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Sachdev, Re Petition for Judicial Review [2005] ScotCS CSOH_26 (17 February 2005)

OUTER HOUSE, COURT OF SESSION

[2005] CSOH 26

P978/04

OPINION OF LORD EMSLIE

in the Petition of

KIRPAL SINGH SACHDEV (AP)

Petitioner;

for

Judicial Review of a Decision of the Immigration Appeal Tribunal to refuse him leave to appeal

Defender:

________________

Petitioner: Melvin-Farr; Allan McDougall

Respondent: Ms A. Carmichael; Solicitor to the Advocate General for Scotland

17 February 2005

Introduction
[1] The petitioner is a citizen of Afghanistan who arrived in the United Kingdom on or about 2 August 2002. On the same day he claimed asylum on the ground that he had a well-founded fear of persecution, if returned to Afghanistan, by reason of his Sikh religion. In due course, the Secretary of State for the Home Department refused the petitioner's application, that decision being intimated to the petitioner by letter dated 12 October 2002. The matter was then appealed to the Special Adjudicator sitting in Glasgow. After a hearing which took place on 20 December 2002, the Special Adjudicator refused the petitioner's appeal, and thereafter on 27 February 2003 the Immigration Appeal Tribunal refused the petitioner's application for leave to appeal against the Special Adjudicator's determination.

[2] The present petition is now brought for judicial review of the latter decision, counsel for the petitioner disclaiming any desire to have the determination of the Special Adjudicator set aside as well. The respondent is the Secretary of State for the Home Department. Put shortly, the petitioner maintains that there were legal and factual flaws in the Special Adjudicator's determination so obvious and so significant that the Immigration Appeal Tribunal's refusal to grant leave must be held unreasonable and irrational. In particular, certain objective evidence regarding the situation in Afghanistan, and directly relevant to the petitioner's fear of persecution if he were to be returned there, had plainly been left out of account. Moreover, the Special Adjudicator had failed to draw the necessary distinction between the petitioner's claim insofar as founded on the Refugee Convention (referred to in paragraph 4(i) below) and his claim based on violation of Article 3 of the European Convention on Human Rights. For the respondent, on the other hand, it is contended (i) that insofar as the alleged flaws were not raised in the petitioner's grounds of appeal, they were not obvious; (ii) that in any event none of the alleged flaws could be regarded as affording the petitioner a real prospect of success in any further appeal; and (iii) that the Immigration Appeal Tribunal's decision to refuse leave was one which, in the circumstances, they were entitled to reach and which should therefore not be disturbed.

[3] After sundry procedure, the First Hearing on the petition and answers has now taken place before me on 2 February 2005.

Statutory framework and legal principles
[4] Since I did not understand the relevant law in this area to be materially in dispute between the parties, the following brief summary may be given, together with a note of the authorities which were cited during the course of the debate:-

(i) Under the United Nations Convention and Protocol relating to the Status of Refugees (1951), and the relevant Rules made under the Immigration and Asylum Act 1999, a claimant seeking asylum as a refugee must demonstrate - the onus being on him - that he has a "well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion ..." if he were to be returned to his country of origin. Such a claim may also succeed on the alternative ground that to return him there would involve violation of his human rights, and in particular the fundamental rights conferred under Article 3 of the European Convention.

(ii) In both cases, the applicable standard of proof is that of "a reasonable degree of likelihood" that such consequences would ensue, this being a lower test than the ordinary civil standard of the balance of probabilities:- R v SSHD, ex parte Sivakumaran 1988 AC 958; Karanakaran v SSHD 2000 3AER 449.

(iii) Under the Immigration and Asylum Appeals (Procedure) Rules 2000, a claimant whose application for asylum is rejected by the respondent may appeal to the Special Adjudicator. If unsuccessful before the Special Adjudicator he may appeal further, but only with leave of the Immigration Appeal Tribunal under Rule 18(1). Under sub-paragraph (7) of the same Rule, leave may only be granted where the Tribunal is satisfied, either that an appeal would have a real prospect of succeeding, or that there is some other compelling reason why the appeal should be heard.

(iv) Although Rule 18(6) of the 2000 Rules provides that, in determining an application for leave, the Immigration Appeal Tribunal need only take account of such grounds as are advanced in the claimant's application, it is well settled that the Tribunal must also consider any other obvious point which is readily discernible upon examination of the Special Adjudicator's decision in light of the available materials. However, no exhaustive search for potential grounds of appeal is required, and in addition the Tribunal's obligation is limited to points which are not only obvious and readily discernible, but also sufficiently significant to qualify under Rule 18(7):- R v SSHD, ex parte Robinson 1998 QB 929 (esp. per Woolf MR at paragraph 39); R v SSHD, ex parte Kolcak 2001 Imm. A.R. 666; Parminder Singh v SSHD (Lord Penrose, unreported, 10 July 1998); Mutas Elabas v SSHD (Lord Reed, unreported, 2 July 2004).

(v) In considering an immigration appeal, or in determining a petition for judicial review in that context, it is incumbent on any Court or tribunal to carry out "the most rigorous examination" of the decision under review, and to subject it to "the most anxious scrutiny". This obligation is of particular importance where the result of a flawed decision may imperil the claimant's life or liberty and thus violate his fundamental human rights:- R v SSHD, ex parte Turgut 2000 Nat. & Imm. LR 292; R v SSHD, ex parte Bugdaycay 1987 AC 514 (esp. per Lord Bridge of Harwich at p.531, and Lord Templeman at p.537).

(vi) For the purposes of the required scrutiny, the Court or tribunal must have proper regard to such information as may be available concerning the social, political and human rights situation in the country concerned:- Asylum Law and Practice, Symes and Jorro, at p.724.

(vii) Judicial review remains, however, an exercise of the supervisory jurisdiction of the Court. It is neither an appeal nor a rehearing, and can only succeed where the petitioner is able to demonstrate one or more of the established grounds for review, notably illegality (in the sense that the decision under review is shown to have been in some way contrary to law) and irrationality (in the sense of the decision under review being shown to be one which no reasonable tribunal, correctly directing itself on the law and addressing the relevant facts, could properly have reached).

Submissions for the petitioner
[5] Against that background, counsel for the petitioner contended that, on an examination of the available evidence and materials, it should have been obvious to any decision-maker that there was a reasonable degree of likelihood of the petitioner's fundamental rights under Article 3 of the European Convention on Human Rights being breached if he were to be returned to Afghanistan. Since this was clearly vouched by the objective country information which was before him, the Special Adjudicator had acted unreasonably and irrationally in refusing the petitioner's appeal. As narrated at paragraphs 2 to 14 and 17 to 33 of the Special Adjudicator's determination, the petitioner gave written and oral evidence of harassment and persecution by, successively, the Mujahidin, the Taliban and the Northern Alliance. For many years Sikhs in Afghanistan had been segregated and ill-treated by the Muslim majority, and this was evident as late as December 2001 when the petitioner and his family were threatened with explosives in an attempt to compel the petitioner to fight on the front line against the Taliban. At paragraph 53, the Special Adjudicator indicated his willingness to accept "... that the whole of the appellant's account may be true". According to counsel for the petitioner, the objective evidence supported his client's concerns. In particular, the Afghanistan Country Assessment prepared by the Country Information and Policy Unit of the Home Office in October 2002 confirmed the degree of harassment and persecution to which the minority Hindu and Sikh populations in Afghanistan had been subjected. Paragraphs 6.32 to 6.39 of that Assessment were of particular relevance, detailing such problems from the early 1990s through to December 2001 and beyond. Reference was also made to a paper prepared by Amnesty International, the tenor of which was that the political situation in Afghanistan was far from stable; that crime and banditry were rife; that women and ethnic groups continued to be targeted; and that voluntary repatriation should not be encouraged. In the whole circumstances, it was said, no reasonable decision-maker faced with that material, and considering it anxiously in light of the severity of the risk to which the petitioner would be exposed if he were now to be returned to Afghanistan, could have failed to uphold the petitioner's claim to asylum.

[6] So far as the Immigration Appeal Tribunal was concerned, the petitioner's application for leave to appeal had referred briefly to the three-fold nature of his concerns, namely fear of the Taliban, fear of the Northern Alliance and the fact that he was a Sikh. Despite the brevity of that application, the points now at issue were obvious and readily discernible by the Immigration Appeal Tribunal, and indeed by the Court. Accordingly, in refusing leave, the Tribunal had also acted in an unreasonable and irrational manner. No reasonable Tribunal could properly have refused leave in such circumstances, and the petitioner's claim to judicial review should therefore be upheld to the extent of reducing the Tribunal's decision dated 27 February 2003.

Submissions for the respondent
[7] Counsel for the respondent accepted that, at paragraph 53 of his determination, the Special Adjudicator had been prepared to take the petitioner's account of his experiences in Afghanistan pro veritate. She also accepted that the Home Office Country Assessment of October 2002 tended to support and confirm that account for the period up to approximately December 2001 but, it was clear that such difficulties as the petitioner had faced were intimately connected with the former civil war between the Taliban and the Northern Alliance. This was, in particular, the context in which the petitioner had apparently been threatened and coerced by the Northern Alliance towards the end of 2001 but, as the Special Adjudicator noted at paragraph 38 of his determination, it was in December 2001 that the Northern Alliance, supported by US and UK forces, defeated the remaining Taliban troops who had fled to the northern city of Kandahar. The fall of Kandahar on 7 December 2001 signalled the end of the Taliban regime in Afghanistan. Since then, as paragraph 6.39 of the Country Assessment demonstrated, the situation in Afghanistan had considerably improved for members of religious minorities such as the petitioner. During 2002 the interim government had offered protection to Afghan Sikhs and Hindus who had fled from the country; those who remained had come to share the same temples as well as many religious ceremonies; and Sikh and Hindu delegates attending the Loya Jirga in June 2002 had reported that they were no longer repressed and felt free to practise their religions.

[8] Against that background, counsel for the respondent maintained that, even allowing for the most rigorous and anxious scrutiny, it could not be said that there was any obvious and readily discernible flaw in the Special Adjudicator's determination. All available materials had been taken into consideration; the correct issues had been addressed; and at paragraphs 55 to 57 in particular the Special Adjudicator had explained the basis on which his decision proceeded. Moreover, no potential appeal point having a real prospect of success had been identified for the purposes of Rule 18(7) of the 2000 Rules. The Immigration Appeal Tribunal had been well entitled to refuse leave to appeal in this case, and the Court should therefore sustain the respondent's second plea-in-law and refuse the prayer of the petition.

Discussion
[9] Having given careful and anxious scrutiny to the terms of the Special Adjudicator's determination in light of the underlying evidence and objective materials which were before him, I am not persuaded that the petitioner's case is made out. Even accepting pro veritate the petitioner's account of his experiences in Afghanistan prior to his leaving that country, it was in my view open to the Special Adjudicator to hold that the particular difficulties faced by the Sikh minority were intimately connected with the civil war between the Taliban and the Northern Alliance. That civil war came to an end in December 2001 with the overthrow of the Taliban regime, and according to the Country Assessment of October 2002 the situation had from then on changed dramatically for the better. Paragraph 6.39 of that document, dealing with developments in 2002, describes a situation significantly more favourable than that which had previously existed, and inter alia quotes reports by Hindu and Sikh delegates, at the Loya Jirga in June 2002, to the effect that they were no longer repressed and felt free to practise their religions. It is true that, in his evidence, the petitioner sought to claim the contrary, but no details were given to vouch or support that claim, and it was not suggested that his parents and brother, who remain in Afghanistan, had been subjected to harassment or persecution in or after 2002.

[10] In this context, I attach little significance to the paper prepared by Amnesty International to which reference was made during the debate. For one thing, counsel for the petitioner was unable to confirm that this document had been available to the Special Adjudicator in December 2002. However, even if that had not been so, the document is in fairly general terms; there is some doubt as to when it was prepared; and, significantly, it contains no reference to persecution of Sikhs or other religious minorities. In the whole circumstances I am inclined to agree with counsel for the respondent that none of the available documentation comes close to confirming the existence of any real risk of the petitioner being persecuted, or of his fundamental human rights being violated, in the event of his being returned to Afghanistan.

[11] Against that background, I remind myself that the evaluation and assessment of such cases has been entrusted by Parliament to the administrative system set up under the Immigration and Asylum Act 1999 and relative Rules. It is not for this Court, or indeed for the Immigration Appeal Tribunal, to attempt to substitute its own judgment for that of the Special Adjudicator, and it is certainly not open to this Court to interfere with the refusal of leave by the Tribunal unless one or more of the established grounds for supervisory relief is established. In my opinion, the petitioner has failed to demonstrate any obvious flaw in the Special Adjudicator's approach to this case. On the contrary, it is clear that the latter not only sought to apply the correct legal principles, but also manifestly took account of the petitioner's evidence and of all the other objective information available to him. Paragraph 55 of his determination deals specifically with the petitioner's claimed fear of the Taliban; paragraph 56 specifically deals with the petitioner's claimed fear of the Northern Alliance; and paragraphs 56 and 57 together reflect the significant change for the better which is reported to have taken place in Afghanistan since the end of 2001. In these circumstances it seems to me (i) that it was open to the Special Adjudicator to conclude, as he did, that the petitioner's application failed on both asylum and human rights grounds; (ii) that the petitioner has failed to identify any obvious appeal point which might be thought to have a real prospect of succeeding ; and (iii) that the Immigration Appeal Tribunal was accordingly entitled to refuse to grant him leave to appeal.

Decision
[12] For the foregoing reasons, in rejecting the petitioner's motion for reduction of the decision of the Immigration Appeal Tribunal dated 27 February 2003, I sustain the respondent's second plea-in-law, repel the plea-in-law for the petitioner and refuse the prayer of the petition.