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Scottish Court of Session Decisions |
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You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Bhattacharjee v Secretary Of State For The Home Department, Re Application For Judicial Review [1999] ScotCS 188 (6 August 1999) URL: http://www.bailii.org/scot/cases/ScotCS/1999/188.html Cite as: [1999] ScotCS 188 |
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OUTER HOUSE, COURT OF SESSION
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OPINION OF LORD BONOMY
in Petition of
RAMANANDA BHATTACHARJEE
Petitioner;
against
THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent:
for
Judicial Review of determinations of a special adjudicator and the immigration appeal tribunal
________________
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Petitioner: MacDonald; Henderson Boyd Jackson, W.S.
Respondent: Lindsay; Scottish Office Solicitors Office
24 June 1999
The petitioner seeks reduction of the decision of a special adjudicator to refuse his application for political asylum and the decision of the immigration appeal tribunal made by the chairman to refuse leave to appeal. Mr MacDonald for the petitioner explained that the two decisions sank or swam together. The reasoning for the decision to refuse leave to appeal was essentially contained in the reasoning of the determination by the special adjudicator. For the petitioner to succeed it was necessary to demonstrate that the adjudicator had erred in law or had reached an unreasonable decision.
The merits of the petitioner's case are dealt with in paragraph 6 of the petition. Paragraph 6.1 explains that in assessing the petitioner's credibility the adjudicator took into account a contradiction in his account of the death of his brother. Paragraph 6.2 states that the contradiction was apparently between a questionnaire completed by the petitioner and his answer to a question at interview. The petitioner submits that there is no contradiction. Paragraph 6.3 pleads an esto case that, if there is a contradiction, the adjudicator failed to consider whether difficulties in translation might account for it. Paragraphs 6.4 and 6.5 are in the following terms:
"6.4 It appears that the adjudicator did not put the contradictions she perceived in the evidence of the petitioner to him when he gave oral evidence. The adjudicator accordingly acted in a manner contrary to natural justice.
6.5 In the foregoing circumstances, the adjudicator erred in law et separatim reached an unreasonable decision. The petitioner seeks declarator and reduction accordingly."
In opening his submission Mr MacDonald explained that there were in fact seven different contradictions identified by the special adjudicator in her determination, that these had been taken into account by her in assessing the petitioner's credibility and that only two of these had been specifically put by her to the petitioner's representative for comment at the hearing before her. That was wrong and vitiated her decision on credibility. In these circumstances her determination of the appeal was undermined and should be reduced.
When I pointed out to Mr MacDonald that that was not the case presented in paragraph 6 of the petition and that the case pled appeared to relate exclusively to one contradiction, Mr MacDonald responded that paragraph 6.4 could be read as referring to contradictions in general.
In my opinion paragraph 6 relates exclusively to the one contradiction identified in paragraph 6.1. I made that opinion clear to Mr MacDonald. He sought leave to amend the petition by referring to the seven contradictions of which five were never put to the petitioner's representative for comment. I noted that the petition first called before me on 7 April 1998 and that no attempt had been made in the intervening period to amend the terms thereof to reflect the argument the petitioner sought to present.
Mr Lindsay for the respondent took what he described as a "neutral" position in relation to the motion to amend. The effect of that of course was that he did not oppose it. However, he did direct my attention to the judgment of Harrison J. in R. v Immigration Appeal Tribunal ex parte Joseph Christy Williams [1995] Imm. A.R. 518. In that case the adjudicator had made adverse findings on credibility based in part on discrepancies in accounts of material events as between what had been said by the applicant in interview and what he said before the adjudicator. The argument was that the adjudicator should have ensured that the discrepancies were put to the applicant at the hearing by reminding him of his earlier account and inviting him to explain the discrepancies. The applicant there relied on the case of R. v Secretary of State for the Home Department ex parte Pathmakumar [1989] Imm. A.R. 402, a case under procedure in force prior to 1993, in which there was no oral hearing. However, reference was also made to R. v Secretary of State for the Home Department ex parte [1990] Imm. A.R. 393, another pre-1993 case where there was no oral hearing and in which it was decided that the crucial question was whether the applicant had had an opportunity to put his views forward. In commenting on that case in his judgment, Harrison J. said this:
"In my view, the situation in this case is considerably stronger than it was in ex parte K because under the appeal procedure now in force the applicant had the opportunity to have an oral hearing before the adjudicator. Such a hearing took place in this case and the applicant, who was represented by counsel at the hearing, had ample opportunity to put forward the points upon which he relied and to deal with any discrepancies there may have been between his oral evidence and what had been said in his asylum application or in his asylum interview".
I asked Mr MacDonald if he had any authority to the contrary or indicative of support for the proposition he sought to advance if permitted to amend the petition. He said there was none.
I decided to refuse the petitioner's motion to amend. No explanation was given to me for the failure to identify the issues in the simple pleadings that are required for a case of this nature. The amendment which was proposed was unsupported by authority and was contradicted by the persuasive authority of Harrison J.. In any event the point Mr MacDonald sought to make was in my opinion unarguable. The petitioner was represented at the oral hearing before the special adjudicator by an immigration consultant. At the hearing he acknowledged that there were discrepancies and made submissions about them. It was no part of Mr MacDonald's case that the petitioner had not been given an opportunity to explain the inconsistencies which could be identified from the papers in the case and events at the hearing. His contention was to be that in relation to credibility a judge must in the course of the hearing identify any point on which he might find against a party on credibility and put that to his representative for comment. That would involve in cases taken to avizandum that the judge or adjudicator should reconvene the hearing to put any points bearing on credibility identified after a careful re-reading of the papers and reconsideration of the evidence led. I reject that as a requirement of natural justice or law or reason. Since amendment would not have advanced matters at all, it would have been an utter waste of time to allow it.
In the light of that decision Mr McDonald advised me he was not in a position to advance any argument in support of the petition. I accordingly refused the prayer of the petition.
