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OUTER HOUSE, COURT OF SESSION
[2006] CSOH 109
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OPINION OF LORD DAWSON
in the Petition of
ALI HOROS
Petitioner;
for
Judicial Review of
a decision of the Immigration Appeal Tribunal refusing to grant leave to
appeal from a decision of an Adjudicator
ญญญญญญญญญญญญญญญญญ________________
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Petitioner: Melvin-Farr; Wilson Terris
Respondent: Drummond;
H F Macdiarmid, Solicitor to the Advocate General
14 July 2006
[1] The
petitioner in this case was born on 20
December 1982. He resided
latterly at Flat 27/2, 63 Petershill Drive,
Glasgow.
He entered the UK
illegally in March 2001. He applied
for asylum. That application was
refused. He appealed against that
decision to the Adjudicator who also refused the application. He further appealed to the Immigration Appeal
Tribunal. The Tribunal refused him leave
to appeal. He now seeks decree of
declarator that the Tribunal erred in law in refusing leave to appeal. These decision and the reasons therefor were
set out in Nos. 6/1 and 7/7 of process.
[2] Counsel
for the petitioner submitted that such leave ought to have been granted as the
Adjudicator's findings in fact were inconsistent and contradictory. The petitioner had no idea why his claim
failed. Accordingly, the Adjudicator's
determination was perverse and irrational and unreasonable. Counsel referred me to the Immigration and
Asylum (Procedure) Rules 2000, Rules 18(1) and (7). He also referred to the case of Robinson 1998 Q.B.928 in which Woolf,
M.R., as he then was, at pages 943-945 indicated that leave should be
granted where the ground was readily discernible, obvious or had a strong
prospect of success. In this case, it
was said, there was an obvious point which the Tribunal should have noticed but
missed. Further, the Tribunal should
look beyond the grounds of appeal to ascertain for itself whether there was any
obvious error of fact or law by the Adjudicator. Reference was made to the case of Abdul Aziz Kolcak 2001 Imm.App.Report
666 where the above rule was said to be adumbrated. In that case it was also held by Stanley
Brunton J that to grant leave to appeal, the Tribunal had to be satisfied,
apart from anything else, that taking all the evidence into account there was a
reasonable prospect of an appeal succeeding.
Counsel also referred to Hathaway: The Law of Refugee Status at
para.3.2.2 (page 83) regarding the role of the claimant's testimony and
suggested that when considering the Adjudicator's determination, the Tribunal
should bear in mind that the applicant's credibility is to be accepted in the
light of contrary evidence. Therefore,
the Adjudicator should have given the applicant a chance to comment on any
perceived inconsistencies. Further it
was "obvious" on reading his determination that this was so. (Singh
v Secretary of State 2000 S.C.219).
[3] Counsel
then referred to the Adjudicator's decision (No.6/1 of process). He suggested that the law was set out in
para.3 thereof and commented that the Adjudicator did not set out what
"standard of assessment" he intended to use.
Counsel suggested that in terms of the case of Singh 1998 S.L.T.1370 the Adjudicator had certain duties. The Adjudicator in this case failed in that regard. His decision was therefore flawed and that
was "obvious". At para.14 the
Adjudicator paraphrased his reasons in this way:-
"The appellant
has been largely consistent. The
background material shows that Kurds have suffered many abuses in Turkey.
These are matters in the appellant's
favour. They are however not
determinative. There are difficulties
with the appellant's account".
According to counsel the
Adjudicator did not say he was inconsistent at this or any other point. Counsel also appeared to criticise the
Adjudicator's failure to ask, in relation to paras.15 and 16, why there was a
difference in the applicant's given reason for his release from police
detention in Turkey. The question was simple "Did he or did he not
agree to inform?". This failure, it is
said, is compounded by para.17. However,
in para.18, this applicant said that his release was nothing to do with
informing; it was because of his age. Reference was then made to paras.21-23. Counsel made little or no reference to the
decision of the Tribunal refusing leave to appeal.
[4] Counsel
for the respondent, the Secretary of State for the Home Department, invited me
to repel the plea-in-law for the petitioner and sustain her third plea. As a matter of interest, she pointed out to
me that none of the grounds of appeal appeared in the petition. The appeal grounds were quite different. She submitted that the Tribunal were not
bound to consider any other ground, subject to the observations in Robinson that they ought to do so if
there was an obvious point which had a strong likelihood of success. Indeed, Rule 18(6) provided that the
Tribunal were not required to consider other grounds. Although the Rules postdated Robinson, it still stood. That meant that there were only limited
reasons for going outside the grounds of appeal; in particular one must "not search for new
points"; they must be obvious
(Lord Reed in Mutas Elabas -
unreported July 2004, where at paras.21-23 his Lordship helpfully reviews the
relevant authorities). In this context
counsel suggested that the test of "obvious" was is anything crying out for an
answer here from a reading of the determination. She submitted that nothing said in the
petition or at the Bar met that test.
The question raised was of differing accounts which were not
investigated by the Adjudicator. That
question was neither in the grounds of appeal or in the petition. Nor was it to be found in the petitioner's
first Minute of Amendment. Counsel asked
"if this point is so 'obvious' why did it not become obvious until the day of
the hearing". She answered herself by
saying "because it is not obvious". The
Minute of Proceedings was not produced and there was no evidence of what
questions were put to the applicant.
Further she had no notice of this point and no information to support
the bald assertion that this apparent discrepancy was not put to the applicant.
[5] Counsel
also pointed out that the petitioner was put on notice by the Secretary of
State that his credibility was an issue. In a letter dated 26 May 2001 the Secretary of State gave the
petitioner extensive written reasons for the refusal of his application. Towards the end of para.9 the letter reads:-
"In view of your
claims that you were released without charge following your alleged detention,
despite the security forces accusing you of being involved in terrorism, the
Secretary of States does not find it credible that you were detained as
claimed. You also stated that the police
then came after you and put your house under surveillance. The Secretary of State does not consider that
a well trained police force would let an alleged terrorist go free only to
pursue them (sic) again, especially
as you had not agreed to inform for them.
This leads the Secretary of State to doubt that you were detained at
all".
According to counsel, that was a
clear indication that credibility on this very point was at issue right from
the start. Again, at para.12 the letter
reads:
"Therefore, in
view of the lack of credibility of your overall individual account the
Secretary of State is not prepared to believe that you are genuine
conscientious objector".
Miss Drummond, counsel for the
respondent, submitted that there was no evidence to suggest that the point made
by the petitioner was not put by the Adjudicator. The petitioner was in any event put on notice
by the refusal letter. Further, there
was no obligation on the Adjudicator to put the specific question to explain
any differences. Reference was made to
the case of Hassan Najeeb Hassan v IAT 2001 Imm.A.R.83 (C.A.) in which the
applicant had also been refused asylum by the Secretary of State: his appeal had been dismissed by a special
adjudicator: he sought judicial review
of the refusal of the Tribunal to grant him leave to appeal. The Secretary of State had not found the
applicant credible: his credibility was
a central issue in his appeal: the
special Adjudicator also concluded he was not credible. Counsel submitted that the Adjudicator had
been unfair to conclude that the applicant's evidence was vague in material
respects without putting him on notice and giving him an opportunity to
elaborate on it. It was held that the
allegations were ill-founded and represented a serious misunderstanding of the
function of the special Adjudicator and the duty that lies upon him. He had no obligation, having heard the
evidence and found it unsatisfactory to put the applicant on notice and allow
him to start again. (cf.
Buxton L.J. at para.18). Miss
Drummond suggested that that case was on all fours with the present and
commended the reasoning to me (cf. paras.11-19). All in all, it was submitted that the issues
were clear in this case.
[6] Miss
Drummond sought to distinguish the case of Singh
(supra) on the basis that the facts and the actions of the Adjudicator were
different. Instead she chose to refer on
the general question of credibility to Kulwinder
Singh 2000 S.C.288 (esp. Lord Reed
at 193F-294A) and Asif 2002 S.C.182
(esp. Lord Coulsfield at 188H).
[7] Counsel
then turned to the Adjudicator's determination (No.6/1 of process). She submitted that reading from para.11
onwards as a whole there was no illogicality in the conclusion expressed in
para.23, which is as follows:-
"When I come to
consider the evidence in the round the cumulative effect of these difficulties
with the appellant's account is such that I reach the conclusion that the
appellant has been untruthful and that no credence at all can be attached to
his account of the events which led to his leaving Turkey. It follows therefore no credence at all can
be attached to his claim that he was of interest to the police authorities in
Turkey when he left there and is of interest to them now".
It was suggested that the
Adjudicator's first problem lay in a difficulty as to why the petitioner was
released by the police. At the original
stage it was not suggested that he had agreed to act as an informer. This was a change of story to get round the
decision of the Secretary of State to refuse asylum. The Adjudicator dealt fairly and carefully
with this. Indeed he said (para.17) that
it was "dangerous to make much of it".
At para.18 he had said he was released because of his age. There was no mention of having agreed to be
an informer and one would have expected him to say that. This discrepancy was clearly crucial as it was
the only reason given for persecution (paras.20 & 21). There were further difficulties over
credibility which led the Adjudicator to the proper conclusion reached at
para.23. Miss Drummond submitted that he
was entitled to reach that conclusion and any suggestion that no reasonable
Adjudicator could have reached that view had not been made out.
[8] In
the whole matter, Miss Drummond submitted that in line with authorities in both
Scotland and England
there was no merit in the petition which should be refused.
[9] It
seems that both counsel were agreed that the test to be applied by the Tribunal
in cases such as this was that leave to appeal should only be granted only
where the ground was readily discernible, obvious or had a strong prospect of
success (Woolf M.R. in Robinson). In my opinion the ground of appeal adumbrated
in this case falls into none of these categories. Indeed, as counsel for the respondent said
the ground proposed at the Bar was not even obvious enough to have been noticed
when the original grounds of appeal were suggested in the Petition. It did not seem to have become "obvious"
until the day of the hearing, even although the question of the applicant's
credibility was raised at an early stage in the reasons for refusal of the
application in May 2001 (Hassan Najieb
Hassan v IAT op. cit.). In any event, I
agree with Miss Drummond that there was no illogicality in the
Adjudicator's determination. In the
whole matter I am of the view for the above reasons that this application is
without merit. I therefore repel the
first plea-in-law for the petitioner, sustain the third plea-in-law for the
respondent and refuse the application.
