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Scottish Court of Session Decisions |
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You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Singh v Secretary Of State For The Home Department [2000] ScotCS 169 (20 June 2000) URL: http://www.bailii.org/scot/cases/ScotCS/2000/169.html Cite as: [2000] ScotCS 169 |
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OUTER HOUSE, COURT OF SESSION |
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P53/14A/99
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OPINION OF LORD REED in Petition of AMRIK SINGH Petitioner; against THE SECRETARY OF STATE FOR THE HOME DEPARTMENT Respondent:
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Petitioner: Lazarowicz; Lindsays, W.S. (for Gray & Co)
Respondent: Murphy; H S MacDiarmid, Office to the Advocate General
20 June 2000
[1] The petitioner was born on 22 June 1970 and is of Indian Nationality. He arrived in the United Kingdom clandestinely. On 9 August 1995 the Immigration Advisory Service applied for asylum on his behalf. On 4 October 1995 he was interviewed by an immigration officer, with the assistance of an interpreter. By letter dated 27 May 1998 his application for asylum was refused by the Secretary of State. On 5 August 1998 the petitioner was served with a notice of removal. The petitioner then appealed against the refusal of asylum to a Special Adjudicator. The appeal was heard by the Chief Adjudicator on 2 December 1998. The petitioner was represented at the hearing by a solicitor. By a determination dated 15 January 1999 the Chief Adjudicator refused the appeal. There was no further right of appeal, the claim for asylum having been certified under paragraph 5(2) of Schedule 2 to the Asylum and Immigration Appeals Act 1993 (as amended). In the present proceedings the petitioner seeks the reduction of the determination of the Chief Adjudicator.
[2] In order to qualify for asylum under the Immigration Rules (HC 251, 1990), the applicant must have the status of a refugee under Article 1A(2) of the Geneva Convention relating to the status of refugees (Geneva, 28 July 1951; Cmmd. 9171), as amended by the 1967 Protocol (New York, 31 January 1967; Cmmd. 3906). The first matter to be established under the Article is that the claimant is outside the country of his nationality owing to a well-founded fear of persecution.
[3] When the petitioner was interviewed by the immigration officer on 4 October 1995, he produced a number of documents relating to that matter. They included two documents which bore to be warrants for his arrest, dated 2 September 1994 and 6 January 1995. Each of these warrants bore to have been issued by the Judicial Magistrate First Class, Phillaur.
[4] The Secretary of State's letter refusing the application for asylum stated inter alia:
"3. The Secretary of State has considered the documents, including two arrest warrants, you have submitted in support of your claim. His general experience, as a result of considering very many applications for asylum, is that many of the letters and documents submitted to him in support of those applications are of limited reliability. For example, advocates' letters in some instances cite incorrect or inappropriate legislation; in other cases warrants for arrest have been provided which on close examination have proved to be false. The Secretary of State is aware of instances where persons applying for asylum in the United Kingdom have commissioned relatives in India to obtain letters or documents. The Secretary of State is also aware of fake newspaper articles and police wanted notices being produced.
4. In your case the Secretary of State noted that the two arrest warrants you submitted were poor quality photocopies which caused him to doubt that they were genuine. He therefore caused enquires to be made, through the British High Commission in New Delhi, about their authenticity. The British High Commission officials accordingly visited the Magistrates Office in Phillaur, who allegedly issued the arrest warrants. During their visit, the Clerk to the First Class Magistrate confirmed with them that neither of the warrants had been issued by a magistrate in Phillaur. The Secretary of State was therefore satisfied that the arrest warrants were false and did not demonstrate that you had a well-founded fear of persecution in India."
[5] At the hearing before the Chief Adjudicator, the petitioner gave evidence. In relation to the documents, he said that he had handed in those papers. He did not bring them from India. His father posted them. The petitioner did not know how his father got them. The documents were real as far as the petitioner was aware. The arrest warrants were genuine as far as he was concerned.
[6] The Chief Adjudicator also had before him a telex lodged on behalf of the respondent. The telex, which was dated 1 May 1997, was addressed to the Immigration and Nationality Directorate of the Home Office, and bore to be from "New Delhi". It was in the following terms:
"SUBJECT: AMRIK SINGH B 22.6.70 IDA
ATTENTION OF TEAM 6/MODULE 2 ASYLUM DIRECTORATE
YOUR REF: S844617
OUR REF: ENQ.F66/96
FURTHER TO YOUR LETTER 15.10.96 I AM NOW ABLE TO ADVISE YOU THAT A FIELD TRIP HAS BEEN MADE TO THE MAGISTRATE'S OFFICE IN PHILLAUR
THE COPY WARRANTS WERE SHOWN TO BE MR GULSHAN GOEL, CLERK TO THE FIRST CLASS MAGISTRATE, AND HE CONFIRMED THAT NEITHER OF THE WARRANTS HAD BEEN ISSUED BY A MAGISTRATE IN PHILLAUR. UNFORTUNATELY MR GOEL DID NOT HAVE THE AUTHORITY TO PROVIDE A WRITTEN STATEMENT.
TRUST THAT THIS INFO IS USEFUL. THE DELAY IS REGRETTED.
GORE-BOOTH."
[7] The Chief Adjudicator also had before him an Immigration and Nationality Directorate Country Assessment on India dated April 1997. The document stated inter alia:
"This assessment has been produced by the Asylum Directorate of the Immigration and Nationality Directorate of the Home Office from information from the Foreign & Commonwealth Office and a range of independent external sources.
....
14. Arrest warrants
Many applicants for asylum claim that the police have issued warrants for their arrest and this can form a crucial part of the case. It is important that the authenticity of arrest warrants is investigated and this can be done through the British High Commission in New Delhi. Further details about arrest warrants are contained in Annex D. On investigation documents frequently prove to be forgeries."
In his determination, the Chief Adjudicator stated:
"It has not been established to a reasonable degree of likelihood or at all that any of the documents (E1 to E6) [i.e. those produced by the petitioner at his interview] are genuine. Document A [i.e. the telex] put in on 2 December states:
'The copy warrants were shown to Mr Gulshan Goel, Clerk to the First Class Magistrate, and he confirmed that neither of the warrants had been issued by a Magistrate in Phillaur. Unfortunately Mr Goel did not have the authority to provide a written statement.'
That document from the British High Commission, consequent to their enquiries, satisfies me that those warrants (Documents E3 and E6) are not genuine documents."
After dealing with other matters, the Chief Adjudicator continued:
"In all these circumstances, and taking into account what I find to be false documentations and evidence which is not credible, it has not been established to a reasonable degree of likelihood that if the appellant returned to India he would have a well-founded fear of persecution.
In arriving at this conclusion I have taken into account the submissions of Mr Caskie who appeared on behalf of the appellant, including in particular his submission that Document A [the telex] was not enough and was insufficient evidence to prove the warrants invalid. I disagree."
The basis on which Judicial Review is sought is set out clearly in the petition:
"The Chief Adjudicator's conclusion that the arrest warrants were not genuine documents is not a conclusion that he was justified to reach in the light of the evidence before him. The Chief Adjudicator reached that conclusion on the basis of his consideration of Document A placed before the hearing on 2 December 1998 by the respondent. Document A bears to be a report from the British High Commission in New Delhi. Document A is dated 1 May 1997. It bears to be in response to an enquiry made by the respondents of the High Commission on 15 October 1996. Document A gives no indication of the basis upon which the report was prepared. Inter alia, no indication is given of when the visit referred to therein was made, who made the visit, the nature of the enquiries made of the Clerk to the Magistrates referred to therein, the basis on which the visitor concluded that the Clerk was authorised to make the statement that he did, or why appropriate evidence was not produced from an official who was authorised to do so. Furthermore, no enquiries were made of a local police station as to the authenticity of the arrest warrants. Document A does not provide a sufficient basis for the Chief Adjudicator to have been entitled to conclude that the two arrest warrants were not genuine. He was accordingly wrong to do so.... The Chief Adjudicator was not entitled to reach the conclusion he did from the evidence before him and separatim by so reaching such a conclusion he acted unreasonably and separatim he did not give adequate reasons for his decision, and accordingly his decision to dismiss the petitioner's appeal should be reduced."
Counsel for the petitioner repeated those criticisms of the Chief Adjudicator's decision, and submitted that no reasonable Adjudicator would have treated the contents of the telex as reliable, given the lack of information in the telex as to the nature of the enquiries, and bearing in mind the importance of what was at stake. No reasons had been given for accepting the telex as reliable, and rejecting the submissions made by the petitioner's solicitor. Other criticisms of the determination, which were made in the petition for judicial review, were not argued.
[8] I reject the contention that the Chief Adjudicator was not entitled to treat the contents of the telex as reliable. It was not in dispute either before the Chief Adjudicator or before myself that the document in question was a genuine telex from the British High Commission in New Delhi. On the face of the telex, enquiries were made in respect of the petitioner's application for asylum: the telex bears the petitioner's name, his date of birth and the reference number appearing on all the Home Office documents concerning his application for asylum. On the face of the telex, a representative of the British High Commission visited the Magistrate's Office in Phillaur, in order to check the authenticity of the warrants. Since the purported warrants bore to have been issued by the First Class Magistrate there, that was the appropriate place to carry out enquiries. Given that each warrant bore to have been issued by a Judicial Magistrate First Class at Phillaur, the Clerk to the First Class Magistrate was an appropriate persons as to advise as to whether the purported warrants were genuine or not. It is of course true that the telex does not indicate when the visit was made or who made the visit. Those were matters which the Chief Adjudicator was entitled to have regard to in deciding what weight to attach to this evidence. They did not, however, mean that he was bound to conclude that the contents of the telex were unreliable. In this connection, I note that the petitioner and his advisors had been aware of the enquiries made in Phillaur, as described in the telex, since their receipt of the Secretary of State's decision letter of 27 May 1998. If they had wished further information as to the nature of the enquiries made, in order to confirm or challenge their adequacy, then such information could doubtless have been requested of the Home Office. Counsel for the petitioner accepted that no such requests had been made. Nor was the respondent given notice that any further information might be required, for example by raising the issue in the appeal against his decision. The only ground of appeal was in the following terms:
"The decision is contrary to the United Kingdom's obligations in terms of the United Nations Convention on the Status of Refugees 1951."
Nor was any evidence presented at the hearing before the Chief Adjudicator which might suggest that the contents of the telex were unreliable. The petitioner and his advisors elected to rely upon a legal submission as to the sufficiency of the telex as evidence of the inauthenticity of the warrants. I cannot see any legal basis upon which the Chief Adjudicator could be said to have been bound to accept that submission.
[9] I also reject the submission that the Chief Adjudicator failed to give adequate reasons for his decision. The hearing before the Chief Adjudicator was governed by the Asylum Appeals (Procedure) Rules 1996, S.I. 1996 No.2070. Rule 11(1) required the Chief Adjudicator to issue a written notice of determination. Rule 2(3)(b) provided:
"Every determination shall consist of a concise statement of -
(i) the decision on the substantial issues raised;
(ii) any findings of fact material to the decision; and
(iii) the reasons for the decision."
The Chief Adjudicator defined the issue raised in the appeal:
"He [scil. the petitioner] must establish to a reasonable degree of likelihood that owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion and he being outside the country of his nationality is unable, or owing to such fear is unwilling to avail himself of the protection of that country."
Counsel for the petitioner accepted that was a correct identification of the issue. At the end of the determination the Chief Adjudicator stated his decision on that issue:
"It has not been established to a reasonable degree of likelihood that if the appellant returned to India he would have a well-founded fear of persecution."
The findings of fact material to that decision can be found in the preceding paragraphs:
"It has not been established to a reasonable degree of likelihood or at all that any of the documents (E1 to E6) are genuine.... [the telex] satisfies me that those warrants (documents E3 and E6) are not genuine documents. Accordingly, the fact that two false documents have been produced in support of this appeal renders invalid and of no value the remaining documents....
I do not accept as credible the appellant's evidence to the effect that he was three times arrested and his third arrest that he was beaten and tortured. If this evidence was true I would have expected him to have left India sooner than eighteen months if in fact he was in fear of persecution. The delay in leaving India for eighteen months suggests to me in clear terms that he was not in fear of persecution and I do not accept that he was for eighteen months after the end of his arrest in 1993 until he came to the United Kingdom in 1995 on the run in different parts of India - Delhi, Bombay and other places. If the power of the Indian police was as suggested to me and he was as important to the Indian Police Authorities as he is now suggesting, it seems quite remarkable that at no time did they ever find him. His basic case that he was three times arrested and on the third occasion beaten and tortured has not been established to a reasonable degree of likelihood or at all.
If the Indian police had been as interested in him as he suggests, it is remarkable that he was on three occasions released after a matter of days and in no case was he charged with any offence.
On his own account he gave food and shelter to the Khalistan Commando Force. He did not do any active service and I do not accept, and it has not been established to a reasonable degree of likelihood, that if that low level involvement in the Sikh movement was at the height of his involvement that the Indian Police Authorities would have been sufficiently interested in him to cause him to be on the run for eighteen months. I find the appellant's evidence of his participation, arrest and being on the run wholly unconvincing." (emphasis added)
The reasoning connecting these findings of fact to the decision on the substantial issue is made perfectly clear. The reasons for the findings themselves are also clearly explained. In particular, it can be seen that the Chief Adjudicator considered the purported warrants produced by the petitioner as evidence supporting his claim to have a well-founded fear of persecution. He explained that he had rejected that evidence because he was satisfied that the purported warrants were not genuine. He explains that he reached that conclusion because he was satisfied that the telex from the British High Commission established that enquiries had been carried out by the British authorities in India, and that those enquiries established that the warrants were not genuine.
[10] As was observed by Lord President Emslie in Wordie Property Co Ltd v Secretary of State for Scotland, 1984 S.L.T. 345, 348:
"The decision must, in short, leave the informed reader and the court in no real and substantial doubt as to what the reasons for it were and what were the material considerations which were taken into account in reaching it."
That observation was made in the context of planning law, but it provides a reliable guide in the present context also. Applying that approach to the present case, I am satisfied that the Chief Adjudicator gave adequate reasons for his determination: the informed reader and the court could be in no doubt as to what the reasons for his decision were, and what were the material considerations taken into account in reaching it.
[11] In these circumstances, I shall sustain the respondent's second plea-in-law, repel the petitioner's pleas-in-law and refuse the petition.
