R v. Immigration Appeal Tribunal, ex parte Sardar Naqeeb Ahmed

IN THE HIGH COURT OF JUSTICE

CO/0855/98
QUEEN'S BENCH DIVISION

CROWN OFFICE LIST

Royal Courts of Justice
The Strand
London

Thursday 10 June 1999

Before:

MR DAVID PANNICK QC
(Sitting as a Judge of the Queen's Bench Division )




THE QUEEN

- v -

IMMIGRATION APPEAL TRIBUNAL

Ex parte SARDAR NAQEEB AHMED

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Computer Aided Transcription by
Smith Bernal, 180 Fleet Street, London EC4
Telephone No: 0171-421 4040
(Official Shorthand Writers to the Court)
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MR RAMBY DE MELLO (instructed by Messrs Tyndallwoods, Birmingham B2
5TS) appeared on behalf of THE APPLICANT

MISS KASSIE SMITH (instructed by the Treasury Solicitor) appeared
on behalf of THE RESPONDENT

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J U D G M E N T
(As Approved by the Court )
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Thursday 10 June 1999

1. THE JUDGE: This is an application for judicial review in the context of an asylum decision. The applicant is a national of Pakistan; he was born in 1952. On 14 June 1991 he arrived in this country and he was given leave to enter for six months as a visitor.

2. On 3 December 1991 he applied for asylum and the Secretary of State rejected the asylum claim on 10 October 1995. The applicant appealed and the special adjudicator, Mr Selwyn, dismissed the appeal on 21 February 1996. The Immigration Appeal Tribunal refused leave to appeal, but that decision was quashed in this court by consent. Thereafter the Tribunal gave leave to appeal and remitted the asylum claim for hearing de novo by another special adjudicator. That determination by the Immigration Appeal Tribunal was notified on 20 August 1997. On that occasion the Tribunal referred to the submissions made on behalf of the applicant, and in particular to the criticism that in his determination the original special adjudicator, Mr Selwyn, had made no reference to the considerable number of documents before him and had failed to give any reasons for rejecting arguments based on those documents. The submission was that the special adjudicator had made no findings as to the applicant's subjective fear, had made no findings as to whether the applicant was a member of a political party, and had made no findings whatever with regard to the genuineness of certain reports which were in the bundle before him.

3. The Tribunal concluded on that occasion that these and other submissions made on behalf of the applicant by his solicitor, Mr Phillips, were

"most persuasive. The appellant has made clear claims that he had been arrested and detained and maltreated on a number of occasions and that at least one warrant had been issued for his arrest. However, the adjudicator in the determination has failed to deal with the first information reports and the other documents relevant to the appellant's claim and has not carried out an exercise of analysis in respect of the evidence before him. He has reached certain conclusions both with regard to credibility and with regard to the genuineness of the arrest warrant of 10 February 1992, but has failed to give any reasons for his conclusions".

4. The applicant's claim for asylum was based on his political activities and on the consequences to which he says those activities have given rise. In brief, the applicant says that he presented himself as a candidate for a political party in the District Council elections. A point then arose where the applicant decided that he could not succeed in obtaining election, but in order to reduce the prospects of success for another candidate he stood down and indicated that his supporters should vote for a third party. This, he says, led to threats of reprisals against the applicant. He claims that he and his wife suffered arrests and detentions. He says that, as a consequence of these political activities, criminal prosecutions have been brought against him of a spurious nature for reasons of vengeance on political and personal grounds. He says that a whole succession of police actions against him have been politically motivated and based on local political rivalry. He claimed that wherever he went in Kashmir where these alleged events took place -- or indeed anywhere else in Pakistan -- he would be at risk of arrest by the police by reason of these "trumped-up" political charges (as he categorises them). He claims that he has been detained and maltreated for these political reasons.

5. The matter came before special adjudicator, Ms Cheales, on 2 January 1998. She dismissed the appeal. On 23 January 1998 the Tribunal refused leave to appeal from her decision. Leave to move for judicial review was thereafter granted. The special adjudicator rejected the asylum claim because, having heard his oral testimony, she found the applicant not to be a credible witness. At the beginning of her determination the special adjudicator set out the legal test to which no exception has been taken on the applicant's part; she then described some of the evidence that she had heard; and finally she made findings primarily in relation to credibility. In those findings she stated that she had considered all the evidence with care and

"I did not find the appellant to be a credible witness. There are numerous discrepancies within his written evidence and oral evidence. These relate not to minor matters of detail but to fundamental issues within his political asylum application."

6. The special adjudicator then identifies the specific discrepancies which she finds in relation to the way in which the applicant has described his asylum claim on various occasions, and she identifies her criticisms of the applicant's specific accounts of his alleged concern. The special adjudicator concludes on this aspect of the case:

"I found that these discrepancies severely damaged the appellant's credibility and go to the heart of his asylum claim. A large volume of evidence has been produced by the appellant's representatives and I have attempted to consider it all. I do not intend to list each and every piece of evidence."

7. The special adjudicator then referred to the arrest warrants which had been produced by the applicant and which relate to what he describes as the "trumped-up" charges. She said that because of the applicant's lack of credibility (as she had found it) she did not believe that the arrest warrants could stand on their own and make a basis for a successful political asylum application.

8. Finally, the special adjudicator referred to the question of whether or not the applicant in any event could live safely in a part of Pakistan other than Kashmir. She stated:

"The appellant lived for one year in Rawlpindi without any apparent difficulty. I do not accept that he lived in hiding for that amount of time. I believe that he could, and did, live safely elsewhere in Pakistan if he does not wish to live in his home country."

9. I understand the adjudicator to mean by "home country" Kashmir.

10. On behalf of the applicant, Mr de Mello makes three main points. His first complaint is that the special adjudicator made adverse findings on credibility in isolation from any objective analysis and findings on whether political opponents in Pakistan are subject to "trumped-up" criminal charges supported by the government, as the applicant here alleges, in the sort of circumstances claimed by the applicant. Mr de Mello says that there was ample evidence of a general nature in the material before the special adjudicator to show that such conduct does occur and this was at least relevant to the special adjudicator's assessment of the credibility of the applicant's claim.

11. Mr de Mello relies on two main authorities. He draws my attention to the judgment of Schiemann J in R v Immigration Appeal Tribunal, ex parte Amin [1992] Imm AR 367, 374, where it was stated:
"In my judgment adjudicators should indicate with some clarity in their decisions:

(1) what evidence they accept;

(2) what evidence they reject;

(3) whether there is any evidence as to which they cannot make up their minds whether or not they accept it;

(4) what, if any, evidence they regard as irrelevant."

12. The other authority to which he draws my attention is the decision of the Immigration Appeal Tribunal presided over by His Honour Judge Pearl in Horvath v Secretary of State for the Home Department [1999] INLR 7. In that decision the Tribunal recognised that it had power to review conclusions of fact arrived at by special adjudicators, but that it would be reluctant to interfere with such findings when they were dependent on the special adjudicator's assessment of the credibility of a witness who had appeared before the special adjudicator. There is ample authority in this court and in the Court of Appeal to support that proposition. However, the Tribunal went on to recognise that there may be circumstances in which the Appeal Tribunal would be prepared to interfere with the findings by the special adjudicator even in a case where the decision turns on adverse conclusions as to credibility. At page 17 of the report Judge Pearl stated:

"(21) It is our view that credibility findings can only really be made on the basis of a complete understanding of the entire picture. It is our view that one cannot assess a claim without placing that claim into the context of the background information of the country of origin. In other words, the probative value of the evidence must be evaluated in the light of what is known about the conditions in the claimant's country of origin."

13. Mr de Mello's first point is that this principle has been ignored by the special adjudicator in this case.

14. On behalf of the Secretary of State, Miss Smith gives the following three responses to that criticism. First, she says that the court will be very slow indeed to interfere with findings made by the special adjudicator as to the credibility of an applicant from whom she had heard oral evidence. The special adjudicator, having seen and heard the witness, is plainly better able to assess credibility than this court. I consider that, as Horvath recognised, there is a difference between reviewing the merits of the special adjudicator's findings on credibility, and requiring the special adjudicator when making those findings to place them in the context of general findings about the prevalence of the conduct of which the applicant complains. Secondly, Miss Smith reminds me that the special adjudicator did refer to the background evidence. The special adjudicator stated:
"A large volume of evidence has been produced by the appellant's representatives and I have attempted to consider it all. I do not intend to list each and every pieces of evidence."
She added:
"I have considered all the evidence in this case with care."

15. However, that does not answer the criticism that the special adjudicator made no findings at all on the objective position and did not consider credibility in the context of any such findings.

16. Thirdly, Miss Smith submits, correctly, that the test for asylum has both subjective and objective elements. The applicant must show that he has a subjective fear of persecution on Convention grounds and, if so, that such fear is objectively well founded. Miss Smith drew my attention in this respect to the speeches in the House of Lords in R v Secretary of State for the Home Department, ex parte Sivakumaran [1988] 1 AC 958. But to recognise that there are cases where the credibility of the subjective fear needs to be assessed partly by reference to findings on the objective facts does not conflict, in my judgment, with the test laid down by the House of Lords.

17. In my judgment this is a case where the special adjudicator has erred in principle. She has made findings on credibility in complete isolation from any conclusions about the prevalence in Pakistan of the type of conduct which the applicant claims to fear. It has been an important part of the applicant's case, as the Tribunal recognised when allowing the appeal against the first adjudicator's decision, to draw attention to the general evidence relating to conduct of the type of which the applicant claims to be a victim, and to draw attention to the consequences of such conduct. Indeed, as I have already indicated, the tribunal on the first occasion criticised the first adjudicator for failing to consider the complaints in context.

18. The special adjudicator's decision with which I am concerned is striking for the absence of any relevant general findings, and for the absence of any attempt to consider the applicant's credibility in the context of any general findings as to Pakistan, despite the general material upon which the applicant placed considerable reliance.

19. Applying the principle in Horvath, which in my judgment is a correct principle which has application in relevant cases, this special adjudicator, by considering credibility in complete isolation from the general picture, has erred in law. I emphasise that I do not find that it is incumbent on all special adjudicators to make detailed, or indeed any, findings on the general position where they consider that an applicant lacks credibility. I find that in the circumstances of this case, given the nature of the applicant's complaints, it was, in my judgment, incumbent on this adjudicator, if she was properly to assess this applicant's credibility, at least to make some findings about the general position and to assess the credibility of the applicant's concerns in that context.

20. The second ground of challenge advanced by Mr de Mello is that the findings on credibility themselves are said to be perverse and inadequately reasoned. In my judgment this submission, which was put in various ways, is unsustainable. The special adjudicator had the benefit of seeing and hearing the applicant as a witness. Subject to the first point on which I have found in favour of the applicant, I can see no basis for challenging the findings on credibility.

21. The third point made by Mr de Mello is a criticism of the findings of the special adjudicator on the question of internal flight. I have already read out the special adjudicator's findings, but I shall repeat them. She said:

"The applicant lived for one year in Rawlpindi without any apparent difficulty. I do not accept that he lived in hiding for that amount of time. I believe that he could, and did, live safely elsewhere in Pakistan if he does not wish to live in his home country."

22. Mr de Mello has made two points on this aspect of the case. First, he says that the special adjudicator failed to consider whether it would be reasonable to require the applicant to live in Rawlpindi rather than in Kashmir from where he comes. But, as Miss Smith submitted, it is plainly implicit in the reasons of the special adjudicator that she saw nothing unreasonable about expecting the applicant to live in Rawlpindi. After all, she had found that the applicant had lived openly in Rawlpindi for a year without difficulty. Mr de Mello's other point is that the finding on internal flight cannot stand in the light of my conclusion on the first issue: the failure to assess credibility in the light of the general position. In my judgment that submission is well founded. If, as I have found, the special adjudicator failed properly to assess the credibility of the applicant's claim to fear of persecution in Kashmir, having regard to the applicant's general contention about the prevalence of "trumped-up" political charges, the findings which the special adjudicator may have made, had she properly considered that matter, may well have had an impact on her assessment of the applicant's credibility in relation to whether he had been living in hiding in Rawlpindi, as he claimed, fearing that the allegedly "trumped-up" charges would be used against him in whichever part of Pakistan he lived.

23. For these reasons I have concluded that the special adjudicator in this case did err in law and that the decision of the Tribunal to refuse leave to appeal has to be quashed.

24. In considering this case I have been greatly assisted by the excellent submissions, both written and oral, of Mr de Mello and Miss Smith, and I am grateful to both of them.

25. MR DE MELLO: My Lord, I ask, first, for an order of certiorari to quash the adjudicator's determination and for the matter to be remitted to the Immigration Appeal Tribunal to consider granting leave, and secondly I ask for costs.

26. THE JUDGE: That must follow, Miss Smith, must it not?

27. MISS SMITH: My Lord, I cannot oppose either of the applications.

28. THE JUDGE: I shall quash the decision of the Tribunal, remit the matter to the Tribunal for them to consider whether to grant leave to appeal, and order that the Secretary of State pay the costs of the judicial review application.

29. MISS SMITH: My Lord, I would make application for leave to appeal, particularly in the light of your finding on the Horvath case. As I understand it, this is the first time that this issue has been dealt with by this court and I would like the opportunity to take the matter further.

THE JUDGE: Mr de Mello?

30. MR DE MELLO: Your Lordship should be told that in the case of Horvath the Secretary of State was represented by Robin Tam and leave to appeal was refused in that case.

31. THE JUDGE: Refused by whom? By the Tribunal?

32. MR DE MELLO: By the Tribunal. I do not know if, following that refusal, an application was made to the Court of Appeal. You will not have that information, but I have a full copy of the determination. You will see it on the last page.

33. THE JUDGE: Miss Smith, the position is, is it not, that the Secretary of State could have sought leave to appeal from the Court of Appeal itself in Horvath. Either he did so, in which case the matter will be pending, or he did not.

34. MISS SMITH: My Lord, those are the instructions I have been given. I will not push this application.

35. THE JUDGE: I think that if the Secretary of State wishes to pursue this matter he should seek leave to appeal from the Court of Appeal itself. Leave is refused. Thank you.