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You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Singh, Re Application for Judicial Review [2000] ScotCS 57 (7 March 2000) URL: http://www.bailii.org/scot/cases/ScotCS/2000/57.html Cite as: [2000] ScotCS 57 |
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OUTER HOUSE, COURT OF SESSION |
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P9/14A/97
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OPINION OF LORD NIMMO SMITH in the petition of MAJOR SINGH Petitioner: for JUDICIAL REVIEW OF A DECISION OF A SPECIAL ADJUDICATOR AND A CHAIRMAN OF THE IMMIGRATION APPEAL TRIBUNAL
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Petitioner: Sutherland; Lindays, W.S (For Gray & Co, Glasgow)
Respondent: Murphy; R Henderson
7 March 2000
The petitioner is a citizen of India. The respondent is the Secretary of State for the Home Department ("the Secretary of State") and is responsible for the administration and enforcement of immigration legislation throughout the United Kingdom. Answers have been lodged on behalf of the respondent. The petition was served on the Special Adjudicator and the Chairman of the Immigration Appeal Tribunal ("the IAT") whose decisions are the subject of this application, but no Answers have been lodged on behalf of either of them.
The petitioner entered the United Kingdom illegally in October 1994. On 10 November 1994 he applied for political asylum. In June 1996 the Secretary of State made a decision to refuse the petitioner's application for political asylum. On 16 August 1996 the petitioner was served with removal directions. The petitioner appealed against these directions and an appeal hearing took place before the Special Adjudicator on 21 November 1996. By a determination dated 23 December 1996 and sent by post on 6 January 1997 the Special Adjudicator dismissed the appeal. The petitioner sought leave to appeal to the IAT against this determination. By a determination dated 23 January 1997 and notified on 28 January 1997 the Chairman of the IAT refused leave to appeal. Thereafter an immigration officer made a decision to issue removal directions dated 10 February 1997, requiring that the petitioner be removed from the United Kingdom on 15 February 1997. These directions were served on the petitioner on 13 February 1997 and he was taken into detention on that date. The present application was lodged on 17 February 1997. By interlocutor dated 18 February 1997 the petitioner was granted interim liberation. Answers for the Secretary of State were lodged on 5 January 1998. I am not aware why more rapid progress was not made in the meantime. The Petition and Answers came before me for a first hearing on 8 January 1998 but I discharged the diet so that further enquiries could be made. I am not aware of the outcome of those enquiries. No adjustment was made to the Petition or the Answers. The matter came before me again for a first hearing on 17 and 18 February 2000. No explanation was given for all this delay. It cannot be regarded as satisfactory that the first hearing should finally have taken place more than three years after the determination of the Chairman of the IAT and indeed almost three years after the lodging of this application. There were indications that there have in the meantime been material changes in the petitioner's circumstances, but in the context of an application for judicial review there is no scope for me to take account of them: I am necessarily restricted to the information which was before the Special Adjudicator and the Chairman of the IAT.
The Asylum and Immigration Appeals Act 1993 provides by section 1 that the expression "claim for asylum" means a claim made by a person that it would be contrary to the United Kingdom's obligations under the Convention relating to the Status of Refugees done at Geneva on 28 July 1951 and the Protocol to that Convention for him to be removed from, or required to leave, the United Kingdom. By Article 1A(2) of the Convention the term "refugee" is defined as applying to inter alios any person who, owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country. Article 33(1) of the Convention provides that no contracting State shall expel or return ("refouler") a refugee in any manner whatsoever to the frontiers of territories where his life or freedom would be threatened on account of his race, religion, nationality, membership of a particular social group or political opinion. These provisions are reflected in provisions of the Immigration Act 1971, the 1993 Act, the Statement of Changes in Immigration Rules (HC 395) laid before Parliament on 23 May 1994 and the Asylum Appeals (Procedure) Rules 1996 (SI 1996/2070), to which reference was made in the course of the hearing but which I need not repeat here. I need only refer to section 8(4) of the 1993 Act which provides, in circumstances such as the present, for an appeal to a Special Adjudicator against directions for removal from the United Kingdom on the grounds that the appellant's removal in pursuance of the directions would be contrary to the United Kingdom's obligations under the Convention. By Rule 2(3) of the 1996 Rules an appeal is determined when written notice is sent of the decision whether or not the appeal should be allowed, and every determination is to consist of a concise statement of (i) the decision on the substantial issues raised, (ii) any findings of fact material to the decision and (iii) the reasons for the decision. Rule 13 provides inter alia that an appeal to the IAT may be brought only with the leave of the IAT, that an application for leave shall be made by serving upon the IAT the appropriate form accompanied by the original or a copy of the Special Adjudicator's determination together with all the grounds relied on, and that, when an application for leave has been decided, the IAT shall forthwith send to the parties to the appeal a notice recording its decision on the application for leave and, where leave to appeal is refused, the reasons for the refusal.
The duties of the Special Adjudicator and the IAT to give reasons for their determinations fall to be considered in light of Wordie Property Co Ltd v Secretary of State for Scotland 1984 SLT 345 per Lord President Emslie at p. 348:
"The decision must, in short, leave the informed reader and the Court in no real and substantial doubt as to what the reasons for it were and what were the material considerations which were taken into account in reaching it."
In the recently reported case of Singh v Secretary of State for the Home Department 2000 SLT 243 the First Division observed that the basic duty on statutory tribunals to give reasons would be satisfied if the decision maker's reasons came within the ambit of Wordie Property Co Ltd v Secretary of State for Scotland; the extent and adequacy of the reasons would vary with the circumstances, which would depend on the nature of the tribunal, its rules of operation, the scope of issues raised, the amount of evidential material involved and whether the decision was judicial or administrative. The Court in that case approved a dictum of Lord Penrose in Asif v Secretary of State for the Home Department, 12 January 1999, unreported:
"Nothing could be more destructive of the efficient disposal of immigration appeals than the notion that the Adjudicator and the Tribunal are under an obligation to carry through a mechanical process of narration of the evidence, analysis of it into classes, and explanation factor by factor of the relevance or irrelevance, credibility and reliability or otherwise of it."
Because of the criticisms which were directed against it, I require to quote the Special Adjudicator's determination in the present case in full. For convenience I have added paragraph numbers to it. It is in these terms:
"[1] The appellant was born on 21 March 1965 and is of Indian nationality. According to the appellant, he left India in August 1994 and travelled by air via the United Arab Emirates to the Czech Republic where he remained for approximately 9 weeks. From there he entered the United Kingdom clandestinely by lorry in October 1994. He made an application for asylum on 10 November 1994. This application was refused by the Secretary of State in a letter of June 1996. On 16 August 1996 the appellant was served with directions for his removal from the United Kingdom to India. It is against these directions which this appeal has been brought.
[2] At the hearing before me, the appellant was represented by Mr R Singh of IAS [Immigration Advisory Service] and the respondent by Mrs M McCloy, Home Office Presenting Officer.
[3] I had before me Form PF1 lodged on behalf of the respondents together with its annexes and attachments, including the Home Office Refusal letter and the appellant's notice of appeal. I also had before me 2 further bundles lodged on behalf of the respondent, dated 12 and 19 November 1996, comprising annexes 1-4 of the documents lodged on behalf of the respondents. Mrs McCloy pointed out that annex 4 was a self-completion questionnaire dated 3 April 1995. At one stage this had gone astray and the appellant had therefore completed a second self-completion questionnaire lodged with form PF1. Mr Singh on behalf of the appellant said that he intended to rely on the standard IAS bundle on India, which was held in the library of the hearing centre.
[4] No oral evidence was led at the hearing.
[5] Mrs McCloy made a submission on behalf of the respondents in which she relied on the Home Office refusal letter. She referred also to the US State Department report and to the Home Office Assessment on India, together with the determinations of the IAT in Joga Singh (12705), Amritpal Singh (13260) and Charanjit Singh (13375). She pointed out that the US State Department report for 1995 was not before the Tribunal in Charanjit Singh and that the US State Department report was more neutral and dispassionate than the evidence before the Tribunal in that appeal. It contained a closer analysis of the situation and was not written by persons involved in political causes as was the evidence in Charanjit Singh. The appellant did claim to be a supporter of the Khalistan Liberation Front and a member of the Sikh Student Federation. At interview the appellant said he joined the latter organisation in 1989 but the documents at annex E of the main Home Office bundle said that he joined in 1990. The letter of 23 March 1996 at Annex E was written in English, although the appellant claimed to have needed an interpreter for the purposes of his appeal. If the appellant was part of any organisation it was at a very low level. He said at interview that he had not attended rallies or demonstrations but just put up posters and gave food to members of the party. He claimed to have been detained once for four hours on suspicion of hiding guns and sheltering terrorists but he said he was not ill-treated and said he was never tried or sentenced. His family were not harassed or detained. AISSF was not a banned organisation but a mainstream political party. It did contain the Bittu Faction which was banned because of involvement in terrorism. If the appellant was part of this faction the police might want to question him in their role of maintaining law and order. The appellant did not leave India until nearly a year after he claimed to have been detained. It was unlikely that the police had any interest in him, if they did he would have a fair trial. His passport was issued in 1993 and he said he had waited one year for his passport to be issued which suggested that he had applied for it in July 1992. This suggested that he intended to leave India before his alleged difficulty started. At interview he said he had no trouble leaving India. This was despite the evidence of the US State Department report which said that the government of India might deny a passport or prevent travel by those advocating Sikh Independence. The appellant claimed to have spent 10 weeks in the Czech Republic but had made no application for asylum there. His actions were not consistent with someone fleeing for his life as in Manga Singh (11175). If he was concerned that he could not remain in Punjab he could move elsewhere in India, as in Mohan Singh (9151) and Dupovac (11846).
[6] On behalf of the appellant Mr Singh submitted that the appellant had a serious possibility of persecution for a Convention reason. His claim was based on his political opinion as a member of AISSF and a supporter of KLF. In Charanjit Singh the Tribunal had heard expert witnesses and found them to be credible. The witnesses had dealt with all sides of the conflict in Punjab. The appellant had been detained in 1993. The situation in Punjab in 1993 was well documented in the Amnesty International reports lodged as part of the IAS bundle. The US State Department report for 1994 stated that the police were engaged in a systematic campaign to liquidate supporters of an independent Khalistan. A large number of those suspected of political involvement were detained and torture was said in the US State Department report to be common throughout India. On the issue of internal flight Mr Singh referred to the report by Amnesty International in 1995 entitled "Punjab Police Beyond the Bounds of the Law" and also to the evidence of Patricia Gossman in Charanjit Singh. The appellant's delay in claiming asylum was not significant. Within 10 days of arriving in the United Kingdom he claimed asylum. According to the Home Office statistics for 1992, 5.3% of applications for asylum made at the port of entry were accepted and 4.1% of in country applications were accepted. In 1993 the respective figures were 4.5% and 8.3%. The point at which an application for asylum was made should not affect the assessment of the claim. There had been 25,000 to 60,000 estimated deaths in the conflict in Punjab. According to the evidence in Charanjit Singh the police were largely brutalised and corrupted. The argument was not that the appellant would not receive a fair trial in India but that his fear of persecution was by the police if he was returned to India. His membership of AISSF was not disputed by the Secretary of State and, accordingly, no evidence was led from the appellant on this point. There were no significant discrepancies in the appellant's evidence and on the lower standard of proof, the appeal should be allowed.
[7] For the appellant to succeed he must show that owing to a well founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, he is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country. For the appellant's fear of persecution to be well-founded means that he must demonstrate only a reasonable degree of likelihood of being persecuted for a Convention reason if returned to his own country in accordance with Sivakumaran [1988] Imm AR 147. In terms of Kaja [1995] Imm AR 1, this standard of proof applies also to the assessment of accounts of past events and in terms of Sandralingham [1996] Imm AR 97, the facts and circumstances which may be taken into account in determining this appeal are not restricted to those arising prior to the decision appealed against. In addition to having regard to these judicial decisions, I have also had regard to the determinations of the Tribunal referred to me by Mrs McCloy.
[8] I am required to assess the credibility of the appellant's evidence. I am prepared to accept that certain parts of his evidence are credible but I am not prepared to accept his evidence in its entirety. The appellant claimed to be a member of AISSF and produced a membership card supporting this. The appellant said he joined the Federation in 1989 but his membership card states that he joined in 1990. His membership card records his date of birth as 2.3.65 whereas in fact, according to the appellant, it should be 21.3.65. I do not consider that it is necessary to attach a great deal of weight to these inconsistencies and I am satisfied as to the appellant's credibility in relation to his membership of AISSF. The appellant claimed to have been detained once by the police in September 1993 and held for about 4 hours. He said he was suspected of hiding guns and sheltering terrorists but that the head of his village arranged his release by guaranteeing that the appellant was not involved. The appellant's account of his detention is plausible and has been maintained consistently by him. I therefore accept the credibility of his evidence on this point. He stated that he was not ill-treated in detention and that he was never detained again. He also stated that he has never been tried or convicted of any offence in India. Again, I accept his evidence on these points. The appellant described his involvement with the AISSF as putting up posters and giving food to the members of the party. He said he held no post or office in the party and I accept his evidence on these points also. At his interview in March 1995 the appellant claimed to have left India in August 1994, nearly a year after his detention. He has given no explanation of why he waited nearly a year to leave India. He has acknowledged that he already has a passport in his possession and that he did not require a visa. He said his family paid an agent in order to arrange and fund his journey. He experienced no difficulty from the authorities in leaving India. Nevertheless, he claims that he will be killed or harassed by the police if he returns to India. In my view the appellant's unexplained delay between his detention and his leaving India is inconsistent with his having a genuine fear of persecution. I do not accept as credible his account of what he fears should he return to India. I see no reason arising from his evidence for him to hold such a fear. The appellant had, on his own account, been detained once by the police and released after they were satisfied that he was not involved in illegal activities. He was not ill-treated and he does not appear to have been further detained or harassed. The appellant has failed to show that the has a genuine fear of persecution for a Convention reason were he to return to India.
[9] The appellant has submitted a letter dated 23 March 1996 purporting to be from AISSF and stating:
'He has been our active member for the last 6 years. He has been declared proclaimed by the Govt of India being a member of our organisation.'
Mrs McCloy pointed out that this letter had been submitted in English although the appellant requires an interpreter. Having regard to the date of this letter, it seems to me that it has been submitted only for the purposes of the asylum claim. I am prepared to accord it very little weight. The claim in the letter that the appellant has been 'declared proclaimed' is not supported by any other evidence and indeed on the basis of the appellant's evidence, there appeared to be no grounds for any action against him by the authorities. The Secretary of State records in the refusal letter of June 1996 that AISSF is not itself a proscribed organisation. I therefore do not find the claim in this letter that the appellant has been 'declared proclaimed', whatever this might mean, as being credible.
[10] Although I am not satisfied that the appellant has a genuine fear of persecution, I propose to address the situation in Punjab to which both parties referred me. Mr Singh referred in particular to the situation in Punjab as it was in 1993. However, I must take into account not only the situation as it was in 1993 but also the situation as it is now. I have given consideration to all the evidence before me, including the US State Department report for 1995 and the evidence recorded in the Tribunal's determination in Charanjit Singh. The US State Department report records:
'In Punjab, the insurgent violence of past years has largely disappeared and there is visible progress in correcting patterns of abuse by police. The assassination of the Punjab Chief Minister at the end of August, an isolated exception to restored civil peace in the state resulted in neither a widespread crackdown nor a breakdown of order. The National Human Rights Commission continues to play a useful role in addressing patterns of abuse, as well as specific abuses and is consolidating an attitudinal shift toward acknowledgement of human rights problems as it seeks to create a 'human rights culture' through educational programmes'.
The report also records:
'In Punjab, the pattern of disappearance as prevalent a few years ago appears to be much diminished. Although there is no reason to believe that missing or faulty arrest records are less a problem in Punjab than in the rest of India, there were only a few records of disappearances or unacknowledged arrest associated with suspected militant activity.'
The report also records that although acts of violence in other Indian states in 1995 were attributed to Sikh militants, particularly in Jammu, killings of Sikh militants by police in armed encounters appeared to be virtually at an end.
[11] I note Mrs McCloy's comment that this report was published after the Tribunal gave its determination in Charanjit Singh. I note also her comments about the sources of the evidence before the Tribunal in Charanjit Singh. Both of these submissions appear to me to be well-founded. Having regard to the material before me on the situation in Punjab, I accept that abuses of human rights by the police do take place but I am also satisfied that these incidents are much less widespread now than they are reputed to have been a few years ago and that the level of violence in Punjab has diminished considerably by comparison with the early 1990s. Given my assessment of the appellant's credibility, my findings as to his previous difficulty with the police, as to his low-level of involvement with AISSF and as to his unexplained delay in leaving India, I am not satisfied that the appellant would be of any interest to the authorities in India or in Punjab were he to return. As I have already stated, I am not satisfied that the appellant has a genuine fear of persecution for a Convention reason and, in addition, he has failed to satisfy me that there is a reasonable degree of likelihood of his being persecuted for a Convention reason if he returned to India.
[12] The parties also addressed me on the question of internal flight, as I am not satisfied that the appellant has a well-founded fear of persecution it is unnecessary for me to make any findings in respect of this. However, I consider Mrs McCloy's submissions on this point to be well-founded, having regard to the determination of the Tribunal to which she referred. The evidence from Amnesty International referred to me by Mr Singh did not satisfy me that a person with the appellant's low level of involvement in political activity would be in any danger from the Punjab police in any other part of India. Although Amnesty International records that in the past the Punjab police have pursued suspects in other Indian states, these claims appear to me to relate to isolated action against prominent individuals. Furthermore, the evidence recorded in Charanjit Singh from Patricia Gossman, taken at face value, does not suggest to me that even those who are of interest to the Punjab police are in danger from them outside the state of Punjab.
[13] The appeal is dismissed."
The application for leave to appeal against this determination has not been lodged as a production, but its terms can be discovered from the determination of the Chairman of the IAT refusing leave to appeal. His determination was in these terms:
"The Applicant, a citizen of India has applied to the Tribunal for leave to appeal against the determination of an Adjudicator (Mr M E Deans) dismissing his appeal against the giving of removal directions as an illegal entrant. The applicant claimed asylum.
The grounds submitted in support of the application are:
'I have a well founded fear of persecution for a Convention reason if I return to India. Further grounds will be submitted by IAS Tribunal Unit.'
By letter of 9th January the applicant's representative indicated that no further grounds would be furnished.
The applicant did not give oral evidence. The Adjudicator's decision is based on an assessment of the evidence before him and is supported by it. There is nothing in the grounds of appeal or otherwise justifying the grounds of leave to appeal.
Leave to appeal is refused."
Although the Petition seeks inter alia reduction of both the determination of the Special Adjudicator and the determination of the Chairman of the IAT, counsel for the petitioner restricted his submissions at the hearing to the latter. His motion was that I should reduce the determination of the Chairman of the IAT and remit to the IAT to proceed as accords. In support of this motion counsel moved me to hold that it was Wednesbury unreasonable of the Chairman of the IAT to have refused leave to appeal. There was discussion during the course of the hearing about the duties of the Chairman of the IAT in considering whether to grant leave to appeal. In R. v Secretary of State for the Home Department, Ex parte Robinson [1998] QB 929 the Court of Appeal held inter alia that although in seeking leave to appeal the claimant was required to state the grounds of his appeal, the appellate authorities were neither limited by the arguments actually advanced nor required to engage in a search for new grounds and that, since they were obliged to ensure that the applicant's removal would not contravene the United Kingdom's obligations under the Convention and Protocol, where there was a readily discernible and obvious point in his favour, which had not been taken on his behalf, they, and the High Court exercising its supervisory jurisdiction by way of judicial review, should nevertheless apply it. This approach has been followed in Scotland: see, for example, the decision of the Extra Division in Parminder Singh v Secretary of State for the Home Department, 26 October 1999, unreported. It is therefore necessary to consider whether it was unreasonable to refuse leave to appeal against the Special Adjudicator's determination having regard both to the grounds of appeal and to the question whether there was a readily discernible and obvious point in the petitioner's favour which had not been taken on his behalf.
In order to bring himself within the provisions of Article 1A(2) of the Convention an applicant for political asylum must establish that he has a well-founded fear of persecution. There are two aspects to this. Firstly, he must establish that he has a subjective fear of persecution. Secondly, he must establish that this fear is objectively well-founded. These two aspects are clearly recognised in the leading case of R. v Secretary of State for the Home Department, Ex parte Sivakumaram [1988] AC 958, in which the House of Lords held that whether an applicant for refugee status had a "well-founded fear" of persecution within the meaning of Article 1A(2) was to be determined objectively in the light of the circumstances existing in the country of his nationality and that he had to demonstrate a reasonable degree of likelihood that he would be persecuted for one of the reasons referred to in Article 1A(2) if he were returned to that country. Reference may also be made to Macdonald's Immigration Law and Practice, 4th Edition, para. 12.17, where the need to establish a genuine fear of persecution as a subjective element is discussed. The Special Adjudicator clearly recognised the need to make decisions on each of these two aspects. He decided, firstly, at para. [8] that the petitioner had not established that he had a genuine fear of persecution. He went on to decide, secondly, at para. [12] that even if the petitioner had established that he had a fear of persecution, that fear was not well-founded.
It is averred in the petition that the Special Adjudicator applied the wrong test when making his determination in holding that the petitioner had not shown that he had a genuine fear of persecution. It is also averred that it is not apparent what the Special Adjudicator meant by so holding, because this could mean either that the petitioner had no basis for a real fear which existed or alternatively that he did not have a fear at all and that it was a false claim to be fearful. It is suggested that the Special Adjudicator had thereby failed to give proper and intelligible reasons for his decision. Although counsel for the petitioner advanced submissions along these lines, he came to recognise, as I understood it, that the Special Adjudicator had indeed identified the correct issues. This led him to submit that in holding that the petitioner had not established a genuine fear of persecution the Special Adjudicator had not directed himself to all relevant material. In particular, counsel relied on information which is set out in the determination of the IAT in Charanjit Singh v Secretary of State for the Home Department, notified on 10 May 1996. In that case the IAT accepted inter alia evidence given by Dr Jasdev Singh Rai about categories of people who would be at risk of being placed on the "police list" as suspected terrorists/militants and therefore subject to arbitrary arrest, detention, and ill-treatment ultimately resulting in death or disappearance. This evidence contributed to the IAT's finding the appellant in that case to be credible in his claim that the police were looking for him and they would still be looking for him were he to return to India and accordingly that he had a subjective fear of return for a Convention reason. In the present case the Special Adjudicator was referred to the determination in Charanjit Singh v Secretary of State for the Home Department. Counsel submitted, however, that he had failed to take account of the evidence of Dr Rai, as set out in the determination in that case, in deciding whether the present petitioner had a genuine fear of persecution.
The question of the standard of proof to be applied in resolving issues such as this has recently been considered by the Court of Appeal in Karanakaran v Secretary of State of the Home Department, 25 January 2000, unreported. In Kaja v Secretary of State for the Home Department [1995] Imm AR 1 it was held that when assessing future risk decision-makers may have to take into account a whole bundle of disparate pieces of evidence. This decision had been generally interpreted as meaning that decision-makers were at liberty to substitute a lower standard of proof than that conventionally used in civil litigation when judges make findings about past and present facts. The Court of Appeal in Karanakaran held that the approach in Kaja was the approach which should be adopted at each of the stages of the assessment process. Although the Court were principally concerned with the standard of proof in deciding the question, derived from Sivakumaran's case, whether there was any reasonable degree of likelihood that the applicant would be persecuted for a Convention reason if returned to his own country, the approach is equally applicable to the consideration of such matters of fact as may have a bearing on the question whether the applicant has a genuine fear of persecution. Approaching the question in this way, I am unable to accept that the Special Adjudicator can be said to have misdirected himself or to have failed to give adequate reasons for holding that the petitioner had failed to show that he had a genuine fear of persecution for a Convention reason were he to return to India. Counsel for the petitioner did not dispute that in paragraph [7] the Special Adjudicator had correctly identified the standard of proof. At the end of that paragraph the Special Adjudicator stated that in addition to having regard to the judicial decisions referred to, he had also had regard to the determinations of the IAT referred to by the Secretary of State's representative. These included Charanjit Singh, as is recorded in paragraphs [5] and [6] of the determination. I can see no basis for thinking that the Special Adjudicator left out of account any relevant material, or for that matter took into account any irrelevant material, in deciding what he characterised as a question of the petitioner's credibility. Such a question was pre-eminently one for him to decide on the basis of the material before him, and I can see no ground, obvious or otherwise, on which it could be argued with any degree of force that this was a finding which he should not have made.
The decision against the petitioner on the point which I have just discussed was fatal to his application. As I have explained, however, the Special Adjudicator went on to consider whether, if the petitioner had established that he had a genuine fear of persecution, that fear would have been well-founded. His approach to the material before him which led him to his conclusion on this matter is criticised in the petition and this criticism was developed in the submissions of counsel for the petitioner. As I have already mentioned, before the Special Adjudicator reference was made to the material which was available in the case of Charanjit Singh, in particular the evidence of Dr Rai. Before the Special Adjudicator reference was also made to the United States State Department report for 1995. This was more recent in date than the report which was referred to in the case of Charanjit Singh. It was submitted that it was not clear from the Special Adjudicator's determination what weight he gave to the information which he had noted was being relied upon by the petitioner before deciding that the petitioner had failed to satisfy him that there was a reasonable degree of likelihood of his being persecuted for a Convention reason if he returned to India. Having regard to the authorities to which I have previously referred, I am not satisfied that there is any substance to this criticism. All questions of fact were for the Special Adjudicator to decide, and in the course of making his decision he required to evaluate the material before him and to decide what weight to give to any particular piece of information. While he was entitled to have regard to the material which had been relied on in Charanjit Singh, he was not bound to accept it, and in particular was not bound to accept it simply because it had been accepted in that case. He was entitled, and indeed since it was one of the main issues before him, bound to weigh this material against information coming from other sources and in particular the United States State Department report. In my opinion he cannot be criticised for reaching the view he did about this material, for the reasons given by him. He did not decide, as was suggested, that by 1995 there were no longer any human rights abuses in the Punjab. What he decided was that the situation in the Punjab had so far improved that there was no reasonable likelihood of persecution of a person in the position of the petitioner. In considering this question he appears to me to have adopted the approach to evidence laid down in Kaja and Karanakaran.
These are the main points which were made before me in support of the submission that it was Wednesbury unreasonable of the Chairman of the IAT to refuse leave to appeal. Some subsidiary points were made, in particular with regard to the letter stating that the petitioner was "declared proclaimed" and his opportunity for internal flight, but these matters were fully discussed in the determination of the Special Adjudicator and the only comment that requires to be made about them is that it lay within his province to decide what to make of them. Given the approach of the Special Adjudicator to the main questions whether the petitioner had established a genuine fear of persecution and, if so, whether that fear was well-founded, I can see no basis for holding that the Chairman of the IAT was Wednesbury unreasonable in holding that the Special Adjudicator's decision was based on an assessment of the evidence before him and was supported by it and that there was nothing in the grounds of appeal or otherwise justifying the grounds of leave to appeal.
For these reasons I shall, as moved by counsel for the Secretary of State, sustain the third plea-in-law for the respondents so far as directed to the determination of the Chairman of the IAT and refuse decree of reduction of that determination.
