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	Scottish Court of Session Decisions
You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Kashmire v Secretary Of State For The Home Department [1999] ScotCS 33 (26 January 1999) URL: http://www.bailii.org/scot/cases/ScotCS/1999/33.html Cite as: [1999] ScotCS 33

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The petitioner is a citizen of Pakistan. In or about May 1996 he entered the United Kingdom without leave and applied for political asylum. This was refused by letter dated November 1996. The petitioner appealed against the refusal of asylum and after sundry procedure before the adjudicator and the Immigration Appeal Tribunal his appeal was refused by the special adjudicator on 6 November 1997. Leave to appeal to the Immigration Appeal Tribunal was refused on 21 November 1997. The petitioner now seeks inter alia reduction of the special adjudicator's determination and of the Appeal Tribunal's refusal to grant leave.

In the body of the petition the petitioner also avers that on 24 March 1997 he married Pamela Simpson Blair; that the petitioner's wife is a citizen of the United Kingdom and that on 18 July 1997 agents for the petitioner sought leave for him to remain in the United Kingdom as her spouse. It was common ground before me that no reply to this application had yet been received. Although in these circumstances the petitioner also sought within the petition to have it declared inter alia that he was entitled to have his application for leave to remain as the spouse of a person present and settled in the United Kingdom considered before he was removed from the United Kingdom, since the respondent's position was that he would not be removed from the United Kingdom until the relevant application for leave to remain was determined, it was agreed that this issue did not arise for consideration.

Before me it was agreed that the question before the special adjudicator was whether the petitioner was a refugee within the meaning of Article 1(1A) of the United Nations Convention Relating to the Status of Refugees (as amended); in particular whether the petitioner owing to:

and that that question fell to be decided by consideration of whether there was demonstrated "a reasonable degree of likelihood that he will be persecuted for a Convention reason if returned to his own country" (R. v Secretary of State for the Home Department ex parte Sivakumaran 1988 1 A.C. 958) and that the same standard of reasonable degree of likelihood fell to be applied to assessment of past facts in accordance with the majority decision in Kaja v Secretary of State for the Home Department 1995 1 Imm.A.R. 1.

The essential basis of the petitioner's claim before the adjudicator was that (a) prior to his entry to the United Kingdom certain things had happened to him which led to him being fearful of his continued safety if he remained in Pakistan and (b) that in the light of that, and the continuing political situation in that country, he had a well founded fear of the relevant kind. In particular the main thrust of the petitioner's claim was that because of assistance given by him to Kashmiris he had already been detained and beaten by the police, arrest warrants had been issued for him and he feared for his life at the hands of the police were he to be returned. The evidence before the adjudicator which directly bore on the petitioner's own personal history prior to arrival in the United Kingdom consisted in the first place (there being no oral evidence led before him) of an interview record of 12 September 1996. In addition there were lodged two arrest warrants, two medical reports and two letters from advocates in Pakistan. There were also lodged photographs which it was submitted on the petitioner's behalf showed marks on his body as a result of police beating. There was also before the adjudicator a letter purporting to be from the petitioner's mother together with a translation. Further, before the adjudicator there was presented a body of documentary material bearing essentially on the question of continuing human rights abuses in Pakistan. The essence of the adjudicator's determination was that he did not find the petitioner's account of what had happened to him to be credible in the light inter alia of what he regarded as material inconsistencies and contradictions between it and the documentary material apparently lodged in support and having regard to what he regarded as the lack of detail and coherence in relation to part of the claimed history to the effect that three of the petitioner's acquaintances had been killed and two arrested. In addition, the adjudicator formed the view that he could not rely on the documentary material itself.

For the petitioner, in a careful presentation by Mr Bovey, there were essentially two attacks on the way the adjudicator had reached his decision. It was submitted (and not in the event disputed) that the court's proper approach to a decision such as that of the adjudicator was that most recently set out, under reference to certain well known authority, in the unreported decision of the Lord Ordinary dated 24 November 1997 in Jaswinder Singh v Secretary of State for the Home Department. Reference was also made to the U.N.H.C.R. Handbook on Procedures and Criteria for Determining Refugee Status published in 1979 by the Office of the United Nations High Commission for Refugees which Lord Woolf M.R. had referred to in R. v Secretary of State for the Home Department &c ex parte Robinson 1997 4 All.E.R. 210 at page 215 as being "particularly helpful as a guide to what is the international understanding of the Convention obligations as worked out in practice". I was referred in particular to paragraphs 195 to 204, and perhaps, so far as the petitioner was concerned, most strongly to paragraph 203 to the effect that:

Against that general background counsel submitted first that although the adjudicator had accepted that the photographs lodged disclosed marks above the petitioner's armpits, scars on a limb and a small dark mark on his back (on page 8 of his determination) and had indicated (at page 3) "The issue which had to be decided was how the marks on the appellant's body had been caused" and again on page 7 that "I would have to consider how the marks shown in the photographs were received" he had failed to address himself to that key, identified issue - relevant to the central question of whether the story given by the petitioner in his interview could be accepted. The adjudicator had (essentially as a result, as I understood it) failed in his duty to give adequate reasons. These failures, it was argued, amounted to errors of law such as to render his decision reducible by the Court. Reference was made to a decision of the Immigration Appeal Tribunal in Secretary of State for Home Department v Chiver 1997 I.N.L.R. 212.

Secondly, it was argued the adjudicator had failed as part of his assessment of credibility to tackle the question of the degree to which the general human rights material relative to Pakistan was consistent with the account given by the petitioner; that indeed it seemed he had shut his mind to the possibility of there being consistency in this respect; and (as a result; as I understood it) had failed to give coherent reasons as to how he came to reject the core of the petitioner's case. Reference in particular was made to an answer in the petitioner's interview to question No 31 "What did police do to you ... while you were detained?" to the effect "I was beaten up badly first time. I have got marks on my body where the police used to tie me up on wooden cross and beat me. They used to pull my arms apart on the cross and I was beaten". The previous answer had suggested that the first three occasions of arrest were in 1995. There was it was submitted independent material contained in some of the reports lodged apparently consistent with the complaints made by the petitioner. In particular it was said these reports not merely referred to the degree of brutality and general approach of the police in Pakistan but disclosed at points similarities between some of the details contained in the reports and the complaints which the petitioner had made. In particular in an Amnesty International Report of June 1997 headed "Pakistan - Time to take Human Rights Seriously" reference was made to page 15 (page C91 of the productions) where a former detainee in Pakistan described how:

and to a passage where it was said:

Further reference was made to a U.S. Department of State Report released in January 1997 at page 5 (C19 of process) and to a passage where it was said that common torture methods included "beating, burning with cigarettes, whipping the soles of the feet, sexual assault, prolonged isolation, electrical shock, denial of food or sleep, hanging upside down, forced spreading of the legs and public humiliation". Reference was further made to the Report of the Economic and Social Council of the United Nations apparently dated October 1996 and in particular to page 12 thereof (C56 of the productions) where reference was made to a case where a detainee in a Lahore Police Station had been stripped naked, his hands and feet had been tied and he had been hung by them from bamboo canes after which he was beaten and whipped. More general references to the behaviour of the police were to be found in these documents at pages C77 and C57 and 58. Despite the adjudicator recording that, in the context of discussing the petitioner's history, the representative of the petitioner had emphasised that the report of June 1987 from Amnesty International showed that the police in Pakistan were "a law unto themselves" and that he recorded that he had been referred also to "other documentary evidence as to the general situation there", all the adjudicator had done when expressing his decision was to say (on page 8):

Thereafter, proceeding under reference to the case of Kingori 1994 Imm.A.R. 539 he indicated that he did not consider that he was required to make findings of fact "as to the general situation in Pakistan".

In relation to the decision of the Immigration Appeal Tribunal not to grant leave to appeal counsel for the petitioner's primary position was that the decisions of the adjudicator and of the Immigration Appeal Tribunal stood or fell together for broadly the same reasons. In particular the same errors of law were at least sufficiently mirrored in certain of the grounds of appeal (in particular grounds 18 and 21, and perhaps to a lesser extent ground 16). Counsel submitted that he therefore did not have to rely, in this case, on that line of authority which suggested that obvious points not taken in grounds of appeal should nevertheless be considered by the Immigration Appeal Tribunal. Reference was made to the case of Robinson above and to an unreported case of Lord Penrose in Parminder Singh v Secretary of State for the Home Department 10 July 1998. He did however argue that if the claimed failings of the adjudicator could not be described as errors of law the criticisms were nevertheless such as to suggest to any reasonable chairman of the Immigration Appeal Tribunal that there were at least arguable grounds for interfering with the adjudicator's findings on appeal. Counsel stressed, as was underlined by the Lord Ordinary in Jaswinder Singh above, that the jurisdiction of the Immigration Appeal Tribunal was not restricted to errors of law. Reference was made to section 20 of the Immigration Act 1971, to Regulations 23 and 27 of the Asylum Appeals (Procedure) Rules 1996, R. v Immigration Appeal Tribunal ex parte Balendran 1998 Imm.A.R. 162 and by contrast to rule 14(2) of the Immigration Appeals Procedure Rules 1984 which did not apply. (In the event counsel for the respondent did not dispute this proposition and referred, in addition, to rule 13 of the 1996 Rules.) Reference was also made to certain examples of cases (all unreported) in which the Immigration Appeal Tribunal had found fault with the way in which adjudicators had reached conclusions on the evidence before them, namely the cases of Fiaz Rasool (May 1995), Tunde Ajayiola Taiwo (28 March 1995), Henri Nomelagne (June 1995) and Ernesto Mendes (June 1995)).

On this last matter counsel for the respondent accepted that if the adjudicator had failed in the ways submitted on behalf of the petitioner his errors could be regarded as errors of law susceptible to judicial review. Nor did he dispute that the complaints made were at least sufficiently focused in the grounds of appeal before the Immigration Appeal Tribunal. To that extent it seemed to me that he agreed that in this case the decisions of the adjudicator and that of the Chairman of the Immigration Appeal Tribunal essentially stood or fell together, as argued on behalf of the petitioner. He did not address the Court in reply on the four cases last mentioned - cases which in any event it seemed to me were decisions particular to their own facts.

As to the particular grounds advanced counsel for the respondent did not dispute that Jaswinder Singh could be regarded as a convenient source for the proper approach of the Court. Nor did he dispute that the U.N.H.C.R. Handbook could be looked to for reasonable guidance. He emphasised, however, the references therein to the burden of proof being on the person submitting a claim and to paragraph 204 which provides that:

As to the photographs, the adjudicator did not fail to answer the question he posed. On a proper reading he was plainly saying that there was insufficient evidence before him to make any link between the petitioner's claims and the injuries disclosed in the photographs - all against a background in which the only medical evidence placed before him was a letter dated 12 November 1995 from Hussain Hospital, Kotli and a letter from Dr Rajput on which, at page 6, the adjudicator specifically commented:

It was also argued that the adjudicator took account and was entitled to take account of the fact that in his interview the applicant himself did not claim that the injuries shown on the photographs were the result of his claimed beating (rather this apparently being represented on his behalf by his agent).

As regards the second matter, although counsel did not dispute the comments made by counsel for the petitioner on the passages from the human rights material to which he referred, this material, which did not relate specifically to the petitioner himself could not assist him if the adjudicator decided for a number of reasons relative to the evidence specific to him that he could not accept the petitioner's account of what had happened to him. Reference was made to the case of Kingori.

Having given careful consideration to the submissions of the petitioner I have come to the view that although they have a certain superficial attraction they are not, on a proper and fair reading of the whole determination of the adjudicator, well founded.

At the outset I should perhaps record that it was not argued in the course of the debate before me that the adjudicator was not entitled on the matters to which he did refer in some detail, to reach an adverse view of the petitioner's credibility or as to the reliability of documents founded upon or that his approach to these matters subject to the two specific matters of complaint was flawed.

In relation to the photographs the adjudicator's simple position is that:

It is difficult to read this (as the petitioner argued) as an apparent failure to answer the question he had posed himself on two occasions (that is, how the marks were received). Rather, it seems to me to be reasonably clear that the adjudicator could not, having asked himself the question, be satisfied in the light of the evidence before him that he could make any findings as to how the marks were or could have been caused given the absence of any assistance from the medical reports which had been lodged (and to which specific reference was earlier made by the adjudicator) and in the light, no doubt, as was obvious, of the absence of any independent evidence as to how old these marks were or how they could have been caused. It seems to me that the adjudicator did ask himself the question he did, notwithstanding the adverse view he had reached for other reasons as to the credibility of the petitioner, because he no doubt realised that the answer could potentially assist the applicant in his consideration of whether, as the petitioner claimed, he had been beaten. I did not find Chiver to be of assistance. Equally I do not agree with counsel for the respondent that the adjudicator made anything of the petitioner's failure to claim what the photos showed.

On the question of the human rights material it seems to me, in the first place by way of background to be reasonably clear that the adjudicator, at the end of his decision in the passage referred to on behalf of the petitioner and where, having referred to the case of Kingori, he indicated that he did not consider that he was required to make findings of fact as to the general situation in Pakistan, was saying no more than that he did not need to consider the second general matter before him on which the petitioner required to satisfy him, namely not only that certain things had happened to him in the past but also that in the light of that and the continuing political situation in Pakistan he had a well founded fear of the relevant kind. That does not of itself in any sense answer the petitioner's argument (indeed I understood Mr Bovey to accept that this was probably a fair reading of the last part of the decision), but it is important to stress that nowhere does the adjudicator expressly state that because he has formed an adverse view of the appellant's credibility for other reasons he has closed his mind in that context to consideration of the human rights material. Secondly, by way of background, it has, I think, to be said that none of the specific passages or detailed comments said to show similarities with the petitioner's history could properly be said to disclose the same specific treatment, namely being tied up on a wooden cross with arms pulled apart, and indeed nor was this claimed by counsel for the petitioner. Thirdly, the adjudicator does not record having had the detail to which reference was made specifically raised with him. Fourth, and perhaps most important, both counsel, so far as I understood it, agreed that I would be entitled reasonably to assume that an experienced adjudicator such as the adjudicator in this case would have been well aware of the general nature of the recorded complaints levied against the police in Pakistan on which the materials apparently placed before him were all agreed. I did not find Kingori to be of particular assistance.

Against that background the real question posed by the petitioner's second ground of appeal is whether the adjudicator needed, having regard to the way in which he found he could not be satisfied as to the petitioner's account, expressly to refer in that context to the human rights material. It seems to me that whereas, plainly, it would be different if the adjudicator had appeared to proceed on a basis on which he appeared not to accept or doubted that beatings of the type referred to by the petitioner could happen in Pakistan, I do not read that as having formed any part of his reasoning. Rather, he rejected the account of the petitioner for other reasons personal to him and relative to the evidence said to bear directly on what had happened to him. In these circumstances I do not consider it was necessary for him to refer in that context to evidence which on the face of it would not have altered the reasoning by which he proceeded. There is nothing to suggest that he, in any sense, closed his mind to the possibility that there was or might be consistency between the petitioner's account and the general evidence of what could happen. Instead I note that at page 7 the adjudicator indicated:

In short, it seems to me that the petitioner is asking too much to require the adjudicator, in what otherwise appears to be a very detailed decision, to refer to all evidence which could possibly have had a bearing on his assessment of the petitioner's credibility provided he gives clear reasons for the views which he reached. That does not mean that all other evidence has been forgotten or ignored, in particular, evidence which would not on the face of it have affected the reasoning by which his conclusions on credibility were reached.

For these reasons I shall dismiss the petition.