his case. But that, in my judgment, is a misunderstanding of what is discussed and decided in the Chiver case which is simply authority for the proposition that a fact finding Judge, such as an adjudicator, is free to accept some of a party's case, while rejecting other parts of that case, provided this is done on a reasoned basis in his overall assessment of the evidence. That is exactly what it seems to me the adjudicator has done in the present case. In particular she gives adequate reasons for rejecting the petitioner's version of events as to what transpired in June 2000, and subsequently, even though she has accepted his version of other events as being credible. She did not, as counsel for the petitioner seemed to suggest at one point, by reason of disbelieving the petitioner in relation to those last matters, blind herself to those matters she did find credible. On the contrary at para. 7.6 and 7.7 of No. 6/1 of process, she fully takes into account the evidence that she has believed in answering the question that she had to determine.
11. Counsel for the petitioner developed his submissions into a complaint that the adjudicator had not given sufficient reasons for finding that the appellant had not been specifically targeted by the authorities in Nepal. In this connection, counsel for the petitioner referred me to the case of Zia v Secretary of State for the Home Department 1994 SLT 288. The petitioner in that case sought judicial review of an Immigration Appeal Tribunal decision refusing leave to appeal against an adjudicator's decision. At page 291 the Lord Ordinary, Lord Prosser, said:

"... the fundamental submission on behalf of the petitioner was that any adjudicator was obliged to give coherent and comprehensible reasons, and to state appropriate findings as to the facts; and that this adjudicator's 'reasons' failed to do this. Counsel referred to the Immigration Appeals (Procedure) Rules 1984, SI 1984/2041 and in particular Rule 39(3), which by virtue of Rule 22(1)(a) applied to appeals to an adjudicator. Rule 39(3) provides that the determination on any appeal shall be recorded 'in a document signed by the adjudicator ... and the reasons for the determination shall be set out therein'. It was not enough that the adjudicator might in theory have had comprehensible reasons for what she did. Her reasons must be sought in her stated reasons, and nowhere else. I was referred to the Opinion of Lord Clyde in Malcolm v Housing Benefit Review Board for Tweeddale District. His Lordship there emphasised that in stating the reasons for a decision, 'this must be in a distinct and intelligible way'. He went on to adopt certain comments of Lord Weir in MacLeod v Banff and Buchan District Housing Benefit Review Board at page 755. Lord Weir there expressed the view that the board was required 'to give proper and adequate reasons for its decision which deal with the substantial questions in issue in an intelligible way' and went on to cite the well known observations of the Lord President in Wordie Property Co Ltd v Secretary of State for Scotland at page 348: 'The decision must, in short, leave the informed reader and the court in no real and substantial doubt as to what the reasons for it were and what were the material considerations which were taken into account in reaching it'".

Counsel for the petitioner invited me to adopt and apply those submissions to the adjudicator's decision in the present case. He then drew my attention to what Lord Prosser had to say at page 295 in the case of Zia namely:

"In the present case, I cannot really tell what questions the adjudicator was asking herself, or by what process she reached, or felt unable to reach, answers to those questions."

Counsel for the petitioner appeared to suggest that those remarks could be applied equally well to the adjudicator's decision in the present case. Counsel for the petitioner's submissions, at one point, seemed to involve a complaint that the adjudicator had failed to spell out why she did not simply accept that the inconsistencies in the petitioner's evidence might have arisen simply because he had been frightened or confused. In that connection, counsel referred me to what is said at para. 12.26 of MacDonald on Immigration Law and also to what was said by Brooke LJ, under reference to Australian authority, in the case of Karankaran v Secretary of State for the Home Department (2000) 3 ALL ER 449 at page 467.

12. Lastly, counsel for the petitioner submitted that the adjudicator had failed to place adequate weight on the objective material placed before her and, in particular, the Amnesty International report, which is produced as No. 7/8 of process, as to the political situation in Nepal. The use of the word "volatile" by the adjudicator in that connection was criticised as betraying an under-estimation of the seriousness of the position obtaining in that country for persons like the petitioner. Having regard to that material, properly assessed, and the evidence which the petitioner gave as to what had happened to him in Nepal, which the adjudicator had accepted, she had given insufficient reasoning, or had provided an insufficient basis, for reaching the conclusion that the petitioner had not been specifically targeted by the authorities in Nepal. For these reasons there was a reasonable prospect that an appeal against her decision would succeed and the Immigration Appeal Tribunal decision should be quashed.
13. In reply, counsel for the respondent invited me to dismiss the petition. In doing so she said that her attack on the petitioner's position would no longer include the point reflected in the respondent's first plea-in-law, viz, that it proceeded upon certain grounds which had not been made part of the application to the Immigration Appeal Tribunal for leave to appeal.
14. Counsel for the respondent submitted that ultimately the petitioner's position had amounted to criticism of the adjudicator's decision for failing to give proper reasons in relation to her assessment of the credibility of the petitioner and her treatment of the material placed before her. Counsel for the respondent, in that respect, referred me to what was said in the Opinion of First Division, delivered by Lord Weir, in the case of Singh v Secretary of State for the Home Department 2000 SC 219. At page 222 his Lordship referred to what Lord President Emslie had to say in the case of Wordie Property regarding the nature and extent of reasons to be given by statutory tribunals and which is cited, above, from the judgment of Lord Prosser in the case of Zia. Lord Weir then continued at pages 222-223 as follows:

"The extent and adequacy of the reasons which are set out is bound to vary according to circumstances (Safeway Stores Plc v National Appeal Panel). Much will depend on the nature of the tribunal and any rules under which it required to work. The scope of the issues which may be raised, the amount of evidential material involved and whether the decision is an administrative or judicial one (Lawrie v Commission for Local Authority Accounts in Scotland; C, petitioner).

15. In connection with immigration appeals, it is to be noted that in terms of R2(3)(b) of the Asylum Appeals (Procedure) Rules 1996, every determination is to consist of a 'concise' statement of (i) the decision on the substantial issues raised; (ii) any findings of fact material to the decisions; and (iii) the reasons for the decision. We agree with the view of Lord Penrose in Mohammed Asif, Petitioner (1999 SLT 890): '... Nothing could be more destructive of the efficient disposal of the immigration appeals than the notion that the adjudicator on the tribunal are under an obligation to carry through a mechical process of narration of the evidence, analysis of it into classes and an explanation factor by factor of the relevance or irrelevance, credibility and reliability or otherwise of it.'"

Counsel for the respondent submitted that the adjudicator's decision in the present case met the requirements set out both in Wordie Property, and in the Singh case, just cited. The adjudicator had set out clearly what evidence she accepted and what she rejected, and why she has done so and had also given clear reasons for the decision at which she arrived. She had done so having expressly recognised, at para. 7.1, of the difficulties that asylum seekers like the petitioner might experience in giving evidence. She was fully alive to these possible difficulties and she had correctly understood and applied the approach of the Immigration Appeal Tribunal in the case of Chiver. There were, nevertheless, inconsistencies in the petitioner's position and the adjudicator was entitled to take these into account in assessing the petitioner's case as a whole. Whatever the possible difficulties that an asylum seeker, like the petitioner, might face in presenting his evidence, the evidence still required to be tested (albeit with caution) just as it would be in any other type of forum. Counsel for the respondent referred me to the case of Singh v Secretary of State for the Home Department 2000 SC 288. In that case Lord Reed at page 293 said as follows:

"I bear in mind that a special adjudicator must be careful before rejecting an asylum seeker's account as incredible, giving that the decision under appeal is said to be one which may put the appellant's life at risk, and given also that the cultural linguistic and other difficulties (including those described in para. 198 of the UN Handbook) which may affect a genuine asylum seeker. Nevertheless, I must also bear in mind that credibility is a question of fact (cf. R v Secretary of State for the Home Department, ex parte Agbonmenio).

Such questions have been entrusted by Parliament to the tribunal of fact - in this case, the special adjudicator - and it would be constitutionally improper for the court to interfere with that tribunal's assessment except on Wednesbury grounds. It is also important - especially in a case such as the present, when the court has the same evidence before it, in the same form, as the special adjudicator - to bear in mind that the special adjudicator has been specially appointed to hear asylum appeals and has the benefit of his own training and experience in dealing with asylum seekers from different societies and cultures: something of which a judge is unlikely to have any comparable experience. As Sir Thomas Bingham MR (as he then was) observed in Sahota v Immigration Appeal Tribunal at page 506:

'The present field is one in which it is tempting for the court to stray into taking its own view of the facts. That is a temptation which the court must resist. A court's function is limited to a review of the challenged decision on one or more of the familiar grounds.'"

16. My attention was also drawn by counsel for the respondent to the decision of the Extra Division in Asif v Secretary of State for the Home Department 2002 SC 182. In that case Lord Coulsfield, in delivering the Opinion of the Court was to the following effect at page 189:

"... we accept without reservation that credibility is an issue which must be approached with care and with sensitivity to cultural differences and the very difficult position in which applicants escaping from persecution often find themselves. It is, however, a matter of everyday experience that the credibility of witnesses can, and often must, be tested by examining what they say in regard to peripheral matters as well as central ones. The United Kingdom system of immigration control presupposes that the credibility of applicants has to be judged and, if a judgment is to be made, it is very difficult to see that it can be made without reference to the ordinary tests of consistency and inconsistency, always applied with due sensitivity."

17. Counsel for the respondent submitted that in applying the foregoing dicta to the present case, the adjudicator's decision could not be said to be flawed. It was nothing to the point that there might have been explanations for the inconsistencies in the petitioner's story other than that the petitioner was fabricating part of his story. The adjudicator was entitled to reach her conclusion that that was the reason for the inconsistencies provided that, over all, she approached her task by applying the lower standard of proof as discussed in the case of R v Secretary of State for the Home Department, ex parte Sivakumaran (1998) 1 AC 958. The adjudicator expressly referred to the relevant standard of proof at para. 6.1 of her decision. As regards the objective material placed before her, and, in particular, the Amnesty International document, she had had regard to this material and did not dismiss it as unreliable or irrelevant. It was, however, only part of the material she had to refer to in determining the question before her, which was whether there was a well-founded fear that the petitioner would be persecuted or tortured if he was returned to Nepal because of his political opinions. She set out, at para. 7.7, cogent reasons why she considered the petitioner was not to be seen as being at such a risk. That was an entirely acceptable approach, even if the regime in question had a proven record of having little regard for human rights. For all the foregoing reasons, counsel for the respondent submitted that there was no foundation for the petition and it should be dismissed.
18. I am entirely satisfied that the petitioner's attack on the adjudicator's decision is without merit and that, accordingly, the Immigration Appeal Tribunal were well-founded in refusing him leave to appeal against it. I have already indicated why the petitioner's reliance on the case of Chiver was nothing to the point. As I have already explained it is no authority for the proposition that, in a case like the present, when the adjudicator believes a substantial part of the petitioner's evidence, he ought to accept all of the evidence or, alternatively, place little or no weight on inconsistencies in other parts of his evidence in the over-all assessment of the petitioner's case. As for the rest of the petitioner's case, I agree with counsel for the respondent, that it ultimately boiled down to a criticism of the adjudicator for not providing more and fuller reasons for her conclusion and for, in effect, falling to reach the conclusion that the petitioner desiderated, having regard to the evidence which the adjudicator accepted. I consider that criticism to be ill-founded. It flies in the face of what Lord Penrose had to say in the case of Asif, which was approved of by the First Division in the case of Singh 2000 SC at 223. It is also a criticism which, if it were to be taken up and accepted by the Court, would involve trespassing into the territory which Sir Thomas Bingham MR (as he then was) in Sahota v Immigration Appeal Tribunal (1995) IMM AR 500, warned Courts against, namely substituting their view of the facts for that of the adjudicator. It fails also, in my view, to have proper regard to what the Extra Division said in the case of Asif at page 189 as to how adjudicators are not only entitled to have regard to inconsistencies in applicants' evidence, in deciding questions of credibility, but may be required to do so.
19. The adjudicator, in the present case, in my judgment, also met all the requirements which are set out in the case of Wordie Property by Lord President Emslie as regards the nature and extent of reasons to be given by statutory tribunals. Unlike the position Lord Prosser found himself in the case of Zia at page 295, I find no difficulty in telling what questions the adjudicator was asking herself and by what process she reached answers to those questions. The questions were, moreover, in my judgment, the correct ones in the circumstances (and counsel for the petitioner did not suggest otherwise). I have, accordingly, been unable to find any defect, in form, or in substance in the adjudicator's decision which would provide any ground for holding that the Immigration Appeal Tribunal, in refusing to grant leave to appeal against it, erred in any respect. The petition therefore falls to be dismissed.