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You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> BM, Re Application for Judicial Review [2005] ScotCS CSOH_97 (26 July 2005)
URL: http://www.bailii.org/scot/cases/ScotCS/2005/CSOH_97.html
Cite as: 2006 SCLR 177, [2005] ScotCS CSOH_97, [2005] CSOH 97
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BM, Re Application for Judicial Review [2005] ScotCS CSOH_97 (26 July 2005)
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OUTER HOUSE, COURT OF SESSION [2005] CSOH 97 |
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P290/04
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OPINION OF LADY PATON in the petition of B M Petitioner: for Judicial Review of an Adjudicator's decision and Judicial Review of the Immigration Appeal Tribunal's refusal to grant leave
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Petitioner: Melvin Farr, Advocate; Wilson Terris SSC
Respondent: R. N. Thomson, Advocate; Advocate General's Office
26 July 2005
Application for asylum: interpreter's services
[1] The petitioner was born on 1 January 1974. She is a Hutu and a citizen of Rwanda. She entered the United Kingdom illegally on 2 August 2002, and sought asylum. She claimed a well-founded fear of persecution for a convention reason, namely political opinion, as the Rwandan authorities thought that she was a supporter of the Ubuyanja (PDR) party because of her father's support for the previous government. [2] On 3 August 2002, the petitioner completed a Screening Form (TN3/SEF Scr. May 02). With the assistance of an interpreter named Allen Mutoni, she provided a detailed witness statement. In that statement she described returning to Rwanda after the genocide in the 1990s, and suffering detention and ill-treatment which she attributed to the authorities' suspicion that she was a supporter of the PDR party. She described being raped and made pregnant by a prison guard, and then being released without explanation. She tried to set up business as a shop-keeper. Rwandan soldiers kept calling at her shop and asking her questions about the Ubuyanja party. [3] The petitioner described the final incident which caused her to flee Rwanda as follows:"16. On 10 June 2002 many men entered my house in the middle of the night. They entered through the living room and into my sister's room first. My sister was stabbed with a knife and killed. I could not see the men properly as it was dark but I managed to see one man and he was wearing an army uniform. I managed to escape via the back room with my children.
I spent the night in a trench near my house. The following morning I went to my friend's house. As I was still in my night-clothes they gave me something to wear. I was very scared and did not return to my own home. I went to Gitarama, as this is where I kept all the money that I made from my business. The morning of 13 June 2002 I got onto a bus to Uganda ..."
After travelling through various countries, the petitioner arrived in the United Kingdom on 2 August 2002.
[4] On 5 September 2002, the petitioner was interviewed. A record of the interview was made in a Statement of Evidence Form - an "SEF (Interview)" Form. The petitioner was represented by Tay Yaba Latif of the IAS. An interpreter, identified only as "CIU01070", was also present. Paragraph 18 of the section headed "Introductory Information" in the SEF (Interview) Form recorded the question:"Are you content to be interviewed in Kinyarwanda?"
to which an affirmative answer was given.
[5] In the course of the interview the petitioner was noted inter alia as saying, in Answer 4, that she had actually seen her sister being stabbed, and in Answer 46, that she had applied for asylum in Zimbabwe. [6] At the end of the interview, the petitioner's representative was recorded as commenting:"I am not satisfied with the conduct of the interview. The interviewing officer wanted the applicant to provide specific answers to poorly directed and unspecific questions."
"... In relation to the incident [in] June 2002 I was in my room with my three children and my sister was in her room. My husband had had three children with his previous wife who had died. They had come to stay with me after I had opened my shop in Commune Rugenge. They had been staying with my husband's family before that. They came to me because I had a shop and was in a better position to look after them than my husband's family. They were sharing a room together. It was late at night. I was trying to get to sleep when I heard a window being broken. I was frightened because a few days earlier there had been some people killed in the village. I got up and put my youngest daughter on my back using a towel. I woke up my other two daughters. I told them both to be very quiet. I then went to see what had happened. There was a wardrobe outside of my bedroom and we stood behind it so I could look to see if anyone was there. I saw my sister. She was lying on the floor towards the back of the house and wasn't moving. I could see that there were men at the door of the living room. They were talking to each other. The men had on uniforms. There was some light coming in from the outside light through a window and I could see that he was a soldier. I was very frightened. I took my children towards the back of the house. It was here that I saw there was a knife in my sister's neck. We stepped over my sister's body and left through the back door. I took the children to a trench at the back of the house where dirty water from the houses ran and we hid there."
"The [petitioner] ... gave oral evidence through an interpreter."
No further details about the interpreter, or the language or dialect used, are given.
[9] At the hearing, the petitioner referred to a diagram representing the lay-out of her home in order to assist with her description of events. (However that diagram cannot now be found). The petitioner told the adjudicator that the men who broke into her house had been looking for her, not her sister. [10] In his determination, the adjudicator made a number of findings adverse to the credibility of the petitioner, all as set out in paragraphs 29 and 30. The petitioner's appeal was refused for that reason. [11] The petitioner sought leave to appeal to the Immigration Appeal Tribunal (IAT). Her Grounds of Appeal were in the following terms:"It is submitted on behalf of the appellant that the inconsistencies noted in her evidence were as a result of the wrong interpreter being used at her appeal hearing. The appellant submits that the interpreter was of Asian African origin, speaking a different dialect from that of the appellant who speaks KINYARWANDA. The appellant maintains that the inconsistencies noted by the adjudicator regarding her evidence are not the answers which she gave at the hearing. She has been able to go through the determination and provide detailed correction of the evidence so noted by the adjudicator at para. 29. It is submitted that in the interests of justice to the appellant that the appeal be remitted for a fresh hearing before another adjudicator with the correct interpreter booked for same. The adjudicator has made serious adverse credibility findings against the appellant: para.29-30. Her appeal has been disposed of on the basis of his findings against the appellant on the issue of credibility. It is therefore essential that the hearing be remitted of new to allow the appellant's evidence to be truly tested. Given the importance of such cases and the potential consequences for the appellant should she be returned to Rwanda with her children, it is only fair and reasonable in the light of the foregoing to remit the hearing."
"I have carefully considered the grounds of appeal put forward. The grounds challenge the interpretation of the applicant's evidence and that the interpreter spoke with a different dialect. From a consideration of the determination it does appear that there were some possible issues relating to interpretation (paragraph 16 for example). However the applicant was represented and it does not appear that any substantive issue was taken with the interpretation or understanding of the applicant's evidence. I am satisfied that there appears to have been a fair and balanced hearing before the adjudicator and the determination is a sustainable one. The grounds are set out in very generalised terms and do not appear to indicate a basis for an appeal to this tribunal [that] has a realistic prospect of success."
"Declarator that the tribunal erred in law in refusing [the petitioner's] application for leave to appeal.
Declarator that the adjudicator failed to provide reasons for his determination. That failure to provide reasons was unreasonable and [the] adjudicator's determination should be reduced.
Declarator that the adjudicator wrongly rejected the petitioner's Article 2 and Article 3 claim.
Such further orders as to the court may seem just and reasonable in all the circumstances of the case."
"1. The tribunal having erred in law in refusing the petitioner's application for leave to appeal, the said decision of the tribunal should be reduced ..."
Submissions for the petitioner
[16] Counsel for the petitioner contended that the IAT erred in law in refusing to grant leave to appeal. Under reference to rule 18 of the Immigration and Asylum Appeals (Procedure) Rules 2003, and to Mutas Elabas, 2 July 2004 (Lord Reed: reported 2004 S.L.T. 1082 but only paragraph [29]), counsel submitted that leave to appeal should be granted where the appeal had a real prospect of success, or where there was some other compelling reason why the appeal should be heard. Counsel relied on the latter test, arguing that all that had to be demonstrated in a judicial review was that the appeal was arguable, not that there was a real prospect of success. Leave to appeal had to be granted where the tribunal identified an obvious arguable point even although not contained in the Grounds of Appeal: cf. R. v Secretary of State for the Home Department, ex parte Robinson [1998] QB 929, at paragraph [39]; Kolcak v Secretary of State for the Home Department, 21 May 2001, Stanley Burnton J. (CO-4012-00); Kaygun v Secretary of State for the Home Department, 29 May 1998, IAT, Appeal no.17213 ref.HX/66610/96, paragraphs 2, and 7 to 11; Macdonald, Immigration Law and Practice (5th ed.) paragraph 18.172. If it could be seen from a determination or decision that there had been errors or misunderstandings, there was obvious unfairness, and the petitioner should be allowed to appeal. [17] Such was the position in the present case. Counsel submitted that there were two clear examples of possible problems: paragraph 16 of the determination (the question whether the petitioner had, or had not, applied for asylum in Zimbabwe); and paragraph 13 (the question whether the petitioner had, or had not, actually witnessed the stabbing of her sister). The Vice President of the IAT had pointed out some issues relating to interpretation, and had referred to paragraph 16. As the adverse finding in respect of the petitioner's credibility was based upon alleged discrepancies in her evidence, the possibility that there might have been difficulties in interpretation became crucial. There was a risk that the petitioner's credibility was being determined on the basis of things which she had not said, things which had been mis-translated. [18] Counsel accepted that the petitioner had been represented at the hearing before the adjudicator, and that no objection or protest about interpretation had been made during or at the end of the hearing (in contrast with what occurred in Kaygun, cit. sup.) The IAT should nevertheless have recognised that there was a compelling reason for granting leave to appeal, in that there remained a lingering unease over what the petitioner had in fact said in evidence.
Submissions for the respondent
[19] Counsel for the respondent pointed out that the Grounds of Appeal placed before the IAT focused on alleged interpretation difficulties during the hearing before the adjudicator. The petition (erroneously) focused on alleged mis-reporting of what the appellant had said during the initial asylum interview. As could be seen from his decision, the Vice President of the IAT had carefully considered the Grounds of Appeal. He had adopted the approach advocated in Robinson, cit. sup. by considering, for example, the petitioner's complaint to the adjudicator, noted in paragraph 16 of the determination, that what she had said during the initial interview had not been "written as [she] said". In other words, the Vice President had gone beyond what was contained in the Grounds of Appeal, and had considered whether there might have been interpretation difficulties at the interview. [20] The Vice President had then taken into account the fact that the petitioner was represented throughout, and that no complaint of inadequate or inaccurate interpretation was made at either the interview or the hearing. He had dealt very fairly with the Grounds of Appeal. [21] Counsel submitted that, as the Grounds of Appeal did not challenge the accuracy of the interpretation during interview, the petitioner now had to explain why, during interview, she stated that she had actually seen her sister being stabbed (when she now said that she had not), and why, during interview, she stated that she had actually applied for asylum in Zimbabwe (when she now said that she had not applied because she had been discouraged in that she was told that she would be unsuccessful). [22] Counsel pointed out that nowhere in the Grounds of Appeal, the petition, or the submissions to the Court of Session was there notice of any particular errors in interpretation occurring during the hearing before the adjudicator. No suggestion had been made at the hearing itself that any difficulties in interpreting had been experienced. The Vice President's approach and his conclusion could not be criticised.
Reply for the petitioner
[23] Counsel for the petitioner again apologised for the confusion caused by the petition, and in particular for the inaccurate paraphrasing of the Grounds of Appeal in paragraph 11 of the petition. [24] Counsel wished to advance one further argument, relating to implausibility. The adjudicator had concluded that certain aspects of the petitioner's account were implausible. Reference was made to paragraphs 29(d), (e), and (f) and 30(c) in the determination. It was an error of law to state that alleged events were implausible without an adequate evidential basis: cf. Kasolo v Secretary of State for the Home Department, 1 April 1996, IAT Appeal No. 13190 ref.HX-70731-95, pages 6 and 7. The adjudicator should have borne in mind that the context of events was Rwanda, a country which had experienced major genocide only a few years previously. The adjudicator had accordingly erred when he concluded that certain events were implausible without explaining why he did so. The adjudicator's erroneous approach added to the compelling reason why the petitioner's appeal should be heard. Counsel invited the court to sustain the petitioner's first plea-in-law, and to reduce the IAT's decision to refuse leave to appeal. Counsel did not insist upon the second and third pleas-in-law.
Final reply for the respondent
[25] Counsel reiterated that the Grounds of Appeal put before the IAT focused on interpreting at the hearing before the adjudicator. The Vice President had not, in his decision, suggested or recognised that there had been any inadequacy in interpreting at that hearing. The petitioner had to explain the discrepancies referred to in paragraph [21] above. She had not done so. With those problems unresolved, the Vice President was entitled to reach his conclusion. [26] Counsel referred to Alfred Anjalans, Lord Brodie, 19 August 2004 (unreported), at paragraphs [9] to [12]; Singh v Secretary of State for the Home Department, 1998 S.L.T. 1370; Mutas Elabas, cit. sup.; Kasolo, cit. sup. Matters had to be examined from the perspective of the Vice President of the IAT at the time when he was examining the application for leave to appeal. Applying Robinson, any point not specifically raised in the Grounds of Appeal had to be obvious and with strong prospects of success. The petitioner failed to satisfy that test. [27] In relation to the late argument about implausibility, no such argument had been included in the Grounds of Appeal put before the IAT. Under reference to Robinson and Mutas Elabas, cit. sup.; and Wray v IAT [2003] EWHC 1280 Admin., counsel submitted that if something was not argued before the IAT, the default position was that it could not be founded on in a judicial review to the Court of Session. The supervisory jurisdiction of the Court of Session should be used sparingly. One required a real justification for presenting an argument to the Court of Session when that argument had not been put before the IAT. The guidance given in Robinson, cit. sup. did not mean that a tribunal was obliged to scour through the entire case, searching for points which were favourable to the petitioner. [28] In any event, the petitioner would have to satisfy the court that any Vice President in the present case would have noted the findings of implausibility and concluded that they amounted to an error of law in that they were unreasonable or were unsupported by adequate reasons. The court could not be so satisfied. There was no rule that an adjudicator could not find something implausible. The adjudicator was not obliged to list, in a mechanical and exhaustive fashion, what evidence was believed and what evidence was disbelieved: Asif v Secretary of State for the Home Department, 1999 S.L.T. 890, Lord Penrose at page 894G-H, quoted with approval in Daljit Singh v Secretary of State for the Home Department, 2000 S.C. 219, at pages 222-223. The adjudicator's reasons were clearly adequate. The Vice President was entitled to take the view that the adjudicator's findings of implausibility were neither irrational nor unreasonable nor inadequately explained. The petitioner's reference to "other compelling reason" should not be permitted to blur the two limbs of the test in Robinson, cit. sup. The petitioner had to demonstrate that the point was an obvious one, with real prospects of success. [29] Counsel invited the court to sustain the respondent's first and second pleas-in-law and to dismiss the action. He also invited the court to sustain the respondent's third and fourth pleas-in-law, but accepted that the fifth and sixth pleas-in-law were possibly unnecessary. If, contrary to counsel's submissions, the court were to decide in favour of the petitioner, it was not necessary to remit the case back to the IAT. As the IAT's decision would have been reduced, the matter would automatically revert to the IAT to be considered afresh.Opinion
Implausibility
[30] An argument based on the adjudicator's findings of implausibility was presented at a very late stage. Not only was no such argument included in the Grounds of Appeal, but the argument was not advanced when counsel for the petitioner first presented his submissions in the Court of Session. It was only in reply to the respondent's submissions that any criticism was made of the adjudicator's findings relating to implausibility. [31] In my view that argument is without merit, for two reasons. First, the argument was not contained in the Grounds of Appeal. Accordingly when the Vice President made his decision, his attention had not been drawn to any criticism of the adjudicator's findings of implausibility. Secondly, adopting the approach set out in Robinson, cit. sup., such criticism could not in my view be said to be a readily discernible and obvious point which the IAT ought to have considered although not mentioned in the Grounds of Appeal.Interpreter's services
[32] The Grounds of Appeal state that the petitioner "has been able to go through the determination and provide detailed correction of the evidence". That assertion is borne out to some extent by the copy determination supplied with the court papers. That copy determination contains manuscript notes made in the margin, suggestive of a consultation during which it became clear to the petitioner's advisers that the petitioner's position was that she had been misinterpreted. [33] When considering the application for leave to appeal, the IAT noted that "there were some possible issues relating to interpretation (paragraph 16 for example)." That was a reference to a complaint by the petitioner of a misinterpretation or inaccurate recording of answers which she gave during the original interview - a complaint not in itself a ground of appeal, but nevertheless a factor which the Vice President of the IAT very properly took into account: cf. Robinson, cit. sup. [34] Having given careful consideration to this case, I find it difficult to exclude the possibility that there may have been difficulties or errors in interpretation at various stages of the petitioner's application for asylum. It may be that the interpreter at the hearing before the adjudicator was "of Asian African origin, speaking a different dialect from that of the [petitioner]", as set out in the Grounds of Appeal. The determination itself contains several references to what may have been difficulties in interpretation: see, for example, paragraphs 11, 13, 16, 17, and 30(c) of the determination. Difficulties or errors in interpretation may have resulted in misunderstandings or altered nuances with significant consequences in relation to views about the petitioner's credibility. [35] As noted above, the IAT expressly recorded a doubt or concern about possible issues relating to interpretation. In my view, such a doubt or concern constituted a compelling reason why the petitioner's appeal should be heard: Rule 18 of the Immigration and Asylum Appeals (Procedure) Rules 2003. However having expressed that concern, the Vice President of the IAT found comfort in the fact that the petitioner had been represented at the hearing, and that no substantive issue had been taken at the hearing with the interpretation or understanding of the petitioner's evidence. [36] Bearing in mind the importance to the petitioner of her application for asylum, and the possible serious consequences in the event of any misunderstanding or failure in communication, I consider that it was unreasonable in the Wednesbury sense for the Vice President to rely upon those factors as providing an adequate response to his concern about interpretation. The petitioner's representative may have had little or no understanding of Kinyarwanda. He may not have been able to identify any alleged misinterpretation until a later date (for example, after consultation with the petitioner, possibly assisted by someone who could speak both English and Kinyarwanda). While the petitioner's representative may (at best) have noticed some differences between what he had understood the petitioner's position to be, and the version of events given in English by the interpreter, in the absence of someone able to speak both Kinyarwanda and English to assist him, it might have been difficult for him to know whether a misinterpretation had occurred, or whether his client was simply giving a different version of events. For that reason alone, it might be difficult for the representative to make an immediate complaint about interpreting services. As for the petitioner, if her grasp of English was limited, she might not realise that inappropriate versions of what she had said were being put forward on her behalf. [37] Similar concerns were expressed by the IAT in circumstances which arose in Kaygun, cit. sup., as follows:"... It would have been better, of course, for the difficulties to be drawn to the adjudicator's attention during the course of the appeal. Sometimes that is done and it is not unknown for someone present in court, who speaks the appellant's language, to notice some difficulty and then to draw it to the attention of either the appellant's representatives or the presenting officer. It is not easy for an adjudicator who has no command of the language to pick up problems of this sort, nor indeed is there any reason why an appellant who has no command of English, or only a limited command, should himself be able to pick up problems of interpretation. A witness who requires the services of an interpreter ipso facto will be unlikely to appreciate the way in which his answers are being translated, and as a consequence will not be in a position to draw the problem to the adjudicator's attention. Similarly, unless the representative is fluent in Turkish (and there is no suggestion of that in this case), then the representative will often not be aware that there is a difficulty ...
In what [the presenting officer] rightly describes ... as unusual circumstances, we are left with a sense of unease and we think the right course must be to remit this matter for another hearing ..."