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

[1994] Imm AR 42

Hearing Date: 21 July 1993

21 July 1993

Index Terms:

Political asylum -- refusal by Secretary of State -- applicant associated with a body allegedly terrorist in nature and acting unlawfully in its own country -- whether Secretary of State justified in concluding that such a person facing legitimate processes of law within his own country should not normally be accorded the status of a refugee -- whether Secretary of State had adopted correct approach to assessment of attitude of the authorities to improper conduct by those enforcing law and order. Handbook on procedures and criteria for determining refugee status (1979) para 65.

Held:

The applicant for leave to move for judicial review was a citizen of India. He had been refused political asylum. The basis of his claim was that he was persecuted by the police in the Punjab, who used improper means to enforce law and order. The applicant was associated with a group which in the Punjab had been involved in terrorist activities. Counsel submitted that the Secretary of State had not asked himself the right question when considering whether the assertions by the applicant could ground a claim to a well-founded fear of persecution. Held 1. The Secretary of State, in assessing the applicant's claim had correctly followed the principles set out in Jeyakumaran. 2. The Secretary of State had quite properly borne in mind that a person who was associated with a terrorist group acting unlawfully in its own country should not normally be given refugee status when facing legitimate processes of law within his own country, where those processes were properly applied. 3. The Secretary of State had clearly considered, as he was obliged to consider, the individual circumstances of the applicant.

Cases referred to in the Judgment:

R v Secretary of State for the Home Department ex parte Salladurai Jeyakumaran (unreported, QBD, 28 June 1985).

Counsel:

P Epstein for the applicant; R Jay for the respondent PANEL: Auld J

Judgment One:

AULD J: This is an adjourned application by Baljit Singh for leave to apply for judicial review against the Secretary of State's decision which had the effect of refusing him asylum as a refugee. The applicant is a Sikh and a member of a body which seeks the establishment in the Punjab of an independent Sikh state to be known as Kalistan. He has claimed asylum as a refugee in this country, broadly based on allegations of persecution by members of the police force in his home country acting outside the law. He maintains that the Secretary of State has asked himself too narrow a question when considering whether that conduct may support a claim that he has a well-founded fear of persecution in his country. He also maintains that the Secretary of State, in his consideration of the likely inquiries that the police might make of him if he were to return, has failed to take account that their conduct and their inquiries would be conducted unlawfully. Thirdly, in substance, he complains that the Secretary of State, in his refusal, has failed to look at the individual circumstances of his case. As to the first complaint, that the Secretary of State has failed to ask himself the correct question, that is drawn from paragraph 65 of the Handbook on procedures and criteria for determining refugee status, issued by the UNHCR. That paragraph reads as follows: "Persecution is normally related to action by the authorities of a country. It may also emanate from sections of the population that do not respect the standards established by the laws of the country concerned. A case in point may be religious intolerance amounting to persecution in a country otherwise secular, but where sizeable fractions of the population do not respect the religious beliefs of their neighbours. Where serious discriminatory or other offensive acts are committed by the local populace they can be considered as persecution if they are knowingly tolerated by the authorities, or if the authorities refuse, or prove unable, to offer effective protection." That paragraph was considered by Taylor J, (as he then was), in the unreported case of Jeyakumaran on 28 June 1985. The complaint here is that, whilst the Secretary of State addressed the question whether the authorities in the Punjab condoned or otherwise the action of police officers acting outside their authority, he did not, or did not adequately, address the question whether the authorities there were taking steps to prevent such unlawful behaviour. That is not borne out by the way in which the Secretary of State expressed himself in his minded to refuse letter of 10 December 1992. Having dealt with the alleged unlawful behaviour of members of the security forces he said this: "The Secretary of State notes that these violations have not been condoned by the Indian or State Governments and that action has been taken by the authorities against officers suspected of being involved." In his letter of March 1993, confirming the minded to refuse letter, he returned to the same point in these words: "As the Secretary of State explained in his letter of 10 December 1992 he is aware that the police have violated human rights but these have not been condoned by the Indian Government who have taken measures to protect the human rights of its citizens." So the Secretary of State looked beyond the question of condonation at the steps that were being taken to overcome any such unlawful behaviour and was satisfied that effective steps were being taken to do that. He accordingly followed the course which Taylor J, (as he then was), in Jeyakumaran said must be followed when such an issue arises. There is no arguable merit in that ground of the application. As to the second ground of application, the thrust of it appears to be that the Secretary of State's view that police inquiries into the applicant's involvement with any terrorist organisation in the Punjab would be justifiable amounted to a view that torture was a justifiable police inquiry into terrorist activity. That is not how the Secretary of State regarded it. It is clear, both from the minded to refuse letter and the subsequent letter in March 1993, that what the Secretary of State had in mind quite properly was that the applicant was a member of a body, or associated with a body, allegedly terrorist in nature and acting unlawfully in its own country and that the status of a refugee should not normally be given to someone facing the legitimate processes of law within his own country properly applied. It is implicit in the Secretary of State's two letters that he was of the view that steps had been taken to ensure that they would be properly applied. There is no arguable merit in that ground either. As to the third ground, in substance it is that the Secretary of State failed adequately to investigate and to consider the individual circumstances of the applicant, however adequately he may have informed himself generally on the position in the Punjab. I do not think that I need to deal in great detail with the way in which the Secretary of State expressed himself on that issue. It is quite clear that he had regard to the evidence in various forms submitted to him on behalf of the applicant, and, overall, did not believe it. He said so in both his letters. It is quite clear, too, that he did consider the individual circumstances of the applicant against the backdrop of the general position as he knew it to be in the Punjab. There is no basis for saying that he did not approach the case having regard to the individual circumstances of the applicant. As to the question whether his conclusion, having done so, was perverse, there is no basis upon which a court could take the view that it was unreasonable or perverse. This is essentially a matter for the Secretary of State's judgment, a judgment which, no doubt, was affected, and quite properly so, by his disbelief of a significant part of the evidence put forward in support of the applicant's case going to his own circumstances. Accordingly, leave is refused.

DISPOSITION:

Application refused

SOLICITORS:

Davis Walker & Co, Chalfont St Peter, Bucks; Treasury Solicitor