R v. Secretary of State for the Home Department, Ex parte Singh

R v SECRETARY OF STATE FOR THE HOME DEPARTMENT ex parte SINGH

Queen's Bench Division

[1992] Imm AR 607

Hearing Date: 14 August 1992

14 August 1992

Index Terms:

Political asylum -- Sikh -- refusal of application by Secretary of State -- whether approach by Secretary of State erroneous in law -- whether the normal political asylum questionnaire was defective in form and vitiated decisions taken on the basis of replies recorded therein -- whether Secretary of State erred in drawing conclusions adverse to the applicant from the fact that he identified no causal link between the detention of the applicant and his subsequent departure from India -- whether the Secretary of State was wrong to appear to discount periods of detention suffered by the applicant because he was subsequently released without being charged with any offences -- whether the Secretary of State had erred in failing to identify a sub-group of Sikhs, those politically active, liable to persecution -- whether he had failed to attach weight to the unauthorised activities of the police -- whether the Secretary of State had a duty to reveal to an applicant all the sources and information on which he relied to provide the general background against which he assessed the validity of an individual case.

Held:

Application to move for judicial review of the refusal by the Secretary of State to grant political asylum to the applicant. The applicant was a citizen of India, a Sikh, who had entered the United Kingdom clandestinely and on his arrest had claimed asylum. Counsel made a wide-ranging attack on the decision making process, and the terms of the refusal letter. He argued that the political asylum questionnaire form was defective, and decisions taken on the basis of replies to it were vitiated. He submitted that the Secretary of State was wrong to take an adverse view of the fact that no causal link was established between the applicant's detention and his subsequent departure from India. The law did not require any such causal link to be demonstrated. Likewise the Secretary of State was wrong to devalue the periods of detention where an applicant was subsequently released without any charges being made: release without charge did not mean that the periods of detention could not constitute persecution. He also submitted that in asserting that not all Sikhs were subject to persecution, he had failed to identify a sub-group, of politically active Sikhs, who were per se subject to persecution. In assessing the general back ground in the Punjab, against which he evaluated an individual case, such as that of the applicant, he erred in law and acted contrary to natural justice, in not revealing to the applicant all those sources of information on which he relied. Finally, the Secretary of State had failed to take account of the unauthorised activities of the police in the Punjab. Held 1. The form of the political asylum questionnaire could not be criticised. It offered an applicant the opportunity to state whatever he wishes to state. 2. While the law did not require a causal link to be established between, for example, periods of detention and an applicant's departure from his native country, the Secretary of State was entitled to take account of causes and effects or the absence of them. 3. The court considered the language used in relation to periods of detention not followed by the laying of charges against an applicant somewhat surprising, but concluded that did not necessarily suggest the Secretary of State had applied the wrong test. 4. The Secretary of State had no obligation to reveal all the sources of information on which he relied to assess the background, against which he evaluated an individual claim for asylum. 5. On a review of the facts, the court concluded that the Secretary of State had approached the application in a proper manner and had applied the correct test. There was no arguable case for judicial review.

Cases referred to in the Judgment:

No cases are referred to in the judgment.

Counsel:

MD O'Dempsey for the applicant; I Ashford-Thom for the respondent PANEL: Pill J

Judgment One:

PILL J: This is an application for leave to apply for judicial review. The applicant Mr Roj Singh seeks to quash the decision of the Secretary of State for the Home Department made on 14 May 1992 refusing the applicant refugee status. The applicant is a Sikh aged 25 who for many years was resident in the Punjab. In the material in support of his application he sets out events which occurred in the 1980s which he claims have created a fear of persecution in the state of India within the meaning of that term in the Convention. The events described, which I do not propose to set out in detail, culminated in events involving the applicant and his family in 1988 and 1989. The applicant left India in May 1991 and went to Germany. He applied for asylum there, but for reasons, into which it is not for present purposes necessary to go, he left Germany in December 1991, it appears via the Netherlands and arrived in the United Kingdom on 20 December 1991. He arrived clandestinely. He was arrested when leaving a Cambridge restaurant on 9 March 1992. He then applied for asylum on 12 March 1992 and was interviewed on that day. A minded to refuse letter was sent to him during that month. He was interviewed again on 30 March 1992. Further submissions were made on his behalf to the Home Office with a letter of 21 April 1992. The decision complained of refusing the status requested was made by letter dated 14 May 1992. Carefully prepared and detailed submissions were then made on the applicant's behalf to the Home Office in a document running to 20 pages dated 22 June 1992. A further letter was written to him on 5 August 1992 and that letter runs to four pages and purports to deal with some of the matters raised by the applicant in the written submissions. Mr O'Dempsey on behalf of the applicant submits, and rightly so, that the contents of the August letter cannot correct an earlier defective decision. He relies upon the contents of the August letter as establishing, he submits, that in making his decision the Secretary of State in May and before May applied the wrong test. Mr O'Dempsey first submits that the form used on an asylum application is defective and that any decision against an applicant filling in that form is liable to be quashed and he complains in particular of the expression "other organisations" in part C of the form which he submits limits the scope of representations to be made on behalf of an applicant. I find no merit whatever in that submission. The form permits an applicant to state what he chooses to state and there is a sheet specifically headed "continuation sheet for additional or for additional relevant information". Mr O'Dempsey has analysed the decision letter, which is a detailed letter, with care. He complains of the fact that emphasis appears to have been placed by the Secretary of State upon the periods of detention in the Punjab on which complaints have been made by the applicant. He submits that the contents of the letters shows that other questions of complaint were not given their proper weight because of the improper emphasis placed on the question of detention. Other relevant matters have been raised by the applicant, it is submitted, in relation to police activities towards the applicant and the violence towards his family and these have not been given proper consideration. He submits, and there can be no dispute about this, that relevant fears may be based on matters other than the applicant having been detained. Mr O'Dempsey further submits that the expression "causal link" in the decision letter also demonstrates that the Secretary of State has applied the wrong test. In law it is not necessary to establish a causal link between the period of detention and the decision to leave India. As a matter of law, that proposition cannot be disputed but I say at once that, in my judgment, the presence of that expression does not make it arguable that the Secretary of State has applied the wrong test in law. There is, and Mr O'Dempsey, I do not believe, disputes this, an evidential value in considering the relationship in time and in terms of cause and effect between an incident in India relied upon as showing a fear of persecution and the timing of the applicant's departure from India. I cannot hold that it is arguable that by using the expression "causal link" the Secretary of State has applied the wrong test when considering this application. Mr O'Dempsey also draws attention to the Secretary of State's reliance, as Mr O'Dempsey puts it, upon the fact that the applicant was released without "charge" each time he had been detained. He submits, and I accept this submission, that being released without charge does not necessarily justify the detention which has preceded the release. It does not necessarily follow from the absence of a charge that the detention did not occur in circumstances which would give rise to a fear of persecution. I do find the terminology somewhat surprising, but I cannot accept that the use of that expression creates an arguable case, even taken with other factors, that the wrong test has been applied or that the evidence has not properly been weighed in this case. Mr Ashford-Thom makes the point that the release without charge does at least demonstrate that there is no evidence of what he described as trumped-up charges being put against the applicant and that may be so. But release without charge appears to me to be a neutral piece of evidence in this case. It is mentioned as a part of the narrative and is an accurate statement and I cannot accept that the Secretary of State misled himself in using that expression or that he misunderstood the significance of what had happened. Mr O'Dempsey submits that the Secretary of State has not properly considered the "group" to which the applicant belongs. The Secretary of State must also consider sub-groups, he submits, and that has not happened here. Reference was made to the August letter where the Secretary of State states that he does not accept that there is evidence of persecution within the terms of the convention against Sikhs generally in the Punjab or against supporters of an independent Sikh homeland or against alleged Sikh terrorists. What the Secretary of State has not considered, Mr O'Dempsey submits, is whether there has been persecution or is likely to be persecution of a sub-group (namely politically active Sikhs) and that is the sub-group to which the applicant belongs. In his letters the Secretary of State has made reference to information which he has received from other sources and it would be a part of his responsibility when deciding applications such as the present application for asylum to inform himself as to the conditions which exist in the relevant country. Mr O'Dempsey does not complain about that and accepts that the Secretary of State is entitled to take into account information obtained from other sources including the information from Amnesty International, which is exhibited with the applicant's solicitors' affidavit and upon which Mr O'Dempsey relies. Mr O'Dempsey's complaint is that the applicant has been deprived of a fair hearing before the Secretary of State in that he has not been given all the information upon which the Secretary of State has relied in forming an opinion as to conditions in the country. I am not able to accept that it is arguable that there is an obligation upon the Secretary of State having informed himself about conditions, to disclose the whole of the information he has considered to an applicant for asylum. Mr O'Dempsey also referred to paragraph 65 of the Convention. I still fail to understand the relevance of that to his application as presented. When that was put to Mr O'Dempsey he developed a further submission that what the Secretary of State had not considered was the extra-curricular, that is my expression based upon my understanding on what Mr O'Dempsey was submitting, activities of the police authorities in the Punjab. He submits that while the Secretary of State has considered the activities of the police which have been authorised by the authorities, what the Secretary of State has not considered when making his decision are unauthorised activities of individual police officers or groups of police officers. It is right to say that the point was raised in the written submissions made to the Secretary of State after he had made his decision and was then dealt with by the Secretary of State in the letter of 5 August; indeed, the Secretary of State in that full letter does in effect say that he does not have evidence of a failure of discipline which can have led to unauthorised police activities which might create a fear of persecution. In my judgment there is no evidence of such activities which the Secretary of State was obliged to consider and which he has failed to consider. He considered, by whichever category it may have been classified, the evidence before him and the evidence presented by and on behalf of the applicant and other information available to him. If one looks at the applicant's statements which pre-date the decision, they do not attempt to create the distinction which at this stage Mr O'Dempsey seeks to create. The complaints made, and which, in my judgment, have been considered and properly considered by the Secretary of State, are complaints of police activities generally. Evidence was presented to the Secretary of State of alleged activities by the authorities in the Punjab against the applicant, against his family and against other organisations with which he was involved. Mr O'Dempsey submits that the Secretary of State must look at the negative as well as the positive aspects of the situation. I am satisfied that he did so. I find no evidence that he has applied the wrong test. The conclusion I reach is that he has applied the correct test. He has considered the narrative. He has considered the evidence and he reached a conclusion which he was entitled to reach. He was entitled to have regard to the sequence of events which preceded the application for asylum on 12 March as being relevant to the issue which he had to consider. I have every reason to believe that this application has been carefully considered by the Secretary of State and I cannot find it arguable that he has made an error of law which would entitle this court to interfere with the Secretary of State's decision. Mr O'Dempsey has addressed me at much greater length than is customary in applications of this kind. As it is an application for asylum, I make no complaint about that. Mr O'Dempsey has made all the points on behalf of the applicant which could be made as, in the written memorandum, did his instructing solicitor. There is no arguable case in my judgment. This application must be refused.

DISPOSITION:

Application dismissed

SOLICITORS:

Jennings, Son & Ash, Romford, Essex, Treasury Solicitor