Scottish Court of Session Decisions

OUTER HOUSE, COURT OF SESSION [2012] CSOH 82
P668/11	OPINION OF LORD WOOLMAN in the Petition for Judicial Review by DB Petitioner; ­­­­­­­­­­­­­­­­­________________

Pursuer: Caskie; Drummond Miller

Defender: McIlvride; Office of the Advocate General

15 May 2012

Introduction

[1] The Petitioner is a citizen of Syria. To protect his anonymity, I shall refer to him as DB. He entered the United Kingdom on 21 September 2010 and claimed asylum. On 21 October 2010, the Secretary of State refused his application. On 27 January 2011, the First Tier Tribunal of the Immigration and Asylum Chamber dismissed his appeal against that decision. Leave to appeal was refused. DB then applied to the Upper Tribunal for permission to appeal. On 20 May 2011, it refused his application. It is that decision which DB now seeks to review.

DB's Account

[2] DB's version of events is as follows. He is a member of the Kurdish Democratic Party. In March 2009 he was arrested by intelligent agents in Syria. At the time, he was filming a Newroz (Kurdish New Year) event. For about eight months, he was detained and tortured. He was released on 1 December 2009. Subsequently he made his way to France, where he remained for about nine months, but did not make a claim for asylum. He made a number of unsuccessful attempts to enter the United Kingdom. He finally managed to enter this country on 21 September 2010, by concealing himself on the back of a truck. He contends that if he is returned to Syria, he faces a real risk of persecution.

The Decision at the First Tier Tribunal

[3] The Secretary of State elected not to be represented at the First Tier Tribunal. The Immigration Judge who heard the case made a number of key findings. First, he held that DB had failed to show that he was a member of the Kurdish Democratic Party. Secondly, he held that DB "is not credible and I am satisfied he will say anything to enhance his position." Thirdly, he held that DB had failed to prove that he faced a real risk of suffering serious harm, if he was returned to Syria.

The Decision at the Upper Tribunal

[4] The Senior Immigration Judge who considered the application for permission to appeal issued a short note of reasons for his refusal. He stated that the proposed grounds of appeal "are a disagreement with the findings of fact and credibility and an attempt to re-argue the claim. They do not identify any arguable error of law."

The Legal Framework

[5] A decision of the Upper Tribunal refusing leave to appeal from a decision of the First-tier Tribunal is an "excluded decision": s. 13(8)(c) of the Tribunals, Courts and Enforcement Act 2007. Accordingly, the only remedy now open to DB is to bring a petition for judicial review in this court.

[6] Before the Court of Session can exercise its supervisory jurisdiction in a case of this type, it must be satisfied that the case gives rise either to "some important point of principle or practice", or that there is "some other compelling reason": Eba v Advocate General for Scotland [2011] UKSC 29, 2011 SLT 768 at para. 48 per Lord Hope of Craighead DPSC.

[7] Lord Hope continued:

"Underlying the first of these concepts is the idea that the issue would require to be one of general importance, not one confined to the petitioner's own facts and circumstances. The second would include circumstances where it was clear that the decision was perverse or plainly wrong or where, due to some procedural irregularity, the petitioner had not had a fair hearing at all." (ibid)

[8] On the same day that the decision in Eba was issued, the Supreme Court issued another decision which provides important guidance in this area: R (Cart) v Upper Tribunal [2011] UKSC 28, [2011] 3 WLR 107. The judgments reinforce the view that the proper scope for judicial review in this area is very narrow. Delivering the leading opinion, Baroness Hale of Richmond JSC stated:

"the new and in many ways enhanced tribunal structure deserves a more restrained approach to judicial review than has previously been the case, while ensuring that important errors can still be corrected." (para. 57)

[9] Lord Phillips of Worth Maltravers PSC indicated that his "initial inclination was to treat the new two tier tribunal system as wholly self-sufficient." (para. 91) However, he had been persuaded of:

"the need for some overall judicial supervision of the decisions of the Upper Tribunal, particularly in relation to refusals of permission to appeal to it, in order to guard against the risk that errors of law of real significance slip through the system." (para. 94)

[10] Lord Brown noted that "the very fact that [the applicant] was refused leave to appeal to the Upper Tribunal (by both tribunals) tends to indicate the unlikelihood of there having been a genuinely arguable error of law in the first place." (para. 100) In Lord Clarke's opinion: "Further scrutiny of a decision by the Upper Tribunal refusing permission to appeal is only needed in case something has gone seriously wrong." (para. 103)

[11] Lord Dyson was to similar effect:

"the second limb of the test ('some other compelling reason') would enable the court to examine an arguable error of law in a decision of the FTT which may not raise an important point of principle or practice, but which cries out for consideration by the court if the UT refuses to do so. Care should be exercised in giving examples of what might be 'some other compelling reason', because it will depend on the particular circumstances of the case. But they might include (i) a case where it is strongly arguable that the individual has suffered what Laws LJ referred to at para 99 as 'a wholly exceptional collapse of fair procedure' or (ii) a case where it is strongly arguable that there has been an error of law which has caused truly drastic consequences." (para. 131)

[12] Further observations along similar lines are to be found in the decision of the Court of Appeal in PR (Sri Lanka) v SSHD [2011] EWCA Civ 988. In my view, the decision KP and MRK v Secretary of State for the Home Department [2012] CSIH 38 does not impinge upon the issues in this case. Accordingly, it is clear that the threshold that any petitioner must reach is a high one.

The Grounds of Appeal

[13] The present case does not give rise to an important point of principle or practice. DB must therefore establish that his case fall within the second branch. Do the five grounds of appeal disclose an error of law? Are there compelling reasons for reviewing the Upper Tribunal's decision? In other words, can it be said that it was perverse or plainly wrong?

[14] In his determination, the Immigration Judge considered all the evidence: see para. 28. He held that DB had failed to prove that he was a member of the Kurdish Democratic Party. In part, that was because he had "doubts about the authenticity" of the documents upon which DB relied. He subjected them to close scrutiny.

[15] Three of the grounds of appeal concern these documents. DB claims they are (a) his identity document; (b) a letter from the Kurdish Democratic Party vouching his membership; and (c) a photograph taken of him (DB) at a large Newroz gathering wearing a name badge.

[16] The other two grounds of appeal deal respectively with (i) repeated lies told by DB to immigration authorities and (ii) the existence of a prison where he claims to have been held.

[17] In my view, on their face all these grounds appear to raise questions of fact. It is not immediately obvious how the Immigration Judge can be said to have erred in law in determining the weight and significance to attach to these items of evidence. I also observe that it is artificial to consider them in isolation. What is important is to consider the whole picture. That is the approach correctly taken by the Immigration Judge.

Identity Card

[18] The Immigration Judge commented on DB's purported identity card as follows:

"[it] contained a photograph of the Appellant and stated that he was [DB] born 8^th February 1979. The identity card was in a sealed plastic cover, but the cover had an opening close to the photograph of the Appellant. The Appellant's photograph was simply stapled to the document, and it was quite possible the photograph could have been attached at any time. For the reasons detailed later, the Appellant's identity was, very much in dispute. That being the case I would have expected the Appellant if producing a document which he claimed confirmed his identity to have produced some objective or expert evidence to satisfy me that the document produced was indeed genuine. I am not satisfied the Appellant has proved that he is [DB], and I am not satisfied the identity card produced genuinely confirms the Appellant's identity." (para. 32)

[19] The challenge to that finding is set out in DB's written argument:

"... if the aperture was small (as it was) it would not have prevented a photograph being inserted but would have prevented a stapler being inserted to staple the photograph in place. If the aperture was sufficiently small to prevent even small stapler being inserted and the staple was not through the plastic cover then the possibility of the card being forged ... are significantly reduced. In carrying out his examination of the card the Immigration Judge left out of account material matters and had regard to immaterial matters."

[20] In my view, this is a straightforward question of fact. Having examined the document, the Immigration Judge doubted its authenticity for the reasons he gives. As the trier of fact, that fell squarely within his jurisdiction. No question of law arises. Accordingly, DB's challenge on this point fails.

Letter from the Kurdish Democratic Party

[21] DB founded on a letter purportedly from the Kurdish Democratic Party in Syria. It was said to be of central importance. It demonstrated that DB was a member of that group and therefore in need of protection. The Immigration Judge stated that: "It is difficult to tell if the letter is an original, but it is certainly on poor quality notepaper." (para. 33)

[22] Mr Caskie referred to another case involving the authenticity of a letter: Singh v Secretary of State for the Home Department 1998 SLT 1370. In that case, the judge at first instance (then named a special adjudicator) had "grave doubts about the letter's reliability". That was because the word "counsel" had been misspelled and the letter contained poor grammar. Lord Macfadyen held that the special adjudicator had failed to provide sufficiently clear and intelligible reasons and set aside the decision.

[23] Mr Caskie submitted that I should adopt the same approach in the present case. There had been no evidence about what quality of notepaper was likely to be used. No inference could properly be drawn. The Immigration Judge had proceeded upon the basis of unjustified speculation. His reasons for dismissing the letter are inadequate.

[24] In my view, this challenge is misconceived. The Immigration Judge was not bound to accept the letter as authentic. That would have been an abdication of his task. Instead he properly considered all the evidence presented to him. He concluded that DB had failed to establish that he was a member of the Kurdish Democratic Party. That was a question of fact. It was exclusively a matter within his jurisdiction.

Photograph

[25] DB produced a photograph showing him in a crowd. He claimed that it was a Newroz celebration and that he was wearing a name badge to confirm that he was a member of the Kurdish Democratic Party. The Immigration Judge was not persuaded. He stated that DB "has not produced any credible evidence to assist his claim.... The photographic evidence does not assist him other than to show that he was at a mass gathering, which may have been a Newroz celebration. In fact the photograph shows that he was at a mass gathering, which may have been a Newroz celebration, wearing a name badge and carrying a camera." (para. 43)

[26] Like the identity document and the letter, in my view this issue lay within the province of the Immigration Judge to determine matters of fact.

DB's Lies

[27] On the occasions when DB crossed the channel from France to the United Kingdom, he repeatedly gave false names and dates of birth when he detained and fingerprinted. When he eventually arrived in the United Kingdom and made a claim for asylum, however, he denied to the immigration authorities that he had been detained or fingerprinted. The Immigration Judge held that these various lies to the immigration authorities were material. He did not accept DB's explanation of why he did not claim asylum in France.

[28] Mr Caskie submitted that not all lies told by an asylum seeker are of the same weight: MA (Somalia) v SSHD [2010] UKSC 49 [2011] 2 ALL ER 65 at para. 31. Many refugees arrive in the United Kingdom by using some means of deception. DB had lied to avoid being returned to France. DB must have known that his lies were against his interest as they would be discovered. Mr Caskie accepted that they might undermine DB's credibility. But he submitted that the central issue was whether DB would face persecution if he was returned to Syria.

[29] In my view, this was a matter of weight. The Immigration Judge had to determine what significance to accord to the lies. It cannot be characterised as a question of law.

Prison

[30] DB claimed to have been held in prison in Qamshili Syria, which he said was known as the "black prison". The Immigration Judge doubted its existence (para. 44). He may well have been influenced by the fact that the Home Office could find no evidence of its existence.

[31] In the course of preparing the appeal, Mr Caskie viewed Amnesty International's website. It contains a report dated 7 October 2009 that:

"... a Syrian Kurdish man held incommunicado after his forcible return from Germany, is now known to be held in Qamishli prison in north-eastern Syria, charged with spreading "false" news.

[32] In Arabic the correct spelling is 'Qamishli'. In Sorani the correct spelling is believed is to be 'Kamishli' from it. The report states the town where the prison is located is "clearly a hot bed of anti-regime Kurdish activity".

[33] Mr Caskie argued that the Immigration Judge should have indicated his concern as to whether there was background evidence about whether there was in fact a prison where DB claimed he was held. By failing to make further enquiry, he had undermined the fairness of the hearing.

[34] However, there is "no general obligation on the tribunal to give notice to the parties during the hearing of all the matters on which it may rely in reaching its decision": HA v SSHD (Number 2) 2010 SC 457, at para. [10]. Accordingly, the Immigration Judge had no duty to raise the matter, but in fact he did so: (see paras. 22 and 44 of the determination). There was therefore no procedural unfairness, the onus being on DB to establish his case.

Conclusion

[35] In my view, DB has failed to identify any 'error in law'. The decision cannot be said to be plainly wrong or perverse. I shall therefore sustain the second and third pleas-in-law for the respondent, refuse the orders sought and dismiss the petition.