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Rashid v. The Secretary Of State For The Home Department [2005] ScotCS CSIH_50 (17 June 2005)

EXTRA DIVISION, INNER HOUSE, COURT OF SESSION

Lord Hamilton

Lord Wheatley

Lady Paton

[2005CSIH50]

XA31/04

OPINION OF THE COURT

delivered by LADY PATON

APPEAL

BEENA RASHID

Appellant;

against

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT

Respondent;

_______

Act: R. Sutherland, Advocate; Allan McDougall & Co. (Appellant)

Alt: Lindsay, Advocate; H.F. Macdiarmid (Respondent)

17 June 2005

Application for asylum: assessment of credibility
[1] The appellant is a citizen of Pakistan. She was born on 1 February 1980. On 7 October 2002, she and her husband Asif Rashid entered the United Kingdom illegally. The appellant sought asylum on the basis of a well-founded fear of persecution by reason of being a member of a particular social group as defined in R. v. Immigration Appeal Tribunal, ex parte Shah and Islam [1999] 2 AC 629. In other words she sought asylum on the basis that she was a woman in Pakistan who was being persecuted by a member of her family, and who would be unable to avail herself of an appropriate level of protection from the state.

[2] By letter dated 10 December 2002, the Secretary of State for the Home Department (the respondent) refused asylum. The appellant appealed to an adjudicator. By determination promulgated on 25 April 2003 the adjudicator, having reviewed the evidence, took an adverse view of the credibility of the appellant and her husband. He rejected the appeal.

[3] The appellant appealed to the Immigration Appeal Tribunal (IAT). By determination notified on 10 November 2003, the IAT dismissed the appeal. The IAT refused leave to appeal to the Court of Session, but leave was granted by the Court of Session on 14 May 2004.

[4] In the appeal, counsel for the appellant argued that the adjudicator had erred in law in his assessment of the evidence and in particular in his approach to credibility. It was contended that the adjudicator had misunderstood or had failed properly to apply the principles set out in Karanakaran v. Secretary of State for the Home Department [2000] 3 All ER 449. Accordingly the adjudicator's determination and the decision of the IAT should be quashed, and the case (including both asylum and human rights issues) remitted to a fresh tribunal.

The adjudicator's determination
[5] Paragraphs 1 to 4 of the adjudicator's determination set out the events leading to the hearing before the adjudicator on 27 March 2003, at which the appellant was represented by a solicitor. Paragraphs 5 to 22 summarise the evidence. Paragraphs 23 to 36 give an outline of the submissions. Paragraphs 37 to 59 contain the adjudicator's reasoning and decision.

[6] The circumstances relied upon by the appellant were as follows: - The appellant and her mother lived in Lahore. Her mother remarried. The appellant's new step-father treated her harshly. When the appellant wished to marry Asif Rashid, her step-father beat her, broke her arm and inflicted a burn on that arm. He forbad her to marry Mr. Rashid. He said that if she did so, he would burn her alive. He told her that she must marry one of his friends, an older man.

[7] The appellant and Mr. Rashid ran away. They got married. They sought refuge with a friend of Mr. Rashid in Lahore. According to the appellant, her step-father then lodged a complaint with the police, alleging that Mr. Rashid had kidnapped her. The appellant and Mr. Rashid remained in hiding with the friend in Lahore. They made arrangements to leave Pakistan. After about six months, their arrangements were complete. They travelled to the United Kingdom, arriving on 7 October 2002.

[8] Of the documentary evidence relied upon by the appellant, one document bore to be a doctor's letter relating to her attendance at hospital after the claimed assault by her step-father, and one bore to be a First Information Report (FIR) - a document issued by the police recording a complaint, in this case, the step-father's complaint of kidnapping. Neither document was included in the appeal papers put before the Court of Session, but both documents were referred to in the determinations of the adjudicator and the IAT.

[9] In paragraphs 42 to 44 of his determination, the adjudicator recorded some of the background information available to him. Quoting from the CIPU report, he noted the serious penalties attaching to the crime of kidnapping, and the poor and over-crowded conditions in prisons. He outlined problems endemic in the police force in Pakistan, including the filing of FIRs without supporting evidence; the use of FIRs to harass or intimidate individuals; the generally low standard of professionalism in the police force resulting in corruption, extortion, and in some cases extra-judicial killings, torture, and rapes. The adjudicator also noted the subordinate and disadvantaged position of women in Pakistan; the significant number of women in Pakistan said to have been subjected to violence, abuse and rape by spouses and others; and the occurrence of honour killings.

[10] At the beginning of paragraph 45, the adjudicator observed that "the appellant's asylum claim has to be considered against the background of the objective evidence ...". In paragraphs 45 to 56, the adjudicator inter alia outlined certain aspects of the appellant's asylum claim which caused him to find the appellant and her husband incredible and to reject the appeal. For example, in paragraphs 45 and 46, the adjudicator noted that the appellant and her husband had managed to live in the same city as the step-father (Lahore) for six months without experiencing difficulty from either the step-father or the police. The adjudicator placed some weight on that fact, taking the view that "it would be known to the step-father and to the police that if they wanted to look for the appellant then the obvious person to search for was the appellant's husband and no doubt enquiries could have been made about the appellant's husband's known contacts". Further in paragraph 47 the adjudicator placed weight on Mr. Rashid's failure to attempt to clear his name with the authorities in Pakistan (a failure attributed by the appellant and her husband to their lack of confidence in the police).

[11] The adjudicator then in paragraphs 48 and 49 referred to difficulties with the medical letter or certificate. One difficulty was the date on the letter namely 20 March 2002 (being the date when the appellant left hospital) although the certificate had been obtained and posted to Britain only a short time before the hearing on 27 March 2003. Further the letter stated that it had been issued after verifying the daily patient record register of the hospital for the year 2000 (thought to be a typing error for 2002) - an exercise which struck the adjudicator as unnecessary if the letter had been compiled by the treating practitioner on the date of the appellant's discharge from hospital. The letter referred to "torture" of the appellant by the "local lady police", which the adjudicator found difficult to understand or to accept. Finally, the precise provenance of the document was unclear. The appellant's husband explained that it had been obtained by a friend.

[12] In paragraph 51, the adjudicator recorded that the FIR was in some respects satisfactory. However, he noted that the document might be a photocopy, and that it was not clear how it had been obtained. Having considered all the evidence, including the fact that the FIR was said to have come from the same friend who provided the doctor's letter (upon which the adjudicator felt unable to rely), the adjudicator concluded that it was difficult to place reliance upon the FIR.

[13] The adjudicator also noted:

"50. In terms of the decision in the case of Karanakaran I am entitled to separate out evidence which I think is true from evidence which I think is probably true and then I am entitled to separate out evidence which I think is probably true from evidence to which I am prepared to grant some credence. Finally, there may be evidence that I do not accept at all. The appellant definitely has a scar. I have seen that scar for myself. However, the fact that the appellant has a scar does not necessarily show how that scar came about. Even if it were the case that the appellant had suffered violence [at] the hands of her step-father, that would not show that the FIR was necessarily true ...

52. In the whole circumstances, while I accept that there is a possibility that the appellant was assaulted by her step-father, I am not persuaded that there is any police interest in the appellant or in the appellant's husband. It may be that the appellant would be sought after by her step-father. However I note from the CIPU Report that Pakistan is a country of 140 million people. If there is no police interest in the appellant or her husband, but only an interest on the part of the appellant's step-father, then I consider that the appellant and her husband would be able to live safely in another part of Pakistan.

53. It has to be born in mind that this is an asylum claim made by the appellant and not an asylum claim made by her husband, and even if it is the case that there is a police interest in the husband, which for the reasons indicated I do not accept, I do not see that the appellant would have a well founded fear of the police even though she might have a fear of her step-father.

54. I consider it appropriate to reject the asylum claim made by the appellant because I am not persuaded of the credibility of the appellant and her husband. Even taking the appellant's case at its highest, and ignoring the findings which I have made in the evidence, I consider that there is force in the submission made by the Presenting Officer that the husband had he wished to do so could have got in touch with the authorities in Pakistan and taken steps to clear his name. In my view, the fact that the husband took no such steps is significant. It may be that the husband took no such steps because the FIR was not genuine.

55. I accept that women are discriminated against in Pakistan. The Immigration Appeal Tribunal in the case of Liquiat dealt with an appellant who said her husband was likely to track her down and possibly kill her. The appellant in that case, however, was in fear of her husband. The appellant in the case which I am called upon to decide is not in fear of her husband but is in the company of her husband, travelling with him and would be in a position to enjoy a measure of protection from him.

56. In summary, I agree with the Presenting Officer that the six months spent in Lahore are of significance. I agree with the Presenting Officer that there would not appear to have been any police interest in the appellant or her husband during that six month period. I agree that no attempt has been made by the husband to clear his name in Pakistan. I accept that reliance cannot be placed upon either the letter from the doctor or the FIR. For these reasons I shall dismiss the asylum claim ..."

Submissions for the appellant
[14] Counsel for the appellant submitted that the adjudicator had erred in law in his assessment of the evidence, and in particular in his assessment of credibility. He had either misunderstood, or failed properly to apply, the principles set out in Karanakaran v. Secretary of State for the Home Department [2000] 3 All ER 449. In the light of the errors made by the adjudicator, the IAT ought to have allowed the appeal from the adjudicator's determination. The IAT had accordingly erred. Both the determination of the adjudicator and the decision of the IAT should be quashed, and the case remitted to a fresh tribunal to deal with all matters de novo.
[15] The background information set out in paragraph 43 et seq. of the adjudicator's determination supported the fact that the appellant's step-father could have gone to the police and registered a false report. Mr. Rashid had been put at risk of being arrested, removing any practical ability which he might have to protect his wife from her step-father who had vowed to kill her. The background information also supported the view that, in general, the appellant as a woman was less likely to be accorded the appropriate level of protection by the state through the police.

[16] Counsel referred to R. v. Secretary of State for the Home Department, ex parte Sivakumar [2003] 1 WLR 840; [2003] 2 All ER 1097, at paragraphs [19], [29] and [42]; Karanakaran v. Secretary of State for the Home Department, cit. sup., at pages 459g-j; 468d-469a; 469h-470d; and 476b-477j; the UNCHR Guidelines, excerpted from Butterworths Immigration Law Service; and an Australian case Meadows v. Minister for Immigration and Multicultural Affairs [1998] 1706 FCA (23 December 1998). Applying the principles in Karanakaran, only evidence which was plainly unreliable (the fourth category) should be discarded. If a document were to be held to be in that category and therefore to be left out of account, that did not mean that the case in support of which the document had been put forward was automatically wrong or false.

[17] Counsel submitted that if all the evidence was generally consistent with the appellant's account, then the proper approach in the face of a consistent body of evidence was to accept the appellant's account. In other words, if the appellant gave a credible account, and if that account was not contradicted by anything else, the decision-maker had no reason not to accept that account.

[18] A person applying for asylum had of course a duty to make an effort to obtain evidence to support his or her case. It was not uncommon for people to try to obtain further information in support of their appeal, and for that information to arrive shortly before an appeal hearing.

[19] Counsel referred in some detail to paragraphs 50, 51, 48, 49, 45, 46, and 47 of the adjudicator's determination (in that order). He submitted that nowhere could one find an analysis of the appellant's case amounting to a rounded assessment of all the matters which might be in the appellant's favour.

[20] Paragraph 50 suggested that the adjudicator might have misunderstood how the evidence was to be assessed in terms of Karanakaran. In that paragraph, the adjudicator noted:

"In terms of the decision in the case of Karanakaran I am entitled to separate out evidence which I think is true from evidence which I think is probably true and then I am entitled to separate out evidence which I think is probably true from evidence to which I am prepared to grant some credence. Finally, there may be evidence that I do not accept at all ..."

Counsel submitted that the adjudicator appeared to treat the evidence as discrete parts, and to play one part against another, without viewing the evidence as a whole and assessing the evidence which fell into the first three categories in Lord Justice Brooke's list in Karanakaran. The adjudicator appeared to separate out strands of evidence, and in a variety of ways to find a reason to dismiss each piece of evidence.

[21] In relation to the medical certificate, it was understandable that the family would not wish to name the step-father as the perpetrator of the injuries. Bearing in mind the background information about the flawed police system, it was not bizarre to blame the police, or to specify that a female officer had been responsible for the appellant's injuries. In relation to the FIR, no good reason had been advanced for doubting that document. In particular it was not a good reason for questioning the authenticity of the FIR that it had emanated from the same source as the medical certificate. So far as the six month period with a friend in Lahore was concerned, the appellant and her husband had been in hiding, not carrying on normal lives. It was not therefore significant that they had experienced no trouble from the police or the step-father. Finally, no attempt had been made to clear Mr. Rashid's name with the authorities because neither he nor the appellant trusted the Pakistani police.

[22] In conclusion, counsel submitted that there were two essential errors in law. First, and most important, the adjudicator had not considered all the evidence falling into the first three categories in Lord Justice Brooke's list in Karanakaran, in order to ascertain if there was sufficient to satisfy the evidential burden, bearing in mind the lower standard of proof in asylum cases. Secondly, he had made errors when analysing the discrete parts of the evidence. In particular he seemed to adopt the approach of applying the principles in Karanakaran to one particular piece of evidence. Further he took two disparate pieces of evidence which were not logically linked, and concluded that he could not accept the second because it was not tied to the first. For example, in paragraph 50 he commented that "Even if it were the case that the appellant had suffered violence [at] the hands of her step-father, that would not show that the FIR was necessarily true."

[23] Counsel's attention was drawn to the passage at page 293F of Kulwinder Singh v. Secretary of State for the Home Department, 2000 S.C. 288. Counsel did not dispute that passage, but pointed out that the appellant was engaged in a different challenge. The appellant's submission was that the adjudicator had failed in the way he had gone about the evaluation of the evidence. The adjudicator had failed properly to apply the test in Karanakaran.

[24] The court was invited to allow the appeal.

Submissions for the respondent
[25] Counsel for the respondent submitted that the appeal should be refused. The appellant had not demonstrated any error of law on the part of the IAT or the adjudicator.

[26] It was conceded that if an adjudicator misunderstood or misapplied Karanakaran, that would amount to an error of law: cf. Hanif v. Secretary of State for the Home Department, 1999 S.C 337. But in the present case, the adjudicator had properly understood and properly applied Karanakaran. He had taken into account all relevant and material evidence, and had applied the correct test. In such a situation, assessment of the weight of the evidence was a matter for the adjudicator: Kulwinder Singh, cit. sup.; Asif v. Secretary of State for the Home Department, 2002 S.C. 182, in particular paragraph [17]. The adjudicator's assessment of the evidence could be challenged only on the ground of unreasonableness in the sense defined in Associated Provincial Picture Houses Ltd. v. Wednesbury Corporation [1948] 1 KB 223. In effect, it was necessary to show that only a perverse adjudicator could have come to such a conclusion. In the present case, the adjudicator had focused "a series of questions which required answers or explanations" (cf. dicta of Lord Coulsfield in Asif, cit. sup.). For example, there were questions relating to the letter from the doctor; the FIR; and the period of six months at the home of a friend of Mr. Rashid in Lahore without experiencing any trouble from the police. The adjudicator's approach could not be said to be Wednesbury unreasonable.

[27] In relation to Karanakaran, counsel submitted that the decision was generally taken to mean that an adjudicator had to look at all the evidence in its totality before taking a view on credibility and reliability. Only evidence which was regarded as patently untrue should be discarded. Thereafter the exercise of weighing up the evidence could cut both ways, and could lead to positive findings (if consistent with other pieces of the jigsaw) or negative findings (if not fitting well with the rest of the evidence). Counsel submitted that such an exercise had been undertaken in relation to the FIR and the doctor's letter, and that the adjudicator's doubts had been reinforced by the remainder of the evidence.

[28] While an overall view of the evidence had been taken, the only way of recording the exercise was in a sequential manner. An adjudicator had to bear in mind the duty to give adequate and comprehensible reasons: Daljit Singh v. Secretary of State for the Home Department, 2000 S.C. 219. Counsel submitted that, in the present case, the sequential narration of the evidence by the adjudicator was a fulfilment of his duty to explain why he did not believe some evidence. It was not that he had viewed a piece of evidence in isolation. It was not an indication of a failure properly to apply the Karanakaran test.

[29] Counsel for the respondent then turned to the individual criticisms made of the adjudicator's determination. Paragraph 50 demonstrated that the adjudicator had Karanakaran and the four different classifications of evidence at the forefront of his mind. Nothing in that paragraph suggested that Karanakaran had been misunderstood or misapplied, or that any error of law had occurred. There were numerous other references to Karanakaran throughout the determination where the adjudicator demonstrated that he was mindful of the principles to be applied: for example, in paragraphs 38, 39, 45, 48, and 51. The adjudicator clearly understood the test in Karanakaran, and properly applied it. The weight which he gave to the medical certificate and the FIR could only be challenged on Wednesbury grounds, and such grounds had not been made out. There was nothing irrational or unreasonable in the determination.

[30] In relation to paragraphs 50 and 52, the adjudicator was entitled to accept, as he had, "that there [was] a possibility that the appellant [had been] assaulted by her step-father", but that did not necessarily show how any assault came about, or that the evidence about the FIR was necessarily true. The adjudicator was entitled to take the view that there was no inevitable inference arising from the assault that a complaint of kidnapping had been made to the police.

[31] So far as paragraph 51 was concerned, the adjudicator was entitled to take into account the fact that two pieces of evidence (the medical certificate and the FIR) had come from one source, a friend of Mr. Rashid. As the adjudicator had a doubt about the authenticity of one piece of evidence, it was reasonable for him to have a doubt about the other piece of evidence. To comment that the FIR was "in some respects satisfactory" was a fair approach. The reference to the document possibly being a photocopy reflected the adjudicator's specialist knowledge. It was more difficult to ascertain if a photocopy was a copy of a genuine document, or if names and dates had been changed. The adjudicator was entitled to take into account the fact that the document might be a photocopy.

[32] Paragraphs 48 and 49 recorded reasonable doubts about the medical certificate. Counsel submitted that if a doctor received information about torture by the local police, he would note that he had been "told" that information, or that the information had been "reported" to him, rather than stating the information as a matter of established fact. The approach of the adjudicator could not be criticised as Wednesbury unreasonable. The way in which the medical certificate had been obtained was also a relevant consideration, as was the date on the certificate (20 March 2002, being the date of the appellant's discharge from hospital). If the letter had been obtained by Mr. Rashid's friend shortly before the hearing in early 2003, it was not clear why the certificate was not dated early 2003. Finally, it was submitted that the fact that the writer of the certificate recorded that he had checked the medical records for the year 2000 (thought to be intended to be 2002) made sense only if the certificate had been prepared some time after the appellant's discharge from hospital. In all the circumstances, it was reasonable for the adjudicator and the IAT to conclude that no weight should be attached to the medical certificate.

[33] In relation to the six month period in Lahore (paragraph 47 of the determination), it was again reasonable for the adjudicator to take into account the fact that the appellant and her husband had been able to remain with a friend of Mr. Rashid in Lahore (the city in which the step-father lived) without any trouble or interference from the step-father or the police. That fact raised the question whether it was true that the police and the step-father were looking for the appellant and her husband. Mr. Rashid's friends would be an obvious avenue of inquiry for the police and the step-father.

[34] Ultimately the adjudicator was not persuaded that there was any police interest in the appellant and her husband, as set out in paragraph 52. His conclusion could not be criticised. The appeal should be refused.

Decision
[35] Counsel were agreed that a failure properly to understand or to apply the principles in Karanakaran would amount to an error of law: Hanif, cit. sup. Counsel were also agreed that, where no such error could be identified, questions of credibility and reliability were for the decision-maker, and decisions relating to credibility and reliability could be challenged only on the ground that they were Wednesbury unreasonable: Kulwinder Singh, cit. sup.; Asif, cit. sup.

[36] Counsel for the appellant confirmed that his argument was founded on a misapplication of the principles in Karanakaran.
[37] We have been unable to identify any misunderstanding or misapplication of the principles set out in Karanakaran. The adjudicator made frequent reference to Karanakaran, and his approach reflected the guidance contained therein. The adjudicator mentioned his duty to consider "all of the evidence in the round" (paragraph 51), and in our view he did so. In particular he considered all the evidence falling into the first three categories in Karanakaran. He gave a reasoned analysis of the evidence. In the course of his analysis, he observed in paragraph 50 that "Even if it were the case that the appellant had suffered violence [at] the hands of her step-father, that would not show that the FIR was necessarily true." That observation is self-evident and cannot be criticised.

[38] The adjudicator had to explain why he gave little or no weight to certain parts of the evidence: Daljit Singh v. Secretary of State of the Home Department, 2000 S.C. 219. In so doing, his analysis of necessity focused on discrete parts of the evidence. Thus he identified difficulties and questions arising in relation to the medical certificate (paragraph [11] above); the FIR (paragraph [12] above); the lack of any attempt to clear Mr. Rashid's name with the authorities in Pakistan (paragraph [10] above); and the period of six months in Lahore without any trouble from the step-father or the police (paragraph [10] above). Such questions "required answers or explanations": cf. Asif, cit. sup. The adjudicator concluded that he could not place any reliance or weight on the two documents, namely the medical certificate and the FIR; that the six untroubled months spent in Lahore and the lack of any attempt to clear Mr. Rashid's name were significant matters, suggestive of a lack of police interest; and that he did not find the appellant or her husband credible. Ultimately he concluded that the appellant and her husband would be able to live safely in another part of Pakistan, and that the appellant had not made out a case for asylum.

[39] Against that background, we are unable to conclude that the adjudicator misunderstood or misapplied the principles in Karanakaran. That being so, the adjudicator's assessment of credibility is challengeable only on Wednesbury grounds: cf. Kulwinder Singh, cit. sup.; Asif, cit. sup. There was no foundation for a Wednesbury challenge in the present case, and counsel for the appellant very properly did not advance such an argument.

[40] In the circumstances, the appeal is refused.