Ejaz for Judicial Review, Petition of [2002] ScotCS 6 (10th January, 2002)
|
OUTER HOUSE, COURT OF SESSION
|
|
|
OPINION OF LADY SMITH
in Petition of
BUSHRA EJAZ
Petitioner;
for
Judicial Review of the decision of the Immigration Appeal Tribunal to refuse the petitioner leave to appeal
________________
|
Petitioner: O'Carroll; Anderson Strathern, W.S. (for McClure Collins, Solicitors, Glasgow)
Respondent: Carmichael; H Macdiarmid, Solicitor for Scottish Executive
10 January 2002
Introduction
- The petitioner, who was born on 9 September 1952, is a Pakistani National, is married but separated from her husband and has one son. She is a member of a minority Moslem sect known as the Ahmadis. They have their headquarters in Rabwah, Pakistan. The petitioner, whilst in Pakistan, preached on behalf of the Ahmadiya movement, on an informal basis. On 21 August 2000, the petitioner entered the United Kingdom, with entrance clearance for a six month visit. In her application for entry clearance she had stated as her reason for travelling to the UK: "To attend wedding ceremony." On 14 September 2000, the petitioner applied for asylum. On that date, a screening questionnaire was completed and signed by the petitioner. On 20 September 2000, with the assistance of a solicitor, a further questionnaire constituting the petitioner's asylum application was completed and signed by her. On 11 October 2000, the petitioner underwent an asylum interview, the record of which is Production 7/1 (Annex B) in these proceedings. The petitioner's application for asylum was refused on 19 October 2000. The petitioner appealed against that refusal in terms of the Immigration and Asylum Act 1999 section 69(2). After a hearing in Glasgow on 16 March 2001 before an Adjudicator, the petitioner's appeal was refused. The determination of the Adjudicator was dated 20 March 2001 and promulgated on 11 April 2001. The petitioner subsequently applied to the Immigration Appeal Tribunal for leave to appeal against that determination. On 15 May 2001, the Immigration Appeal Tribunal refused her application for leave to appeal.
- In the present petition for judicial review, the petitioner seeks reduction of the decision of the Immigration Appeal Tribunal to refuse leave to appeal against the determination of the Adjudicator and an order that the Immigration Appeal Tribunal grant such leave to appeal. However, at the outset of the hearing before me, Mr O'Carroll, counsel for the petitioner, indicated that he did not seek an order that the Immigration Appeal Tribunal grant leave to appeal but an order remitting the matter back to them for reconsideration of the issue of whether leave to appeal should be granted.
- In the petition, the petitioner avers that the Adjudicator reached a decision that was unreasonable in respect that she failed to give adequate reasons for her decision. It is averred, in particular, that she did not have proper regard to all the evidence before her relating to persecution in respect that the petitioner claimed to have been threatened by Sunni Moslems and the police on account of her having preached her Ahmadi religion and, in her first interview with the respondent, she had described such threats as being to her life. The averments criticise the Adjudicator in respect that she made no findings of fact in relation to that evidence. It is averred that she appears to have ignored that evidence. It is averred that the Adjudicator failed to make adequate findings of fact with regard to the persecution claimed by the petitioner and that as a result the finding that the incidents described by the petitioner did not amount to persecution, is a conclusion that could not properly be understood by the petitioner. Therefore, it is averred, the Adjudicator has failed to give adequate reasons for her conclusions which amount to an error in law.
Relevant Law
- The parties were largely in agreement as to the relevant law. In order to qualify for asylum, the applicant must have the status of refugee under and in terms of Article 1A(2) of the Geneva Convention. Article 1A(2) provides that the term "refugee" shall apply to any person who:
"owing to a 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."
"Persecution" is not defined in the Convention. It has been described as encompassing violations of human rights ranging from the "isolated and egregious threat to an individual's life" to lesser forms of treatment which have a cumulative effect of rendering the asylum-seeker's continued stay in the country of origin "intolerable" for a Convention reason (Gashi & Nikshiqi v Secretary of State for the Home Department 1997 INLR 96). Regard may also be had to the words of Staughton L.J. IN Iyathurai Sandrahighan v Secretary of State for the Home Department 1996 Imm AR 97:
"Persecution must at least be persistent and serious ill-treatment without just cause by the state, or from which the state can provide protection but chooses not to do so."
which I read not as contradicting what was said regarding the potential significance of an "isolated and egregious threat" referred to by the Immigration Appeal Tribunal in the case of Gashi & Nikshiqi v Secretary of State for the Home Department but as focusing, correctly, on the question of whether the asylum seeker will be at risk of the recurrence of persecution if he returns to his country of origin.
- As to the standard of proof, the asylum-seeker requires to show that there was a reasonable degree of likelihood that he would be persecuted for a Convention reason if he were returned to his country of origin (R. v Secretary of State for the Home Department ex parte Sivakumaran 1988 AC 958). Finally, as is confirmed in the case of Horvaih v Secretary of State for the Home Department 2000 3 WLR 379 there are two tests that require to be satisfied. An asylum seeker has to satisfy the "fear test", namely that he has a well-founded fear of being persecuted and he has to show that his own state is unable or unwilling to protect its own nationals (per Lord Hope of Craighead at 385 and 387).
The petitioner's submissions
- Before me, the approach taken by counsel for the petitioner was to challenge the determination of the Adjudicator as containing error which should have been obvious to the Immigration Appeal Tribunal thus rendering their refusal of leave to appeal fatally flawed. Counsel for the petitioner submitted that there was material before the Adjudicator to the effect that the petitioner had received threats to her life. Reference was made to the content of the questionnaires completed for the purpose of applying for asylum and the answers at interview on 11 October 2000 which were recorded in the interview record sheet. These documents were all contained in 7/1 of process. Reference was also made to the manuscript notes of the oral evidence given by the petitioner at the hearing on 16 March 2000 which were contained in the record of proceedings (6/5 of process). Counsel for the petitioner submitted that it was evident from these documents that the petitioner had alleged that she had received threats to her life. It was also, at one point, submitted that it was evident that she had alleged that she had been subjected to stoning (p.2-3 of the petitioner's oral evidence as noted in 6/5 of process). However, ultimately, counsel for the petitioner seemed to depart from that submission given that the allegation appeared rather to be that Ahmadis in general were subjected to stoning, not the petitioner herself. Further, an allegation that the petitioner herself had been subject to stoning would have been inconsistent with her answer to question 29 at interview. That question and answer were in the following terms:
"Did they persecute you in any other ways other than verbal abuse towards you and your son?
My son was beaten once or twice in the school. Because being a female they could only say something to me verbally."
- Counsel for the petitioner submitted that, on reading the Adjudicator's determination and reasons, it was evident that she had not dealt specifically with the allegations of threats to life, since she had not done so the inference could be drawn that she had failed to take account of relevant evidence, she was guilty of selective appraisal of the evidence and had failed the tests set out in the case of Singh v Secretary of State for the Home Department 1998 S.L.T. 1370. Counsel for the petitioner submitted that the fact that the Adjudicator may have so erred should have been obvious to the Immigration Appeal Tribunal because there was a conflict as between paragraphs 4 and 11 of her determination. Counsel for the petitioner's submission was that in stating, in paragraph 4: "She claimed that she is an Ahmadi and that she and her son received verbal abuse at the hands of non-Ahmadi Moslems" was not apt to cover the allegation that she had received threats to her life. It was significant, he said, that different language was used in the first sentence of paragraph 11 where the Adjudicator notes:
"In her oral evidence, she has described an incident which took place on 10 July 2000 during which she claimed she was threatened by Sunni Moslems and the police on account of her preaching her Ahmadi religion."
The absence of specific reference to the petitioner having received threats to her life in paragraphs 11 and 13 showed, he said, that the Adjudicator had failed to have regard to them. That was something that should have been obvious to the Immigration Appeal Tribunal. In these circumstances they should have found, he submitted, that there was an arguable case. Subsequently, on reflection and having regard to the Immigration and Asylum Appeals (Procedure) Rules 2000 (S.I. 2000 No.2333 (l.21)), counsel for the petitioner submitted that they should have found that there were reasonable prospects of success.
The respondent's submissions
- Counsel for the respondent, under reference to the cases of Karanakaran v Secretary of State for the Home Department 2000 3 All ER 449 and Nazim Sattar, Petitioner 2001 SCLR 748, submitted that the Adjudicator was not required to make a finding in fact for every issue in the case. It was rather a question of evaluation of the whole evidence. Further, she drew my attention to the fact that the procedural rules had changed. Whereas under the Asylum Appeals (Procedure) Rules 1996, an Adjudicator was required, in terms of Rule 2(3)(b) to make findings in fact, under the Immigration and Asylum Appeals (Procedure) Rules 2000, no such requirement is made. The relevant rule is Rule 15 in terms of which the only requirements as regards an Adjudicator's determination are that it be in writing and be sent to every party and the appellant's representative. Counsel for the respondent stressed that she did not suggest that the Adjudicator did not require to give reasons but her duty went no further than to bring herself within the ambit of what was said in the case of Wordie Property Company Ltd v Secretary of State for Scotland 1984 S.L.T. 345. For the application of that test to Immigration Appeals, counsel for the respondent referred me to the case of Singh v Secretary of State for the Home Department 2000 S.C. 219. She submitted further that, reading the determination of the Adjudicator as a whole, it left the reader in no real doubt as to the reasons for the decision that was reached. It was evident, she said, that the reason for the Adjudicator dismissing the appeal was that, taking the evidence at its highest, the incidents founded on by the petitioner were random in nature and not sufficiently serious to amount to persecution. The Adjudicator made it clear, counsel for the respondent submitted, that she had had regard to the whole evidence. In using the expression "verbal abuse" in paragraph 4, the Adjudicator was, counsel for the respondent submitted, using an expression that was wide enough to cover any incident of threat to life and no contradiction appeared as between paragraphs 4 and 11. Further, there could be no real doubt, on reading the determination as a whole, that the Adjudicator had, in particular, had regard to the allegations of threats to life. As regarded the matter of stoning, counsel for the respondent drew my attention to the fact that stoning was not mentioned in the petition and further that, for the reasons outlined above, the reference to it should not be seen as an allegation by the petitioner that she had herself been stoned which ultimately, as noted above, appears to have been accepted by counsel for the petitioner. Further, counsel for the respondent submitted that the reference to the possibility of relocating to Rabwah, which is the location of the headquarters of the Ahmadi religion was relevant. The Adjudicator had noted that the petitioner had not relocated to Rabwah. Counsel for the respondent submitted that it was evident that the Adjudicator had said to herself that the failure to relocate to Rabwah was one of the ways that she was deciding the issue of whether there had been persecution in that if the treatment of the petitioner had been that serious, then she would have relocated. Finally, in respect that, at one point, counsel for the petitioner had appeared to submit that the Immigration Appeal Tribunal ought to have examined all the evidential material in detail to check whether there was something that the Adjudicator had missed, under reference to the case of Robinson 1998 Q.B. at 945G, the Immigration Appeal Tribunal had no obligation to trawl through all the papers to check whether there was something the Adjudicator had missed. They only required to focus on any obvious points of Convention jurisprudence. I was invited to dismiss the petition.
The Adjudicator's determination and reasons
- The approach of the Adjudicator is to set out the background to the petitioner's entry into the United Kingdom, to note briefly the basis of her claim for asylum, to note the reasons for the refusal of that claim, to note that she heard oral evidence from both the petitioner and her son and submissions, and that she took into account various documents. Those documents now form part of the process in these proceedings. The Adjudicator then notes, correctly, that the burden of proof was on the petitioner to show that there was a reasonable likelihood that she would be persecuted for a Convention reason were she to be returned to Pakistan and that the question of whether a person has a well-founded fear of persecution for a Convention reason has to be looked at "in the round" in the light of all the relevant circumstances and judged against the situation as at the time of the hearing of the appeal. It is thus evident that the Adjudicator had in mind the correct approach as set out in the cases of R. v Secretary of State for the Home Department ex parte Sivakumaran; 1998 Imm A.R. 148 and Karanakaran v Secretary of State for the Home Department. The Adjudicator then summarises the oral evidence given by the petitioner and her son. Although, in the first sentence of paragraph 11 of her determination, the Adjudicator notes that the petitioner claimed she was threatened by the police, the evidence before her in respect of the police was not to the effect that they had threatened the petitioner but that they took no action and suggested that she should change her faith. Thus, it appears that the Adjudicator's reference to the petitioner having been threatened by the police is an error but it is not one which would appear to be material for the purposes of the petitioner's present case albeit, as argued by the respondent, when taken account of, it becomes evident that the allegation before the Adjudicator was one of persecution by non-state agencies only. This is, in particular, borne out by the petitioner's answer to question 28 as noted in the interview record which is that it was non-Ahmadi Moslems who were causing the problems of which she complained.
- It is, in my opinion, quite clear that the Adjudicator did not approach her deliberations by rejecting any of the evidence that was before her. It is plain from the approach she adopts in paragraph 13 that she has asked herself the relevant question of whether, taking the evidence in support of the petitioner's application at its highest, she has discharged the onus upon her of showing that there is a reasonable likelihood that she will be persecuted for a Convention reason if she is returned to Pakistan. In these circumstances, there would appear to be little, if any, need for the application of the principles set out in R. v Immigration Appeal Tribunal ex parte Amin 1992 Imm A.R. 367 and R. v Home Secretary ex parte Chugtai 1995 Imm AR 559 which are the second and third of the dicta referred to by Lord Macfadyen in the case of Singh v Secretary of State for the Home Department 1998 S.L.T. 1370 (at 1374). That leaves the principle as set out in the case of Wordie Property Company Ltd v Secretary of State for Scotland at p.348, namely:
"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."
I do not consider the reader to be left in any doubt as to what were the Adjudicator's reasons for reaching the decision which she did. She explains that, even allowing for the incidents alleged having taken place, she finds them to have been incidents of verbal abuse only, random in nature and not sufficiently serious or sustained to amount to persecution. In this connection, the view of Lord Penrose in Asif v Secretary of State for the Home Department 1999 S.L.T. 890, as approved by the First Division in the case of Singh v Secretary of State for the Home Department 2000 S.C. 219, falls to be borne in mind. At p.894G-H, Lord Penrose said:
"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."
- There seemed to be two aspects to the petitioner's attack on the Adjudicator's reasoning. The criticism that she did not specifically refer to the threats to life in her determination was the first of these. In my opinion, her use of the term "verbal abuse" does not give rise, as was argued, to the inference that she had either rejected, without giving reasons for doing so, evidence that the petitioner had received threats to her life or had forgotten that there was such evidence. The term is, in my opinion, quite wide enough to encompass threats to life. The Adjudicator's application of the definition of persecution was also, to an extent, criticised. On the one hand, the petitioner, under reference to the handbook on Procedures and Criteria for Determining Refugee Status published by the United Nations, submitted that it could be inferred that any threat to life would always be regarded as persecution. The paragraph founded on includes the statement:
"From Article 33 of the 1951 Convention, it may be inferred that a threat to life or freedom on account of race, religion, nationality, political opinion or membership of a particular social group is always persecution."
I cannot, however, see that that statement in any way disables an Adjudicator from making a qualitative assessment of any allegation of threat to life before her. That is what the Adjudicator in this case has done in finding that the incidents experienced by the petitioner were random in nature and not sufficiently serious or sustained to amount to persecution. On the other hand, the petitioner, under reference to the case of Gashi and Nikshiqi v Secretary of State for the Home Department 1997 Imm A.R. 96, and to the evidence of the incident in July 2000, submitted that a reasonable likelihood of persecution could be established by reference to a single event of persecution which was serious or a series of lesser events of persecution rendering the continued stay by the applicant in the country of origin intolerable. Again, though, I cannot see that that analysis, the logic of which is readily understandable, precludes the Adjudicator from making a qualitative assessment of the evidence before her.
Decision of the Immigration Appeal Tribunal
- Reading the determination of the Adjudicator as a whole it satisfies, in my opinion, the requirements relating to the giving of reasons in judgments in this particular field of law. It does not give rise to the inference that she had rejected or forgotten about the evidence that the petitioner had received threats to life. It does not leave the reader in any real or substantial doubt as to the reasons for her decision. On the contrary, she explains her reasons in paragraph 13 in an intelligible fashion. The Immigration Appeal Tribunal, in posing for themselves the question of whether the appeal had any prospect of success, applied the correct test in terms of the Immigration and Asylum Appeals (Procedure) Rules 2000. In all the circumstances the view of the Immigration Appeal Tribunal that the petitioner's appeal did not have a real prospect of success is one which they were entitled, in my opinion, to reach (Associated Provincial Picture Houses Limited v Wednesbury Corporation 1948 1 K.B. 233).
Conclusion
[13] It follows from the views I have reached that I consider that the determination of the Adjudicator is not flawed and thus the decision of the Immigration Appeal Tribunal is not susceptible of being reduced. In these circumstances the question of whether or not there should be a remit to the Immigration Appeal Tribunal does not arise. Accordingly I shall sustain the pleas-in-law for the respondent and dismiss the petition.
