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

IN THE SUPREME COURT OF JUDICATURE

IN THE COURT OF APPEAL (CIVIL DIVISION)

ON APPEAL FROM THE HIGH COURT OF JUSTICE, CROWN OFFICE LIST

(MR JUSTICE SULLIVAN)

2 June 1998

Before:

LORD JUSTICE BELDAM

LORD JUSTICE MILLETT

LORD JUSTICE MUMMERY

IN THE MATTER OF AN APPLICATION FOR JUDICIAL REVIEW

REGINA - v - SECRETARY OF STATE FOR THE HOME DEPARTMENT EX PARTE SINGH

MR M HENDERSON (Instructed by Messrs Chhokar & Co, Middlesex UB1 1JY) appeared on behalf of the Appellant

MR A UNDERWOOD (Instructed by the Treasury Solicitor) appeared on behalf of the Respondent

JUDGMENT

LORD JUSTICE BELDAM:

In this application Mr Henderson renews an application on behalf of Mr Lal Singh to move for judicial review of the decision of a special adjudicator, Mr Davies, given on 30 July 1997 dismissing his claim for asylum.

The applicant is 23 years of age. He is a Sikh from Punjab and an Indian citizen. He arrived in the United Kingdom on 25 November 1996 and claimed to be entitled to asylum on the grounds that he had a reasonable fear of persecution if he returned as a student member of the Sikh Student Federation. According to statements he made to the immigration officer, he had been arrested on 23 October 1996. He had been detained for questioning for five days and invited to assist the police in finding the whereabouts of Mr Billu, the President of the local branch of the Student Federation in the Banga region. There were about 25 members of that branch. He said that he had been released on the intervention of the village council and on payment of a substantial sum of money.

It appears that Mr Billu, whose friend had been killed by the police, decided to take revenge for this killing and to kill the son of the local chief of police, which apparently he did. The applicant claimed he was declared a wanted person, because he was wanted for interview in respect of any knowledge he had about the killing of the son of the chief of police.

In a letter of 28 January 1997 the Secretary of State refused the application and certified that there would be no appeal to the Appeal Tribunal. In short, the reasons which the Secretary of State gave were: it appeared that the appellant had been the holder of a lawful passport to leave India; that he had been able to use that passport to come to the United Kingdom; that he had been able to leave without any impediment; and that the Sikh Student Union (of which he was a member) was not a proscribed organisation, and if the authorities were interested in the applicant, they were interested in him, not as a member of the Union or for any political, religious or other reasons, but because he was a potential witness, or possibly a party, to the murder of the son of the chief of police. The Secretary of State concluded that, even if returned to India, he would have a fair trial, and accordingly refused his application.

The applicant appealed to the special adjudicator. On 7 February 1997 the Secretary of State issued his certificate under section 8(1) of the Asylum Immigration (Appeal) Act 1993. The applicant served a Notice of Appeal on 11 February 1997. A hearing date of 29 May was set for the appeal.

On 28 May 1997 the applicant's solicitors sought an adjournment by fax. The letter which was faxed to the Tribunal offices referred to a medical certificate which had been issued by the applicant's general practitioner certifying that the applicant was unable to attend the hearing on 29 May. The letter said:

"As the just disposition of our client's Appeal requires that Special Adjudicator hear our client's oral testimony, we should be obliged if you would kindly place this letter (and the Medical Certificate) before the Learned Special Adjudicator with the request that the Hearing of our client's Appeal be adjourned to the first open date after a period of 6 weeks.

We regret that we shall not be able to attend at Court on 29th May 1997 and trust that the Court will excuse our absence."

The certificate which was enclosed was dated 27 May. It was addressed to "Dear Sir/Madam". It referred to the applicant and stated:

"This is to certify that Mr Singh is suffering from gastroenteritis since Sunday the 25th of May 1997, therefore unable to travel to London on 20.05.97, having treatment in Derby

Yours Sincerely,

Dr S S Malhi."

By a fax of the same date, the office of the Tribunal communicated with the applicant's solicitors after telephoning them to state that the adjournment request had been refused.

The matter came before Mr Davies at Lincoln House on 29 May as had been decreed. He first considered whether or not to grant an adjournment. He said, after the application for adjournment had been refused:

"I reconsidered that application for an adjournment on the date of hearing. Mr Sims, the Home Office Presenting Officer opposed the adjournment. Having considered the evidence supporting the application for an adjournment it seems to be more probable than not that the appellant would have been able to attend to give evidence. His representatives were aware of the hearing and were local to the hearing centre and chose not to attend. Although I am prepared to accept that the appellant had gastroenteritis that in itself does not satisfy me that he was unable to attend the hearing. I therefore agreed to hear the appeal in the absence of the appellant and his representatives."

He went on to consider all the evidence put before the Secretary of State and also the evidence in written form before him. He recorded the view taken by the Secretary of State, in particular the view that the situation in Punjab was now settled. He said:

"I do not believe the applicant told the truth to the respondent about his activities in India. Even if his account was accepted as the truth he was only marginally involved in the Sikh Student Federation. Even if he had been charged as a result of being implicated in the murder of the policeman's son he would receive a fair trial and Sikhs as a group are not persecuted in India.

I have therefore decided that the appellant's claim is without substance. Having found his account not to have been credible he can produce no other evidence to support his claim and therefore I do not think there are substantial grounds for thinking that if the appellant is returned to India he will or may be persecuted for a Convention reason."

From that decision the applicant sought to move for judicial review before Sullivan J on 3 February. The judge refused leave. In short his reasons were that the adjudicator did not act unfairly or unreasonably in refusing an adjournment. It had been argued before Sullivan J that the adjudicator had given no reasons for rejecting the application for an adjournment but, as Sullivan J pointed out in the paragraphs to which I have referred, the adjudicator did give reasons. He added that the adjudicator was not obliged merely to accept a medical certificate uncritically. He pointed out that pursuant to rule 33(3) the adjudicator was required by the rules to proceed, unless the absent party had furnished him with a reasonable explanation for not attending. The judge therefore rejected the ground of appeal which formed the application that the adjudicator had acted unlawfully or unreasonably in failing to grant an adjournment.

The judge also considered the second ground of application, that the special adjudicator had not given reasons (or had given wholly inadequate reasons) to explain his determination. In saying that the applicant's account was not credible, it was submitted to Sullivan J the adjudicator had not given a reason. Sullivan J said if an adjudicator was required to go further into the matter it would simply be giving reasons for reasons. As Sullivan J said, there was no basis on which the Court could come to the conclusion that the special adjudicator had evidence before him that there was fear of persecution for a Convention reason.

Another matter urged before Sullivan J was that the applicant in his statement had said that whilst in police custody he had been hit in an attempt to obtain a confession from him. Mr Henderson submits, as he submitted to the judge, that that amounts to torture. The judge said that the question of torture did not really arise on the facts as he understood them, if he looked at the applicant's statement it was only concerned with his detention in police custody; Mr Henderson has said today it was almost routine for people in custody to be hit, regrettable though that may be. Sullivan J said that it was therefore unsurprising that the special adjudicator did not feel it necessary to deal with the question of torture to any greater degree.

In the end he concluded that the challenge to the decision of the special adjudicator on the merits was unarguable and he dismissed the application.

Mr Henderson has repeated his submissions in much the same form before us today. He says that the special adjudicator had no grounds for rejecting the medical certificate, but it is quite clear that the special adjudicator looked at the certificate with a properly critical eye; gastroenteritis of four day's standing is hardly a reason for a person not travelling to London, and without any explanation other than he was having treatment in Derby, which was where he lived. What the treatment was, or why he was unable to travel was not explained. It was a decision to which a reasonable adjudicator could come, particularly bearing in mind the rules which required him to proceed, unless he was satisfied by the evidence produced to him that the applicant had a reasonable explanation for not attending.

Accordingly, I agree with the conclusion of Sullivan J that the decision of the special adjudicator was neither unreasonable nor unfair.

On the substantive aspects of the application, for the reasons given by Sullivan J I agree that the application is unarguable. In my view no Convention ground is shown as a basis for a fear of persecution, and if it be the case that those who are detained in prison in Punjab are routinely beaten, as Mr Henderson suggests, that is not a factor which is related to persecution for a Convention reason.

For those reasons I would dismiss this renewed application.

LORD JUSTICE MILLETT:

I agree.

LORD JUSTICE MUMMERY:

I agree.

ORDER:

Application dismissed; legal aid taxation of the applicant's costs.