Scottish Court of Session Decisions

Tuncer, Re Judicial Review Determination [2003] ScotCS 99 (3 April 2003)

OUTER HOUSE, COURT OF SESSION
P848/02	OPINION OF LORD BRODIE in the Petition of MEHMET TUNCER Petitioner;   for   Judicial Review of the determination of R.G. Handley, Adjudicator, dated 20 February 2002, and of a decision of the Immigration Appeals Tribunal, dated 15 April 2002 ________________

Petitioner: Melvin-Farr; Skene Edwards, W.S.

Respondent: Miss Carmichael; Office of the Solicitor to the Advocate General

3 April 2003

Introduction

1. The Petitioner is a Turkish Kurd. He entered the United Kingdom on or about 26 February 2001. He claimed asylum immediately upon arrival. His claim was refused. He was served with a Reasons for Refusal letter which was dated 27 March 2001. He was subsequently served with a Notice of Refusal of Leave to Enter after Refusal of Asylum.
2. The Immigration and Asylum Act 1999 makes provision for appeal against refusal of an application for asylum. Section 65 of the Immigration and Asylum Act 1999 provides that a person who alleges that an authority (which means the Secretary of State, an immigration officer or a person responsible for the grant or refusal of entry clearance) has acted in breach of his human rights, may appeal. Acting in breach of human rights means acting or failing to act in a way which is made unlawful by section 6 (1) of the Human Rights Act 1998 (that is, in a way which is incompatible with a Convention right). Convention rights include those set out in Article 3 of the European Convention on Human Rights. Article 3 provides that no one shall be subjected to torture or to inhuman or degrading treatment or punishment. Section 69 of the Immigration and Asylum Act 1999 provides that a person who is refused leave to enter the United Kingdom may appeal on the ground that his removal in consequence of the refusal would be contrary to the Convention Relating to the Status of Refugees of 1951 and the 1967 Protocol to that Convention. A refugee, in terms of the 1951 Convention as amended by the Protocol, is any person who, 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. The 1951 Convention imposes certain duties on receiving states party to the Convention in relation to a person who is a refugee. Among these duties is that set out in Article 33.1 which is in these terms:

"No Contracting State shall expel or return ('refouler') a refugee in any manner whatsoever to the frontiers of territories where his life or freedom would be threatened on account of his race, religion, nationality, membership of a particular social group or political opinion."

3. The Petitioner availed himself of his rights of appeal against his application for asylum. In particular, he appealed the Notice of Refusal of Leave to Enter after Refusal of Asylum. His appeal was heard by an Adjudicator, Mr R G Handley, at Glasgow on 13 February 2002. The Adjudicator's determination of the appeal (the "Determination") was promulgated on 19 March 2002. A copy of the Determination is number 6/1 in the petition process. It discloses that the Respondent had served on the Petitioner a "One Stop Notice" (in terms, as I would understand it, of section 74 of the Immigration and Asylum Act 1999). It further discloses that the Petitioner had appealed on the grounds that he is a refugee under the 1951 Convention Relating to the Status of Refugees ("the 1951 Convention") and that he was persecuted because of his Kurdish origin and his political opinion, and that the Petitioner had also claimed that any removal would be a contravention of Article 3 of the 1950 Convention for the Protection of Human Rights and Fundamental Freedoms (the Adjudicator refers to this convention as "the 1950 Convention" and I shall follow him in so doing, although it might be more familiarly referred to as the European Convention on Human Rights). Although the sections are not referred to in the Determination and I was not addressed on this, I would therefore take the Petitioner to have appealed in terms of both section 65 and section 69 of the Immigration and Asylum Act 1999. In terms of the Determination the Adjudicator dismissed the appeal under the 1951 Convention and dismissed the appeal under the 1950 Convention. The Petitioner applied for leave to appeal the Adjudicator's dismissal of his appeal to the Immigration Appeal Tribunal. Leave to appeal was refused by Mr J R A Fox, Vice President, by determination dated 15 April 2002 and notified to the Petitioner on 3 May 2002 (the "Refusal of Leave to Appeal"). The Secretary of State for the Home Department gave notice to the Petitioner, dated 4 July 2002, that the Petitioner was to be detained. In the petition the Petitioner is designed as presently detained at Dungavel House Detention Centre, Ayrshire. A removal direction (for removal to Istanbul, Turkey), also dated 4 July 2002, was made for 12 July 2002.
4. The Petitioner has applied for judicial review of the Determination and of the Refusal of Leave to Appeal. The remedies sought in the petition are: i) reduction of the Determination, ii) reduction of the Refusal of Leave to Appeal, and iii) suspension of the removal direction and suspension ad interim.
5. The petition came before me for a first hearing on 12 March 2003. The Petitioner was represented by Mr Melvin-Farr. The Respondent to the petition, the Secretary of State for the Home Department, was represented by Miss Carmichael. Mr Melvin-Farr's motion, on behalf of the Petitioner, was for reduction of the Refusal of Leave to Appeal, as sought in paragraph 3 ii) of the petition. Miss Carmichael's motion, on behalf of the Respondent, was for dismissal of the petition.

Remedy

6. It is convenient immediately to say something about Mr Melvin-Farr's selection of remedy. It was his submission, which I shall set out at greater length below, that the Adjudicator had made three material errors in law, each of which fatally flawed the Determination. However, he accepted, as Miss Carmichael had submitted, under reference to Lord Macfadyen's opinion in Ruslanus Irzekevikius v Secretary of State for the Home Department, 14 July 1999, unreported, that, should I uphold the submissions on behalf of the Petitioner to the effect that the Adjudicator had made one or more material errors in law, it would be sufficient to give effect to that decision and consistent with this court's purely supervisory jurisdiction, simply to reduce the Refusal of Leave to Appeal, thereby leaving it open to the Petitioner to make a further application for leave to appeal against the Determination to the Immigration Appeal Tribunal in the expectation that, having regard to the court's decision, that application would be granted. Miss Carmichael had drawn my attention to the statutory provisions for appeal from a decision of an Adjudicator on an appeal to him such as had been made by the Petitioner. They are to be found in Schedule 4 to the Immigration and Asylum Act 1999 and the Immigration and Asylum Appeals (Procedure) Rules 2000, SI 2000/2333. Paragraph 22 of Schedule 4 to the 1999 Act provides, subject to an exception which does not apply here, that any party to an appeal to an adjudicator may, if dissatisfied with his determination, appeal to the Immigration Appeal Tribunal. On such an appeal the Tribunal may affirm the determination or make any other determination which the adjudicator could have made. An appeal to the Tribunal, Miss Carmichael explained, under reference to the entirely general terms of paragraph 22 (1) of Schedule 4, might be as to matters of fact or as to matters of law. Referring to rule 22 of the Immigration and Asylum Appeals (Procedure) Rules, Miss Carmichael explained that in an appeal to the Tribunal, the Tribunal might consider as evidence any note or record made by the adjudicator of any proceedings before him in connection with the appeal, and, on its own motion or on the application of any party, consider evidence further to that which was submitted to the adjudicator. Evidence might be given orally (in which case the Tribunal might take the evidence itself or remit the appeal to the same or another adjudicator) or in writing. Miss Carmichael described these provisions as allowing for a wide range of procedure and a wide range of potential disposals. They allowed for the correction of any material error of law on the part of an adjudicator. Here, the Statement of Grounds of Appeal which had been lodged with the Petitioner's application for leave to appeal, sufficiently identified each of what were submitted by Mr Melvin-Farr to have been errors of law on the part of the Adjudicator. Accordingly, if the Refusal of Leave to Appeal was reduced and, as might be anticipated if this court found Mr Melvin-Farr's submissions to be well founded, a further application for leave to appeal to the Immigration Appeal Tribunal was granted, it would then be open to the Petitioner to make the same submissions to the Tribunal as had been made to the court and it would be open to the Tribunal to uphold them and to allow the appeal. I did not understand Mr Melvin-Farr to dispute any of this, hence his decision not to insist upon an application for reduction of the Determination. For the reasons given by Lord Macfadyen in Ruslanus Irzekevikius v Secretary of State for the Home Department, it respectfully appears to me that Mr Melvin-Farr's decision was a correct one. As Lord Macfadyen explains, this court, when called upon to exercise its supervisory jurisdiction, should interfere with the proceedings of subordinate tribunals only to such extent as is necessary to afford a proper remedy against excess or abuse of jurisdiction where none is otherwise available. The statutory provisions for appeal from a determination by an adjudicator to the Immigration Appeal Tribunal allow for correction of any error that the adjudicator may make. In the present case, if the submissions made by Mr Melvin-Farr are well founded, leave to appeal ought to have been granted. For the Vice President not to have done so was an error in law. This court, in exercise of its supervisory jurisdiction, has power to correct that error to the extent of reducing the Refusal of Leave to Appeal. That done, the procedure, as Lord Macfadyen puts it, is restored, and the Petitioner is free to deploy all the arguments before the competent statutory body (the Immigration Appeal Tribunal) which were put before the court, on leave to appeal being granted. I accept that it is no more than an expectation that should this court hold an adjudicator's determination to disclose an error in law, and for that reason reduce a refusal of leave to appeal, that a subsequent application for leave would be granted. It is, however, a strong expectation and if it were to be disappointed, the subsequent refusal would be subject to judicial review as had been the first. I notice that the approach commended by Lord Macfadyen, although it has not been universally taken in Scottish cases of judicial review of determinations on appeals against refusal of asylum, was that adopted, with the agreement of parties, by Lord Mackay of Drumadoon in Sattar Petitioner 2001 SCLR 748.
7. Mr Melvin-Farr did not insist upon suspension of the removal direction. As was explained to me, the operation of the removal direction had been suspended administratively pending determination of these proceedings for judicial review.
8. With that by way of preliminary, I turn to consider Mr Melvin-Farr's three submissions on behalf of the Petitioner and Miss Carmichael's response to them.

The First Submission for the Petitioner: over-emphasis on credibility

9. The first submission made by Mr Melvin-Farr on behalf of the Petitioner was that the Adjudicator had erred in law by adopting an approach to the Petitioner's appeal which over-emphasised the issue of credibility. At paragraph 22 of the Determination the Adjudicator records a finding adverse to the Petitioner's credibility, to which Mr Melvin-Farr drew my attention. It is in these terms:

"As already stated, I consider the appellant's credibility was damaged by the differences in response to his involvement with HADEP [the Peoples Democracy Party]."

To understand this finding it is helpful to look at paragraph 13 of the Determination. It is in these terms:

"At the Hearing, the appellant was asked if he was a member of HADEP and he told me he was a sympathiser. The appellant was reminded that at interview (A15) he was asked why he had been arrested and in response he indicated that it was because of his membership of HADEP. Given the significance of such a matter to the appellant, I considered this discrepancy damaged the credibility of his evidence."

It will be recollected that the grounds of the Appellant's appeal against the Notice of Refusal of Leave to Enter after Refusal of Asylum were that he is a refugee under the 1951 Convention and that he was persecuted because of his Kurdish origin and his political opinion and, further, that any removal of him to Turkey would be a contravention of Article 3 of the 1950 Convention. These grounds required that the Petitioner establish facts which, at least in part, were specific to him and his circumstances. The Adjudicator identified what had to be established by the Petitioner at paragraphs 5 and 6 of the Determination. These paragraphs are in the following terms:

"5. For the appellant to succeed under the 1951 Convention, he must 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. The standard of proof for establishing such fear is that of reasonable degree of likelihood as discussed in Karanakaran [2000] Imm AR 271. The burden of proof is on the appellant.

6. In human rights appeals, it is for the appellant to show that there has been an interference with his human rights. If that is established and the relevant article permits, it is then for the respondent to establish that the interference was justified. The appropriate standard of proof is whether there are substantial grounds for believing the evidence."

No criticism was made of the way in which the Adjudicator had identified the issues before him. It was not suggested that evidence from the Petitioner as to his personal experience was not relevant to determination of these issues. It would therefore appear to follow that it was relevant for the Adjudicator to come to a view as to whether or not he found the Petitioner to be a credible witness. The position generally is put this way in the Opinion of the Court in a case referred to by Miss Carmichael, Asif v Secretary of State for the Home Department 2002 SC 182 at 189D:

"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."

I did not understand Mr Melvin-Farr to challenge anything which was said in Asif, but, initially, his complaint was that the Adjudicator had allowed the damage he spoke of in paragraph 22 to colour his judgment as to the whole application. He later went somewhat further and submitted that the Adjudicator had based his refusal of the appeal on the issue of credibility. To see why that might amount to an error in law, notwithstanding what was said in Asif, it is necessary to look at the authority founded on by Mr Melvin-Farr in support of his first submission, R v Immigration Appeal Tribunal ex parte Baltazer Oyosa Mutuli and Georgina Victoria Oyiela [1997] EWHC Admin 919, a decision on an application to move for judicial review by Forbes J. Without pretending to understand the precise nature of the procedural stage of that case when it came before Forbes J (and I was not addressed on that), it would appear that what he was concerned with was whether the applicants had an arguable basis of challenge to the decision of the special adjudicator. His initial view was that there was no arguable basis for challenge to be advanced but he finally came to the conclusion that there might be some substance in some of the criticisms made by counsel for the applicants and accordingly granted leave to move (which I take to be the ordering of a fuller hearing). In coming to his conclusion Forbes J said this:

"[Counsel for the applicants] has also reminded me that in the case of R v Immigration Appeal Tribunal, ex parte Hussain, the transcript of which is dated 25^th April 1996, CO/1990/95, in which Turner J drew attention to the danger of making credibility an all encompassing issue in the determination of the asylum appeal process. What he said was this: 'Credibility is not in itself a valid end to the function of an adjudicator. There is a risk that overemphasis on the issue of credibility may distort the findings of an adjudicator.'

6. Those words were quoted with approval in the decision of the Immigration Appeal Tribunal in the case of Vincente Manuel Guine and others v Secretary of State for the Home Department, dated 9^th August 1996. That determination was notified on 9^th September 1996 under appeal reference HX/73271/95 (13868). Whilst the decision of Turner J and the Immigration Appeal Tribunal are not binding upon me, I think it is appropriate to attach considerable weight to them for the purposes of an application for leave. They are persuasive statements of principle and ones which attract considerable respect. What the Immigration Appeal Tribunal said in Guine, having cited Turner J's words with approval, was this: 'In our view this sums up succinctly a most important warning in asylum appeals. On occasion we agree one encounters the situation often referred to as the Kingori ... situation where the adjudicator having heard the evidence simply does not believe the central plank to the appellant's claim to asylum. In our view it is safer for adjudicators first to look at the story and see whether if it were true the appeal would succeed and then to proceed to examine it against the background of the country in question.'"

Ex parte Mutuli was cited in Asif and is commented upon in a passage in the Opinion of the Court which precedes the passage I have already quoted. The Court said this about it at 188H:

"Neither [the decision in ex parte Mutuli] nor the opinion of Turner J in ex parte Hussain nor the decision of the Immigration Appeal Tribunal in Guine v Home Secretary which was also referred to in ex parte Mutuli seems to us to be of any real assistance in the present case. The decisions, and other authorities such as the UNHCR handbook, rightly, in our view, emphasise that credibility is an issue to be handled with great care and sensitivity, and that lack of credibility, on peripheral issues or even on material issues, is not to be made an easy excuse for dismissing a claim by an applicant who comes from a state or situation in which persecution is an established fact of life, It does not, however, in our opinion, follow that the question of the applicant's credibility can be set aside or that the account he gives is not to be tested."

What I take from these authorities, and this was implicit in Mr Melvin-Farr's submission, is that the credibility (or perhaps the incredibility) of the applicant is capable of being over-emphasised in an adjudicator's determination and that such over-emphasis, in turn, is capable of amounting to an error in law. However, and this was Miss Carmichael's submission, provided the adjudicator deals sensitively with the issue of credibility and the various difficulties which an asylum seeker faces, it can be a proper exercise of the adjudicator's function to determine an appeal on the basis of the credibility of the applicant.

10. Miss Carmichael's response to Mr Melvin-Farr's first submission was twofold. First, she submitted that there was no rule of law that the adjudicator must necessarily approach matters in the way in the way set out in Guine v Home Secretary Department, as quoted in ex parte Mutuli. Having regard to what was said in Asif, I accept that submission. Second, Miss Carmichael submitted that the criticism advanced on behalf of the Petitioner was ill-founded because the Adjudicator had in fact considered the claim on the basis that what the Petitioner had said was indeed true. Again I agree with Miss Carmichael. Mr Melvin-Farr asserted that the Adjudicator's approach was coloured by his view on credibility and that he based his decision on credibility. I cannot regard that as a fair reading of paragraphs 22 to 28 of the Determination. What follows "In any event" in paragraph 22 and what is contained in the subsequent paragraphs presuppose acceptance of the salient features of the Petitioner's account. There then follows a testing of the significance of that account against what can be taken to be the more general situation in Turkey based on the background reports and the arriving at conclusions drawn from that exercise. As Miss Carmichael submitted, this is not materially different from what was desiderated in ex parte Mutuli. In my opinion, it discloses no error in law. I accordingly reject the first submission for the petitioner.

The Second Submission for the Petitioner: failure to indicate what was accepted and what was rejected

11. Mr Melvin-Farr submitted that the Adjudicator had erred in law by failing clearly to indicate what evidence he had accepted and what evidence he had rejected in coming to his conclusions. Implicit in this submission is the proposition that any decision maker who has an obligation to give reasons for his decision (which would include the Adjudicator) must give these reasons in an intelligible way. Mr Melvin-Farr's authority for that is a passage in the opinion of the Lord President in Wordie Property Co Ltd v Secretary of State for Scotland 1984 SLT 345 at 348. What the Lord President said was in relation to a decision of the Secretary of State as provided for by paragraph 11 (1) of the Town and Country Planning (Inquiries Procedures) (Scotland) Rules 1964, but I understood Mr Melvin-Farr to submit that it applies more generally, which Miss Carmichael accepted. The Lord President said this:

"... the Secretary of State must give proper and adequate reasons for his decision which deal with the substantial questions in issue in an intelligible way. 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."

12. In order to develop his submission that the Adjudicator had failed to indicate in the Determination what evidence was accepted and what was rejected and, as a result failed to provide a intelligible decision, Mr Melvin-Farr referred me to two decisions: that of Schiemann J (as he then was) in R v Immigration Appeal Tribunal ex parte Mohd Amin [1992] Imm AR 367 and that of Lord Mackay of Drumadoon in Sattar. In Amin the special adjudicator was required to determine certain questions of fact, one of which was whether a marriage to which the applicant was a party had been entered into primarily in order to obtain admission to the United Kingdom. In quashing the refusal of leave to appeal the special adjudicator's determination, Schiemann J stated this at 374:

"In my judgment adjudicators should indicate with some clarity in their decisions:

(1) what evidence they accept;

(2) what evidence they reject;

(3) whether there is any evidence as to which they cannot make up their mind whether or not they accept it;

(4) what, if any, evidence they regard as irrelevant."

In Sattar Lord Mackay considers the review, by the English Court of Appeal, in Karanakaran v Secretary of State for the Home Department [2000] 3 All ER 449 [2000] Imm AR 271, of the decision of the Immigration Appeal Tribunal in Kaja v Secretary of State for the Home Department [1995] Imm AR 1. In Kaja, as appears from Sattar at 753B, a slightly different quadripartite division of evidence was referred to. Lord Mackay quotes from the judgment of Brooke LJ in Karanakaran. Brooke LJ is referring to the decision of the Immigration Appeal Tribunal in Kaja:

"What they decided was that when assessing future risk decision-makers may have to take into account a whole bundle of disparate pieces of evidence: (1) evidence that they are certain about; (2) evidence that they think is probably true; (3) evidence to which they are willing to attach some credence, even if they not go so far as to say that it is probably true; (4) evidence to which they are not willing to attach any credence at all. The effect of Kaja is that the decision-maker is not bound to exclude category (3) evidence as he/she would be if deciding issues that arise in civil litigation."

As Lord Mackay identifies, Brooke LJ explains at a later passage in his judgment ([2000] 3 All ER at 469g-470d) why decision-makers who are considering whether an asylum seeker faces the risk of persecution should not exclude "category (3) evidence" when assessing a case, as they are required to do, in the round. In Sattar while the adjudicator had indicated that she disbelieved the petitioner's evidence and considered certain parts of the documentary evidence to be false, she did not indicate that she had given any consideration as to whether she should assess any of the evidence as falling within category (3). Lord Mackay was therefore not persuaded that the special adjudicator had examined the petitioner's claim for asylum "in the round". He held this to be an error in law and, consequently, reduced the determination of the Immigration Appeal Tribunal refusing leave to appeal the adjudicator's determination.

13. What I take from these decisions is that where a decision-maker, such as an adjudicator, makes his decision on the basis of his assessment of the credibility or reliability of the evidence which has been put before him, in order for him to give proper and adequate reasons for his decision (which he is obliged to do) he must disclose, in an intelligible way, what that assessment is. Where the decision is in relation to an asylum application, for the reasons explained by Brooke LJ in Karanakaran, a proper and adequate exposition of reasons will include an identification of what might be described, under reference to either the Amin or Kaja categorisations, as the category (3) evidence. The need for proper and adequate reasons may require more than that from an adjudicator, but in this case I can stop at that point because it was the Adjudicator's failure to follow what was desiderated by Schiemann J in Amin, of which Mr Melvin-Farr complained. Amin was one of the authorities cited to Lord Penrose when Asif was before him in the Outer House (reported as Asif v Secretary of State for the Home Department 1999 SLT 890). At 894G, Lord Penrose said this:

"... nothing could be more destructive of the efficient disposal of immigration appeals than the notion that the adjudicator and the tribunal are under an obligation to carry through a mechanical 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."

As Miss Carmichael pointed out, that view was expressly agreed with by the Court in Singh v Secretary of State for the Home Department 2000 SC 219 at 223B. That is not to say that there will not be cases where the exercise desiderated by Schiemann J will have a place in providing a proper explanation of the decision, but it will not be required in every case. In particular, it will not be required in a case where the determination does not turn on an assessment of credibility. Agreeing with Miss Carmichael, I do not see this as a case which turned on the Adjudicator's assessment of credibility. As I have already indicated, I read paragraph 22 and what follows as the Adjudicator coming to the conclusions articulated at paragraphs 28 and 29, on the basis of which he dismisses the appeal, having assumed or accepted the Petitioner to be correct as to what he has represented in support of the factual propositions set out at paragraphs 5 and 6 of the Determination which, it is not disputed, were for the Petitioner to establish. I do not read the Determination as indicating that the Adjudicator rejected anything that the Petitioner had represented. Rather, he narrates what the Petitioner claimed to have occurred and the information available from the background material and proceeds to evaluate it. The Adjudicator did not attach great significance to what the Petitioner put forward in support of the critical factual propositions that it was for the Petitioner to establish, but he gives his reasons for this. In my opinion, the informed reader and the court are left in no real and substantial doubt as to what the reasons for the Adjudicator's decision were and what were the material considerations which were taken into account in reaching it. I accordingly reject the second submission for the petitioner.

The Third Submission for the Petitioner: error as to the petitioner's well founded fear of persecution

14. Mr Melvin-Farr submitted that the Adjudicator had erred in coming to the conclusion that the petitioner did not have a well founded fear of persecution. He submitted that, as appeared from a consideration of paragraphs 22, 23 and 24 of the Determination, the Adjudicator had not considered the petitioner's evidence as a whole. For the proposition that a well founded fear (otherwise a real risk - see Sivakumaran v Secretary of State for the Home Department [1988] AC 958) raised a single composite question Mr Melvin-Farr referred me to the judgment of Simon Brown LJ in Sandralingham and Others v Secretary of State for the Home Department (also cited as R v Secretary of State for the Home Department ex parte Ravichandran) [1996] Imm AR 97 at 109. Beyond that, Mr Melvin-Farr left his submission to speak for itself.
15. In reply, Miss Carmichael submitted that what the Adjudicator had done here was not what the adjudicator had done in Sattar, that is to have picked apart the evidence, piece by piece. The question that the Adjudicator had to determine was whether the petitioner had a well-founded fear of persecution for a reason which was relevant in terms of the 1951 Convention. That is the question that the Adjudicator had to address in the round. That the Adjudicator had looked at different aspects of the case individually does not indicate a failure to adopt the correct approach. What is sometimes complained of is an adjudicator discarding elements of a claim seriatim as incredible, rather than looking at matters overall to determine whether, on the whole, there is a well founded fear of persecution. Here, all items of evidence were considered in a measured way in order to determine their significance. That is precisely what an adjudicator is supposed to do. Karanakaran points to the need for a decision-maker to take great care about evidence he is not sure about, but in the present case the elements as to which there might be uncertainty are not material to the decision-maker's thought process.
16. I do not consider this criticism of the Adjudicator to be well founded and, accordingly, I reject the third submission for the Petitioner. What Simon Brown LJ said in the passage cited by Mr Melvin-Farr from Ravichandran at 109 was this:

"In my judgment, the issue whether a person or group of people have a 'well founded fear ... of being persecuted for [Convention] reasons' ... raises a single composite question. It is, as it seems to me, unhelpful and potentially misleading to try to reach separate conclusions as to whether certain conduct amounts to persecution, and as to what reasons underlie it. Rather, the question whether someone is at risk of persecution for a Convention reason should be looked at in the round and all relevant circumstances brought into account."

17. The courts have held that an adjudicator (or other decision-maker) must look at the question as to whether an applicant for asylum has a well founded fear of being persecuted for a relevant reason "in the round". There may be more than one aspect to this. What was said by Simon Brown LJ in Ravichandran emphasises one aspect: all the evidence bearing on this one question should be had regard to. The separate elements within that evidence should not be individually scrutinised with a view to being discarded if, in themselves, they do not support the conclusion that the applicant has a well founded fear of persecution. What was said in the passages from the judgments of Brooke LJ and Sedley LJ in Karanakaran, cited by Lord Mackay in Sattar, and that part of Lord Mackay's decision in Sattar which appears at 758F of the report in 2001 SCLR emphasise another: the need to have regard not only to the evidence which the decision-maker considers to be certainly true or probably true but also to that evidence to which the decision-maker is prepared to attach some credence. As appears from the judgment of Sedley LJ in Karanakaran at 479b to 480a, the two aspects are complementary. I do not detect here a failure by the Adjudicator to consider the single composite question under the 1951 Convention in the round. Notwithstanding his adverse comment upon the Petitioner's credibility at paragraph 22 of the Determination, the Adjudicator has considered the question as to whether the Petitioner had a well founded fear of persecution for a Convention reason on the assumption that what the Petitioner had said was true. No part of the Petitioner's account of the circumstances put forward in support of the contention that the Petitioner had a well founded fear of persecution was rejected. The Adjudicator has assessed the significance of the various circumstances relied upon by the Petitioner. He has come to conclusions about these various circumstances. That is part of the Adjudicator's function. He has then brought his conclusions into account in considering the questions which he had to determine under reference to the 1951 Convention and the 1950 Convention. I cannot regard that as doing other than looking at both questions in the round.

Decision

18. As I have rejected each of the Petitioner's grounds of challenge to the Determination, I shall repel the petitioner's second plea-in-law, which is the only plea for the petitioner which I was moved to uphold. I shall uphold the respondent's first, third and fourth pleas-in-law. It does not appear to me that I require to deal with the petitioner's first and third pleas-in-law or the respondent's second, fifth and sixth pleas-in-law. I shall accordingly dismiss the petition. I shall reserve all questions of expenses.