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Scottish Court of Session Decisions |
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You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Alam v. Secretary of State for the Home Department [2004] ScotCS 162 (01 July 2004) URL: http://www.bailii.org/scot/cases/ScotCS/2004/162.html Cite as: [2004] ScotCS 162 |
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EXTRA DIVISION, INNER HOUSE, COURT OF SESSION |
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Lord Kirkwood Lady Cosgrove Lord Eassie
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P989/01 OPINION OF THE COURT delivered by LORD KIRKWOOD in PETITION and ANSWERS by MOHAMMED KHORSHEJUL ALAM Petitioner and Reclaimer; against THE SECRETARY OF STATE FOR THE HOME DEPARTMENT Respondent; for Judicial Review of a determination of a special Adjudicator dated 16 July 2001 _______ |
Act: Devlin; Drummond Miller, W.S. (Petitioner and Reclaimer)
Alt: Drummond; H.F. Macdiarmid (Respondent)
2 July 2004
[1] This is a petition at the instance of Mohammed Khorshejul Alam seeking judicial review of the determination of an immigration adjudicator dated 16 July 2001 and reduction of that determination. On 13 May 2000 the petitioner had applied for asylum in the United Kingdom. On 29 December 2000 the respondent, the Secretary of State for the Home Department, refused the petitioner's application. On 16 July 2001 the adjudicator issued her determination refusing the petitioner's appeal against that decision. In August 2001 the petitioner presented this petition for judicial review. On 8 April 2003 the Lord Ordinary refused the petition and the petitioner has reclaimed against the Lord Ordinary's interlocutor. [2] The petitioner was born in Chittagong, Bangladesh in 1995 and is married with two children. He lived in Bangladesh until 12 May 2000 when he flew from Dhaka to London, and on his arrival in London on 13 May he applied for asylum. His claim for asylum was based on the assertion that he had a well-founded fear of persecution in Bangladesh because he had been harassed by supporters of the ruling Awami League Party owing to his position as an area organising secretary of the opposition Bangladesh Nationalist Party (BNP). [3] The petitioner avers that he was an active member and organising secretary of the BNP in the area of Chittagong Hill Tracks. He had joined the BNP in or about 1991 and had been appointed organising secretary for the said area in or about 1995. His duties as organising secretary were to organise meetings in support of the BNP, distribute leaflets, attend and speak at meetings and recruit new members to the party. After the Awami League Party was elected to government in or about 1996, it attempted to restrict opposition by means of threats and physical violence. On each occasion that the petitioner organised meetings to speak in opposition to the Awami League Party he was threatened with punishment by Dulal Chakma, his opposite number in that party. The petitioner had reported the threats to the police but they had failed to take any action. On about fifteen or twenty occasions between 1996 and August or September 1999 the petitioner had been threatened. Finally, in August or September 1999 Dulal Chakma had approached the petitioner and told him that if he held any further meetings or remained in his home area he would be killed. The petitioner was aware of other members of the BNP who had been killed after receiving similar death threats. He was afraid for his own safety and went into hiding. As a result of being unable to locate him, members of the Awami League Party made false accusations to the police against him, and on a number of occasions the police searched the petitioner's house in attempts to arrest him. The petitioner became afraid that it would be only a matter of time before he would be located by the police who would then advise the Awami League Party of his whereabouts and he would be killed. After about nine months in hiding, the petitioner was able to arrange to leave Bangladesh. [4] The respondent refused the petitioner's application for asylum. He took the view that the petitioner had not established that he had a well-founded fear of persecution by the Awami League Party. He also noted that the petitioner had admitted (1) that a letter which he had produced in evidence claiming that the authorities had charged him with being in possession of illegal weapons was not genuine and (2) that he had an illegally obtained British passport in the name of Moshin Haider. [5] The immigration adjudicator reviewed the petitioner's immigration history, the accounts which he had given in his initial asylum interview and in his evidence and the submissions which had been made on behalf of the petitioner and the respondent. The adjudicator also had regard to the Bangladesh Country Assessment of October 2000 by the Home Office Country Information and Policy Unit and a United States State Department Country Report on Human Rights Practices in Bangladesh in 2000. The adjudicator found that the petitioner had failed to establish that he had a history of harassment or ill-treatment amounting to persecution for a Convention reason, that he had failed to establish that he was currently of interest to the Bangladesh authorities and that he had therefore failed to establish that there was a reasonable degree of likelihood that he would be persecuted for a Convention reason if he was returned to his own country. The adjudicator's reasons for reaching that conclusion are set out in paragraphs [42] to [47] of her determination which are in the following terms:"[42] Against the background of the objective evidence I am able to accept the appellant's account as credible in so far as he says that the ruling party Awami League Party receives more favourable treatment from the police than the BNP, and the party in power always oppresses the opposition party.
[43] I accept as credible the answers given by the appellant to the Immigration Officer at the Asylum Interview on 13 May 2000 and in evidence namely that he has never been arrested or detained by the Bangladesh Authorities or police. [44] The claim before me at its highest, showed that the appellant had a subjective fear of ill-treatment based on a number of uncertain events, namely if he were detained by the police, the Organising Secretary of the local Awami League was advised and choosing to act on the information, chose to gain access to him, having gained access the Awami League members chose to ill-treat him, and the police officers chose to turn a blind eye to any wrongdoing by the Awami League members. [45] The appellant's evidence about the solicitor's letter is contradictory and confusing both in relation to its author, transmission to him and contents. At its highest the letter is self-serving and could not be given a higher status that (sic) the appellant's own evidence. I cannot accept the letter as evidence and therefore remove it from my consideration apart from the question of certification. [46] The appellant's evidence about his activities and the beliefs of his party is scanty given the objective evidence contained in the Country reports and set out in paras 33 - 38 above. He failed to mention the halal or general strikes by the BNP. He failed to mention the December 1999 marches by opposition activists in the Chittagong and created instead the picture of a party losing supporters due to successful intimidation by the Awami League. I accept the respondent's submission that his lack of detail is not consistent with his assertion that he was an activist of interest to the Awami League and through them to the police. [47] Taking into account the contents of the statement lodged, the oral evidence and the Asylum Interview Record I was not satisfied that the appellant was a credible witness. I accepted that he was a member of the BNP. Because the appellant demonstrated such a limited grasp of the political concepts of the party both in his oral evidence and at the Asylum Interview, I could not regard as credible his assertions that he had been an active Organising Secretary since 1995."Decision
[12] It was accepted by counsel for both parties that the adjudicator's finding that the petitioner was not a credible witness was based on the relatively narrow ground that she did not believe his evidence that he had been an active organising secretary for the BNP since 1995, and that the principal issue for our determination in this reclaiming motion was whether the adjudicator had been entitled, for the reasons which she had given, to reject the petitioner's evidence to that effect. The Lord Ordinary held that the adjudicator had been entitled to make the findings she did on the strength of the material on which she had relied. However, as the Lord Ordinary rightly observed, the issue in this case was not one of making a determination of credibility based on inconsistencies between earlier and later statements by the petitioner. [13] The adjudicator accepted that the petitioner had been a member of the BNP and that the party in power in Bangladesh always oppresses the opposition party. However, she stated that the petitioner's evidence about his activities and the beliefs of his party was scanty given the objective evidence contained in the Country reports. She specified, in paragraph [46], matters which he had failed to mention. She then accepted the respondent's submission that the petitioner's lack of detail was not consistent with his assertion that he had been an activist of interest to the Awami League, which was the party in power in Bangladesh. It is, however, to be noted that there is no indication that the evidence given by the petitioner about the nature of his activities as an organising secretary was inconsistent with the activities which would normally be expected in the case of an organising secretary of a political party in Bangladesh. While the adjudicator referred to matters which the petitioner had failed to mention, and stated that he had a limited grasp of the political concepts of his party, the extent to which the questions which were put to him were calculated to elicit these matters is far from clear. In particular, there is no indication in the adjudicator's summary of the evidence before her that the petitioner was asked any questions which might reasonably have produced answers mentioning the limited number of political events or matters to which the adjudicator referred in paragraph [46] of her decision. In the absence of such questions and answers demonstrating ignorance of political events, we do not consider it legitimate to draw a crucial adverse inference merely from a failure to volunteer a mention of events such as a general strike or protest marches which might be thought by someone in the petitioner's position as so within public knowledge as not to warrant reference in the absence of specific questioning. [14] Further, with regard to the adjudicator's refusal to accept the petitioner's evidence that he had been an activist of interest to the Awami League Party, and through them to the police, the petitioner had given evidence of threats which had been made to him, including a threat to kill him. It was accepted by counsel for both parties that the adjudicator had not dealt specifically with the evidence of the alleged threats. She did not say that she rejected the petitioner's evidence about the threats nor, if it could be implied that she had rejected that evidence, did she give reasons for rejecting it. Counsel for the petitioner had attempted to make submissions to the Lord Ordinary about the threats but the Lord Ordinary refused to allow him to do so on the ground that, although the petition contained averments that threats had been made, Statement 7, which set out the grounds on which the petitioner sought reduction of the determination, did not include any reference to them. Shortly before the first hearing an attempt had been made to amend the petition by adding averments about the threats, but another Lord Ordinary had refused to allow the minute of amendment to be received. In our opinion, however, the factual issue as to whether or not threats had been made to the petitioner could have had a considerable bearing on the credibility and reliability of his assertion that he had been an active organising secretary since, if the threats had been made, they could be attributed to his activities in that post. Indeed, counsel for the respondent conceded that the question whether the petitioner had been an organising secretary and the issue of the making of alleged threats were interlinked. If it was accepted that threats had been made against him by supporters of the ruling party, that would lend considerable weight to the petitioner's evidence that it was his activities as an organising secretary for the opposition party which had attracted the unwelcome attentions of the Awami League Party. [15] In the particular circumstances of this case we are satisfied that the Lord Ordinary was not justified in refusing to hear submissions about the alleged threats. In R v. Home Secretary, ex parte Robinson 1998 QB 929 Lord Woolf M.R., delivering the Opinion of the Court, made the following observations (at page 945):"It follows from what we have said that it is the duty of the appellate authorities to apply their knowledge of Convention jurisprudence to the facts as established by them when they determine whether it would be a breach of the Convention to refuse an asylum-seeker leave to enter as a refugee, and that they are not limited in their consideration of the facts by the arguments actually advanced by the asylum-seeker or his representative."
