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Abdulaziz, Re Application for Judicial Review [2005] ScotCS CSOH_61 (13 May 2005)

OUTER HOUSE, COURT OF SESSION

[2005] CSOH 61

OPINION OF LORD KINCLAVEN

in the Petition of

MWANASITI ALI ABDULAZIZ

Petitioner;

for

Judicial Review of a decision by the Immigration Appeal Tribunal for Refusal to Grant Leave

________________

Petitioner: Melvin-Farr; Drummond Miller WS.

Respondent: A F Stewart; Solicitor to the Advocate General for Scotland.

13 May 2005

Introduction
[1] This is a petition for judicial review concerning an application by Ms Abdulaziz for asylum. Her application was refused and an Adjudicator refused an appeal. The Immigration Appeal Tribunal refused leave to appeal.

[2] In the Petition, as amended, Ms Abdulaziz seeks declarator that the Immigration Appeal Tribunal erred in law refusing her leave to appeal to the Tribunal.

[3] I have decided to dismiss the Petition for the reasons outlined below.

The Background
[4] The petitioner, Mwanasiti Ali Abdulaziz, arrived in the United Kingdom on or about 24 April 2001. She claimed asylum for herself and her three children the same day. She did so on the grounds that she has a well-founded fear of persecution in Somalia. In order to qualify for asylum under the terms of the 1951 Geneva Convention relating to the Status of Refugees, to which the United Kingdom is a signatory, an applicant must show that he or she has a well-founded fear of persecution for reasons of race, religion, nationality, membership of a particular social group or political opinions. By letter dated 25 August 2001 an Immigration Officer intimated to the petitioner that the respondent, The Secretary of State for the Home Department, had decided to refuse to grant asylum.

[5] The petitioner appealed under section 69 of the Immigration and Asylum Act 1999. The Petitioner also appealed under section 65 of the same Act on the ground that it would constitute a breach of Articles under the 1950 Convention for the Protection of Human Rights and Fundamental Freedoms (the 1950 Convention). The appeal was heard in Glasgow on 22 May 2002 by an Adjudicator, Mrs S M Agnew. By decision dated 17 June 2002 the Adjudicator refused the petitioner's appeal. The petitioner then appealed to the Immigration Appeal Tribunal.

[6] By a decision dated 8 July 2000 the Immigration Appeal Tribunal refused the petitioner leave to appeal.

The Adjudicator's Determination
[7] As the parties are familiar with the productions I do not propose to rehearse full terms of the Adjudicator's Determination (Production No. 6/1 of Process). It runs to 15 pages of single-spaced type.

[8] At the outset it probably suffices to note the following parts of the Determination.

In relation to the fear of being persecuted, the Adjudicator states in paragraph 3 that:

"The standard of proof for establishing such fear is that of a reasonable degree of likelihood, in accordance with Karanakaran [2000] Imm AR 271."

The Adjudicator also mentions inter alia (in paragraph 7(iv) of her determination) that:

"The appellant adopted her statement as her evidence and also gave oral evidence at the hearing with the assistance of an interpreter. She was cross examined, asked some questions by me and re-examined."

The Adjudicator's conclusion (in paragraph 42) was as follows:

"The appellant has failed to establish to any standard that there is a risk of her being persecuted for a Refugee Convention reason should she be returned to Somali or that the return of her and her dependants will engage the United Kingdom's obligation under the 1950 Convention. I will therefore dismiss the appeal."

I will comment further on the Adjudicator's Determination below.

The Determination of the Application for Leave to Appeal
[9] The Determination (by the Immigration Appeal Tribunal) of the Application for Leave to Appeal is produced as No. 6/3 of Process. The application was before Mr J Barnes (Vice President) who states inter alia:

"3. I have considered the determination of the adjudicator in the light of the grounds of appeal and the evidence before her. The adjudicator has given a very full and carefully reasoned determination in which she does not find the Applicant to be a citizen of Somalia, and so dismisses the appeal. Whilst it might be possible to level the criticism at ground 1 of the grounds of appeal against one or two bases of consideration of the adjudicator, the proper approach is to consider the determination as a whole. On so doing, the factors contrary to the truth of her claimed nationality become cumulatively of increasing weight. I note particularly what is said in relation to the consideration of the birth certificate, which in my view appropriately applies the approach recommended in Tanveer Ahmed [2002] UKIAT 00439, and that the Applicant spoke standard Swahili and not the dialect appropriate to her claimed origin although she had only been in Kenya, on her evidence, for a very short period. I do not consider the adjudicator's rejection of the credibility of the Applicant's claims can arguably be said to be unsustainable on the evidence before her. The adjudicator had the advantage of seeing and hearing the Applicant give evidence and the Tribunal will not lightly interfere with the factual findings of an adjudicator who has done so in the absence of any error of law or of approach on the part of the adjudicator. I can detect no such error. It is not in my view arguable that the findings and the conclusions drawn from those findings are unsustainable.

4. For the above reasons, the grounds of appeal raised no arguable issue having a real prospect of success, the relevant criteria for grant of leave to appeal.

5. Leave to appeal is refused."

The Submissions for the Petitioner
[10] Against that background, Mr Melvin-Farr, counsel for the petitioner, submitted that the Immigration Appeal Tribunal had erred in refusing leave to appeal.

[11] I was referred to the provisions of Rule 18 of the Immigration and Asylum Appeals (Procedure) Rules 2000 which was in force at the material time (especially Rule 18 paragraph (1), paragraph (4)(c) and paragraphs (7)(a) and 7(b)).

[12] Rule 18(7) provided:-

"Leave to appeal shall be granted only where -

(a) the tribunal is satisfied that the appeal would have a real prospect of success; or

(b) there is some other compelling reason why the appeal should be heard."

[13] Mr Melvin-Farr referred me to the cases of R v Secretary of State for the Home Department and another, ex parte Robinson [1997] 4 All ER 210 (especially at paragraphs 9, and the section headed "Grounds not referred to in the notice of appeal" at paragraphs 30, 31, 37, 38 and 39). That case is relevant because the petitioner found herself in a Robinson situation. The point being argued on her behalf was not specifically mentioned in her Grounds for Leave to Appeal to the Tribunal.

[14] Mr Melvin-Farr also referred me to R v Secretary of State for the Home Department ex parte Abdul Aziz Kolcak [2001] 1 Imm A R 666 (especially at paragraphs 10, 11, 12, 13).

[15] In Robinson, Lord Woolf MR stated inter alia (at paragraph 39):

"It follows that leave to apply for judicial review of a refusal by the tribunal to grant leave to appeal should be granted if the judge is of the opinion that it is properly arguable that a point not raised in the grounds of appeal to the tribunal had a strong prospect of success if leave to appeal were to be granted."

[16] In Kolcak, Stanley Burnton J, stated inter alia (at paragraphs 13):

"In this court at the leave stage - permission to apply stage - a claimant must establish that it is properly arguable that the point would have had, or did have, a strong prospect of success and at this stage must establish that it did have a strong prospect of success. That, of course, is a high hurdle."

[17] In the present case, a major issue was one of nationality and in particular whether the Petitioner was in fact a member of the Bajuni group. The Adjudicator mentions that "major issue" in paragraph 11 of her Determination (Production No. 6/1 of Process). If the petitioner was a member of the Bajuni group, then asylum would normally be granted and that conclusion was not disputed by the respondent. There was no real dispute that, in principle, the question of what languages were spoken was an important factor in deciding whether a person was, or was not, a Bajuni.

[18] On behalf of the petitioner, Mr Melvin-Farr accepted that if the Adjudicator was entitled to reach the conclusion which she did, in relation to non-membership of the Bajuni group, then the Petition fell to be dismissed.

[19] In essence, Mr Melvin-Farr argued that the Adjudicator was not entitled to make the finding that the petitioner was not a member of the Bajuni group and that she was wrong to do so.

[20] The Immigration Appeal Tribunal, it was submitted, should have concluded (a) that there was an obvious point of convention law in relation to nationality and (b) that it had a strong prospect of success.

[21] The onus was on the petitioner but the standard of proof to be applied was the lower one appropriate to asylum cases as set out in Karanakaran [2000] Imm AR 271 (especially at pages 302 and 303). If the Adjudicator had applied the correct test she should have concluded that the petitioner was a member of the Bajuni group. It was a question of evaluation of future risk. There was a reasonable degree of likelihood that she was a Bajuni.

[22] In support of his submission, Mr Melvin-Farr also drew my attention to various passages from the documentary productions. "The Operational Guidance Note: Somalia" issued by the Immigration and Nationality Directorate (pages 20 to 22 of Production No. 6/4 of Process) contained details of the language characteristics of Bajuni. The Danish Immigration Service document "Introduction to the Minority Groups in Somalia" (pages 15 to 19 of Production No. 6/4) was also referred to in relation to language (particularly at paragraph 5.2).

[23] Mr Melvin-Farr emphasised that the Adjudicator herself had accepted that she was not a linguistic expert or from the area (in paragraph 13 of her Determination - No. 6/1 of Process). The Adjudicator herself also mentions (in paragraph 17) that "The appellant stated at the hearing that her language was Swahili although she said she could also speak Kibajuni".

[24] In the circumstances, Mr Melvin-Farr submitted in effect that the Adjudicator had misdirected herself (a) by purporting to decide a question of language when she was not a linguistic expert and (b) by referring to "standard Swahili" (in paragraph 17 of the Determination). There was some evidence relating to Kibajuni and Swahili but no evidence in relation to something called "standard Swahili" which is what the Adjudicator founded upon.

[25] It was also submitted that the Adjudicator had erred in failing to follow the case of Secretary of State for the Home Department v Maxamed Xasan Harrun [2002] UKIAT 00656. That was an appeal by the Secretary of State in a case where the applicant had claimed to be a Bajuni and where the question of language was considered. The Immigration Appeal Tribunal reached the following conclusion, on the facts of that particular case, namely (in paragraph 16):

"It is clearly right that at best it would only be a relatively limited number of Bajunis who speak Swahili. Equally it must be the case that a lot of documents produced from Somalia are forgeries. However, in our view, bearing in mind the standard of proof appropriate to this case, and bearing in mind the issues in relation to which the appellant's (sic) credibility is challenged, we conclude that he has satisfied us as to his credibility both as regards the authenticity of the documentation provided and as to the reasons why he does not speak any language other than Swahili. It follows that we accept his claim to be a Bajuni and therefore find his history credible as did the Adjudicator."

[26] Finally, Mr Melvin-Farr suggested that the provisions of the United Nations Handbook (reproduced in Butterworth Immigration Law Service at page 132) also required to be borne in mind. Paragraph 196 of the Handbook makes the point that certain statements may not be susceptible to proof and that:

"In such cases, if the applicants account appears to be credible, he should, unless there are good reasons to the contrary, be given the benefit of the doubt."

[27] In the result, and essentially for the reasons outlined above, Mr Melvin-Farr invited me to sustain the Petitioner's first, second and third pleas-in-law.

The Submissions for the Respondent
[28] Mr Stewart invited me to dismiss the petition for the following reasons.

[29] There is no real dispute between the parties as to the relevant test. It is whether there is an obvious point of convention law which has a real prospect of success. However, it is instructive to bear in mind the Opinion of Lord Reed in the case of the Mutas Elabas, Petitioner dated 2 July 2004 (especially at paragraphs 14, 21, 22 and 23) where, as here, the court is exercising its supervisory jurisdiction.

[30] In relation to Ex parte Robinson, Lord Reed states in paragraph 23:

"It appears from that decision, therefore, that the tribunal is not required to engage in a search for points of law which are not raised in the grounds of appeal. It is on the other hand not limited by the arguments advanced, and should grant leave to appeal of it discerns a point of Convention law which has a strong prospect of success if it is argued."

[31] At paragraph 23 Lord Reed continues as follows:

"It is however important to bear in mind that obviousness is emphasised in both Ex parte Robinson and Ex parte Kolcak. As Lord Penrose observed in Parminder Singh v Secretary of State for the Home Department, 10 July 1998 (unreported):

'Whatever else this indicates, it is clear that there is and can be no duty to pursue each and every hypothesis that could be postulated in the search for possible grounds for support of an appeal which may have escaped the notice of the appellant's advisers.'

In the same case, Lord Penrose also said:

'It seems to me that in considering whether the IAT has erred in relation to matters of fact, or to inferences properly to be drawn from facts and circumstances, one is concerned only with the clear, the obvious, with questions that cry out for answer.'

I respectfully agree with those observations, which reflect the limited nature of the court's supervisory jurisdiction over the tribunal. Although counsel for the petitioner in the present case understandably emphasised the need for 'anxious scrutiny', it is necessary to remember that the court's jurisdiction to interfere with the decisions of adjudicators or of the tribunal is based on the same fundamental principles as apply in other areas of administrative responsibility. Although the tribunal is not restricted by Wednesbury principles in considering whether to entertain an appeal, the court has to apply those principles in deciding whether to interfere with the tribunal's decision."

[32] Mr Stewart also highlighted some features of the history of the application.

[33] In particular, the Grounds for Leave to Appeal to the Tribunal (No. 6/2 of Process) make no mention of the "language" argument which is now being advanced by the petitioner. The petitioner is in a Robinson situation - as was not disputed.

[34] Mr Stewart submitted that the Determination of the Application for Leave to Appeal, by the Immigration Appeal Tribunal, (No. 6/3 of Process) was correct. The credibility of the present petitioner was in issue.

[35] He also submitted that the Determination of the Adjudicator (No. 6/1 of process) was a proper one. It had been based on the issue of credibility. The question of language was only one of several factors. There was no real prospect of success by the petitioner. The Adjudicator was entitled to come to the conclusion which she did.

[36] "Credibility" was important in Hurran and is specifically referred to in the UN Guidelines at paragraph 196.

The Adjudicator's Determination - some further comments
[37] I should also record that Mr Stewart on behalf of the respondent directed my attention to various paragraphs in the Adjudicator's Determination. In particular:

in paragraph 12 the Adjudicator indicates that she was "not satisfied with the various explanations put forward for the appellant's failure to attend for interview";

in paragraph 13 the Adjudicator mentions that the appellant failed to attend for interview "to test her origins by the use of an interpreter at interview";

in paragraphs 14 & 15 the Adjudicator deals with language features;

in paragraph 15 she specifically mentions that "The dialect of Swahili referred to as Standard Swahili was established in 1930 by the Inter Territorial Language Committee";

in paragraph 16 the Adjudicator deals with the case of Harrun. She specifically mentions that "the adjudicator (in Harrun) had accepted the respondent as credible";

in paragraph 17 the Adjudicator states:

"So far as I can ascertain from the Swahili interpreter used at the hearing by the appellant, the appellant speaks what is referred to as standard Swahili. The appellant stated at the hearing that her language was Swahili although she said she could also speak Kibajuni."

(That last sentence, Mr Stewart submitted, was simply a summary of what the appellant had stated and was not an acceptance by the Adjudicator that what the appellant had said was in fact true.);

in paragraph 18 the Adjudicator continues as follows:

"Bearing in mind the low standard of proof in asylum cases together with the problems I have stated above in this case as regards the appellant's failure to attend the interview and the disparate information provided concerning language, I turn now to consider the other evidence in this matter which findings could assist in my determination of this appeal."

[38] The Adjudicator then goes on to consider in detail various matters which have a bearing on the credibility of the present Petitioner all as set out in paragraphs 19 to 34 (pages 7 to 13) of her Determination. In paragraph 35 the Adjudicator states:

"I do not find the evidence of the appellant plausible and did not find her to be a credible witness."

The final two paragraphs of the section of the Adjudicator's Determination headed "relevant findings in fact and reasons therefore" (paragraphs 36 and 37) are in the following terms:

"36. I have set out above, a number of implausibilities and inconsistencies in the appellant's claim. I have not closed my mind to the possibility of drawing favourable inferences from the consistencies within the appellant's accounts. However, the cumulative effect of these matters is such that in my view no credence can be given to the appellant's account. The appellant has failed to establish that the events she purported to describe did in fact occur. I find that the appellant is not from Somalia, nor is she a member of the Bajuni tribe living in Koyama until 2001 as she claimed.

37. In conclusion, I do not find that the state or any other group of individuals have persecuted the appellant. The appellant has not discharged the burden of proof based on the low standard which rests with her to show that she has a well-founded fear of persecution for a Convention reason in the event of her return to Somalia. I thus dismiss the claim for asylum under the Refugee Convention."

In the section of the Determination which is headed "Human Rights" the Adjudicator concludes that there has been no breach of those rights. She gives her reasons at paragraphs 38 to 41.

[39] The Adjudicator dismissed the appeal. Her conclusion is in her paragraph 42 (which is set out above).

Decision
[40] I have given careful and anxious consideration to the decisions under scrutiny in this case and I have had regard to all the submissions advanced on behalf of the petitioner. I am grateful to counsel for focussing the issues.

[41] In the result, I have decided to dismiss the petition for the following reasons:

(i) I agree, in essence, with the submissions advanced by the respondent;

(ii) I am not persuaded that there is an obvious point of convention law in the petitioner's favour;

(iii) even if there was, it seemed to me that it had no prospect of success;

(iv) it seems clear that Ms Abdulaziz, the Petitioner has been found to be incredible. Her claims have not been believed;

(v) lack of credibility distinguishes the present case from the case of Harrun;

(vi) the United Nations Guideline, at paragraph 196, is prefaced with the words "if the applicant's account appears to be credible" (emphasis added);

(vii) on the information before her, the Adjudicator was entitled to come to the conclusion which she did;

(viii) the decision of the Immigration Appeal Tribunal was concise and sound.

I am not satisfied that the Court, in the exercise of its supervisory jurisdiction, should interfere with the decision of the Immigration Appeal Tribunal, or the Adjudicator, in this particular case.

[42] For the reasons outlined above, I shall (a) sustain the pleas in law for the Respondent and (b) repel the pleas in law for the Petitioner, and (c) dismiss the petition.