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EXTRA DIVISION, INNER HOUSE, COURT OF SESSION
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Lord Abernethy
Lord Philip
Lord Carloway
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[2007] CSIH 13
XA50/05
OPINION OF THE COURT
delivered by LORD CARLOWAY
in
APPEAL
by
MK
Appellant;
against
the decision of the
IMMIGRATION APPEAL TRIBUNAL
Respondent:
_______
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Appellant: Caskie; Drummond Miller WS
Respondent: Miss Drummond; C. Mullin,
Solicitor for the Advocate General
15 February 2007
The Appellant's Evidence
[1] The appellant is a national of Pakistan. According to his written statement, he is
aged twenty nine, a Sunni Muslim and comes from Gujranwala. In 1995 he joined the Seph-e-Sahaba, a Sunni
political party. A letter confirming his
membership was produced. On 6 May 1997, a Shia Muslim police
superintendent was murdered by three gunmen.
A First Information Report, also produced, provided the details of the
crime. The identity of the assassins was
not initially known, but Sunni Muslims were suspected. Although he had no police record, the
appellant was arrested in July 1997 and questioned about the murder. The police interest in the appellant was said
to have been prompted by local Shia Muslims.
The appellant was not being accused of the murder but was being asked to
supply information on the assassins.
[2] Over a period of up to twelve days, the appellant was said to
have been tortured by the police by, amongst other things, being burned on his
back and chest by lighted cigarettes.
The police also fractured his elbow, using
sticks. He was in hospital for two
weeks. A brief medical report dated 30 July 1997 was produced from a
consultant orthopaedic surgeon in Gujranwala
referring to the appellant complaining of police torture and confirming his in-patient
treatment for a fractured right elbow.
The surgery was also referred to in a report from a General Medical
Practitioner in Glasgow, who saw
the appellant on occasions in and after October 2000. This doctor confirmed that the appellant had
a burn mark on his right chest wall, consistent with a cigarette burn.
[3] The appellant was released from this initial police custody
because members of his family, who include relatively wealthy businessmen, paid
a large bribe. The appellant ceased all
political activity. However, in December
1997 he was arrested again, detained for two days and punched and kicked by the
police. Another bribe was paid. Nevertheless, in March 1998 a third cycle of
detention, torture and release by bribe occurred. The appellant determined that this should not
recur and he "started to move around to avoid...detection". He moved to stay in Murre and Lahore,
although he did return home periodically "when my family were sure it was
safe". It was said that his absences
made the police suspicious that the appellant had been involved in the murder
itself. The appellant decided to leave Pakistan
because his "life was becoming seriously endangered". He obtained a passport in May 1998. He then set about obtaining a visa for entry
into the United Kingdom. He bribed an agent to obtain this, but the
agent disappeared. In mid August another
agent was bribed, but failed to obtain the visa. This agent did return the money but a third
one, bribed in the October, did not.
[4] By late 1999, the appellant's family thought that police
interest in him had diminished. The
appellant returned to the family home and married in January 2000. A few days later, the police came to the house
looking for the appellant. He was not
there. He fled back to Lahore
and then Murre, although again intermittently returning home. During this time, the police continued to
call at the house looking for him. On 12
April, a warrant for his arrest was left for him at the house. A copy of this document was produced. It is entirely handwritten, other than the
stamp of the magistrate said to have issued it.
It bears the FIR number and (in translation) reads:
"Of the three unknown accused associated with this case,
one of these accused, Mr [K] is being sought for arrest.
During April 2000, on the 10/4/2000, as a result of the police investigation it
appeared that the said Mr [K] had disappeared from Pakistan. Whenever the said person returns to Pakistan
he is to be arrested and punished with the appropriate penalty. The said Mr [K] is the person to be
punished."
It was this warrant which
persuaded the appellant that "the persecution by the police authorities was
never going to stop". Meantime, in July
2000, the appellant's mother, who had been staying with friends in the United
Kingdom, had a heart attack and, three days
later, died. Before she died, the
appellant had applied for a UK
entry visa in order to visit her. He
secured a six month visitor's UK
entry visa on 24 July 2000. He left Pakistan
with his wife and child and arrived in the United
Kingdom on the following day. The appellant did not claim asylum until very
shortly before the expiry of the visa.
He maintained that this was because he had been told by a solicitor that
he did not require "to claim asylum immediately".
The Asylum Application
[5] The
appellant's application was dated 1 January
2001. It was refused by
the respondent in a letter of 7 December
2001. He appealed to an
Adjudicator on both refugee and human rights grounds. The Adjudicator heard the appeal on 6 December 2002 and
promulgated his decision on 2 January
2003. He addressed himself
to the credibility of the appellant's account, acknowledging that he had to do
so against the background of known conditions in Pakistan, provided
in part by a United States State Department Report. The Adjudicator found a number of elements in
the appellant's account to be incredible.
These included that:
"22. I find it
incredible that having been allegedly detained on three separate occasions and
released without charge that the appellant spent approximately two years at
liberty [in] Pakistan without ever having any further enquiry made of him in
respect of the alleged murder especially given the background of his alleged
detention and torture on three previous occasions.
23. I find it
incredible that the appellant allegedly paid agents on three separate occasions
to assist him in gaining an exit visa from Pakistan
when he had within his possession a valid passport which in addition to
allowing him to move throughout any area of Pakistan
would have facilitated his exit overland.
24. I
find it incredible that an apprehension warrant dated the
10th April 2000 would be delivered to the appellant's house in his
absence thereby forewarning the appellant of his intended apprehension..."
The Adjudicator analysed the
content of the medical reports and the FIR and held that they did not provide
substantiation of the appellant's accounts.
He concluded that:
"...no reliance can be placed on the impact [of] the
documents he has produced in support of his account."
He dismissed the appeal.
[6] The
appellant sought leave to appeal to the Immigration Appeal Tribunal. This was initially refused by the Tribunal
but the appellant successfully challenged that refusal in a petition for
judicial review. Leave was then granted
and the case eventually came before the Tribunal on 21 January 2005. The Tribunal notified the appellant of its
decision on 17 February. The appellant
was successful in persuading the Tribunal that the Adjudicator had erred in his
approach to the evidence provided by the documents produced by the
appellant. Under reference to the
starred decision of the Tribunal in
Tanveer Ahmed v Secretary of State for the Home Department [2002] UKIAT 00439, the Tribunal held that the Adjudicator had:
"16. ...
looked at the documentary evidence as if it was meant to prove the appellant's
case. The Adjudicator should
have...looked at the documentary evidence in the round in his assessment of the
appellant's credibility."
The Tribunal continued:
"17. Be
that as it may, this does not mean that the Adjudicator's credibility findings
are flawed.
18. We
agree with [the respondent] that the medical reports provide a modicum of
support for the appellant's claim. [The
Hospital] report shows that he was injured during police detention in July
1997. [The GP] report only refers to one
cigarette burn at his chest. That is
inconsistent with the appellant's evidence that he was burnt on his chest and
back with lit cigarettes. Nevertheless,
the evidence provides support for the appellant's claim that he was arrested
and detained in July following the murder of a police inspector. He may have been arrested on two further
occasions in December 1997 and March 1998 by the police in the course of their
investigation into the murder.
Nevertheless we agree with the Adjudicator that it is not credible that
the appellant would have remained at liberty in Pakistan without ever having
any further enquiry made of him in respect of the alleged murder, but an arrest
warrant would then be issued approximately three years after the alleged
incident. Furthermore, that the arrest
warrant would be left in his house in his absence thereby forewarning him of
his intended apprehension. Like the
Adjudicator we do not believe that he would have paid an agent on three
separate occasions to assist him in gaining an exit visa from Pakistan when he was in possession
of a valid passport. The fact that the
appellant delayed claiming asylum until his visa had expired further undermined
the credibility of his claim. We also
agree with [the respondent] that it is almost seven years since the appellant
was last detained in Pakistan. We have no evidence that the police have
maintained an interest in him.
19. Accordingly,
we find that the appellant has failed to discharge the burden of proof upon
him..."
The Tribunal dismissed the
appeal. The appellant was refused leave
to appeal to the Court. However, on 11 January 2006 leave to appeal was
granted unopposed by the Court. That appeal was brought under paragraph 23(1) of Schedule 4 to the
Immigration and Asylum Act 1999 (c 33) on the basis that there had been an
error of law material to the determination.
Submissions
(a) APPELLANT
[7] Although the appellant's grounds of appeal contended that the
Tribunal had erred in failing to reconsider the case after having decided that
the Adjudicator's decision was flawed, that ground was not insisted upon. There was also no argument based upon the
original refugee, as distinct from the human rights, claim. The focus was upon a
potential breach of Article 3 of the European Convention on Human Rights and
Fundamental Freedoms should the appellant be returned to Pakistan and find himself back in the custody of the Gujranwala
police (see e.g. Qamar v Immigration Appeal Tribunal,
unreported, Extra Division, 16 March 2004).
[8] The
Tribunal had required to reach a conclusion on whether, in all the
circumstances, there was a serious possibility of persecution using the process
of reasoning described by the Court of Appeal in England (Karanakaran v Secretary of State for the Home Department [2000] 3 All ER 449, Brooke LJ at 469, Sedley LJ at 479). The dangers of finding an appellant's account
implausible without evidence in support of that implausibility had to be
guarded against (HK v Secretary of State for the Home Department, unreported, [2006] EWCA Civ 1037, Neuberger LJ at paras [27]-[30]; Wani v Secretary of State for Scotland 2005 SLT 875, Lord Brodie at
883). "Anxious scrutiny" was required
because of the potential consequences of an erroneous decision (Singh
(Jaswinder) v Secretary of State for the Home Department 1998 SLT 1370,
Lord Macfadyen at 1374). An adequate
description of the reasons for the decision required to be given (Wordie Property Co v Secretary of State for
Scotland 1984 SLT 345, Lord President Emslie at 348; Singh (Daljit) v Secretary of
State for the Home Department 2000 SC 219 at 222). Failure to provide such reasons was an error
of law (Esen v Secretary of State for the Home Department 2006 SC 555 at para
[21]; R (Iran) v Secretary of State for the Home Department [2005] Imm AR 535,
Brooke LJ at para [9]).
[9] In
paragraph 18 of their determination, the Tribunal had failed to provide
adequate reasons. It had failed to
demonstrate, with sufficient clarity, that it had taken into account all the
relevant evidence. In referring to the
limited effect of the medical reports, the Tribunal had reduced the effect of
these documents. In reaching a view on
the plausibility of the appellant's account, the Tribunal had reached views on
the likelihood of courses of action by the police in Pakistan without
being qualified to do so. It was
possible that the FIR had been re-activated (see the US State Department
report) and the warrant could have been issued as a result of that. The Tribunal appears to have left out of
account the fact that the police interest in the appellant had been revived as
a result of the appellant's re-appearance in the local area. There was no reason to suppose that it was
unusual for a copy of a warrant to be left at someone's house. Furthermore the Tribunal's views on the
plausibility of the appellant's actions in attempting to exit Pakistan were not
based on evidence. Although it was
possible for a delay in making an asylum application to have a bearing on
credibility, the appellant had given an explanation for this, namely bad advice
from his lawyer. If any of the reasons
given by the Tribunal for finding the appellant's account incredible were
inadequate, the decision required to be quashed and the matter remitted to the
Asylum and Immigration Tribunal for reconsideration (Hamden v Secretary of State for the Home Department, unreported,
[2006] CSIH 57).
(b) RESPONDENT
[10] The well established test for determining the adequacy of
reasons was set out in Singh (Daljit) v
Secretary of State for the Home Department (supra at 222) under reference to the dicta in Wordie Property Co v
Secretary of State for Scotland (supra)
and subject to the observations of Lord Penrose in Asif (Mohammed) v Secretary of State for the Home Department 1999
SLT 890. An appellate court should be
reluctant to interfere with the determination of a Tribunal on this ground
unless it really could not understand what its thought
processes were when making material findings (R (Iran) v Secretary of State for
the Home Department (supra),
Brooke LJ at para [15]). A Tribunal did
not need to set out every factor which influenced its reasoning and the fact
that the reasons given might be short did not imply that they were
inadequate. The mere fact that some of
the reasons given did not bear analysis was not enough to justify an appellate
court in setting aside a decision (HK v
Secretary of State for the Home Department (supra) Neuberger LJ at para [45]).
The error had to be a material one.
A Tribunal is entitled to rely upon its common sense and ability as a
practical and informed body in identifying what was or was not plausible (Wani v Secretary of State for Scotland (supra), Lord Brodie at para [24]; Esen v Secretary of State for the Home Department (supra) at para [21]).
[11] In relation to the Tribunal's decision on credibility, the
issue was whether the view it reached was one which a reasonable Tribunal could
have reached on the material before it (Asif
v Secretary of State for the Home
Department 2000 SC 182 at para [17]).
It decided that it was not credible that the appellant could have
remained at liberty for some years without further enquiry before suddenly
receiving a warrant. That was an
intelligible reason for doubting his account.
The reasoning in relation to the medical reports was plain and left the
reader in no doubt about where the Tribunal considered the consistencies and
inconsistencies lay. The Tribunal's view
that it was not credible that an arrest warrant would be left at the
appellant's house was also intelligible.
There had been no evidence that the FIR had been re-activated. The Tribunal was entitled to the view that it
was not likely that the appellant would have applied for a visa through agents
on three separate occasions when he already had a passport. It was accepted by the appellant that the
Tribunal could take into account the delay in his application for asylum, and
that is what the Tribunal had done.
Ultimately the Tribunal concluded that the appellant had not discharged
the burden of proof upon him and had given adequate reasons for that
result. The appeal should be refused.
Decision
[12] The Tribunal determined that the Adjudicator had erred in his
approach to the documentary evidence, which the appellant had produced. It therefore reconsidered the material before
it and arrived at its own conclusion.
This was done some four years after the appellant's original application
and two years after the Adjudicator had made his findings based on the
appellant's written statement and oral testimony. However, there was no request for the
Tribunal to admit additional material or any apparent need for the Tribunal to
seek out such material. The Tribunal's
decision was based on the same material as had been before the
Adjudicator. The only issue for the
Court is whether the Tribunal erred in law in a manner material to its
decision. If such a material error is
identified, the Court has no residual power to refuse the appeal (cf (HK v Secretary of State for the Home
Department (supra) Neuberger LJ
at para [45]). The decision must, in
that event, be quashed and the case remitted to the Asylum and Immigration
Tribunal for consideration de novo.
[13] The first area of concern is whether the Tribunal has given
adequate reasons for its decision. "The
proper and well established test for assessing the adequacy and sufficiency of
reasons given by an administrative tribunal is summarised by Lord President
Emslie in Wordie Property Co. Ltd. ...[A]ny additional judicial statements are merely a gloss on
the basic test" (Singh (Daljit) v Secretary of State for the Home Department
(supra) at 222). The precise terms of the test bear
repetition. A tribunal:
"must give proper and adequate
reasons for [its] decision which deal with the substantial questions in issue
in an intelligible way. 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" (Wordie
Property v Secretary of State for Scotland (supra) Lord President Emslie at 348).
[14] The Tribunal's decision was that the appellant had failed to
discharge the burden of proof upon him to demonstrate that there was a real
risk of him suffering, either persecution for a convention reason or treatment
contrary to his human rights, in the event of him returning to Pakistan. The Tribunal accepted that the appellant had
been arrested and detained in July 1997 following the murder of the police
officer. The Tribunal also accepted that
he was injured during that police detention and "may have been arrested on two
further occasions in December 1997 and March 1998 by the police in the course
of their investigation into the murder" (Tribunal Determination para 18). Up until that point, the Tribunal's decision
is broadly in favour of the appellant and takes into account the support which
it had identified from the medical reports.
But beyond this, the Tribunal's view diverges radically from the
appellant's position.
[15] The Tribunal did not accept that the appellant had demonstrated
that the police had any further interest in him after 1998, that interest being
an essential element in proving, upon the low standard applicable, that he
remained at risk of being arrested once more upon his return. The simple reason for this was that the
Tribunal did not believe the account given by the petitioner of events
occurring after 1998. The basis for
their rejection of his testimony was that material parts of it were not
regarded as credible. In particular, the
Tribunal did not regard it as credible first that he "would have remained at
liberty in Pakistan
without ever having any further enquiry made of him in respect of the alleged
murder, but an arrest warrant would then be issued approximately three years
after the alleged incident". Secondly,
the Tribunal did not believe that that the police would leave an arrest warrant
at his house in his absence thereby forewarning him of his intended
apprehension. Thirdly, the Tribunal did
not believe that the appellant would have paid an agent on three separate
occasions to assist him in gaining an exit visa from Pakistan
when he was in possession of a valid passport.
Fourthly, the Tribunal regarded the appellant's delay in claiming asylum
until his visa had expired as undermining the credibility of his claim.
[16] The Court has no real and substantial doubt as to what the
reasons for the decision were or what the material considerations, which were
taken into account in reaching it, were.
The reasons and considerations are succinctly but clearly set out. Ultimately, the appellant's submission sought
to persuade the court that the Tribunal required to give further specification
of the reasons themselves. There is no
requirement to do this since the reasons are plain and understandable. The test set out in Wordie Property Co. v Secretary of State for Scotland
(supra) has been met and the appeal
on this ground must fail.
[17] The appellant perilled his case upon his submission concerning
the inadequacy of the Tribunal's reasons and did not seek to develop a separate
ground based on the unreasonable nature of the reasons expressed. Nevertheless, the submissions came close to
suggesting such unreasonableness. In
particular, the appellant maintained at various points that the Tribunal's views
on credibility were not adequately grounded in the evidence. Notably, it was said that the Tribunal was
not entitled to form a view on what the police in Pakistan
may or may not have done. This affected,
in particular, the first and second reasons given. It was also argued that the third and fourth
reasons were not sufficient to reject the appellant's credibility, where he had
given an explanation for his actions. It
hardly bears repeating that an appeal to the Court lies only upon the basis of
an error in law. The assessment of
credibility is an exercise which is to be carried out by the specialist
adjudicator or tribunal. The conclusions
reached are matters of fact. The Court
cannot overturn a tribunal's view on credibility simply because it might have
reached a different decision upon its own review of the testimony and documents.
[18] There are, of course, many strictures concerning the assessment
of the credibility of asylum applicants.
As was said recently by Lord Abernethy, delivering the Opinion of the
Court in Esen v Secretary of State for
the Home Department (supra at
565):
"Credibility is an issue to be handled with great care and
with sensitivity to cultural differences and the very difficult position in
which applicants for asylum escaping from persecution often find
themselves. But our system of
immigration control presupposes that the credibility of an applicant's account
has to be judged...Credibility is a question of fact which has been entrusted by
Parliament to the adjudicator. The
adjudicator is someone specially appointed to hear asylum appeals and had the benefit
of training and experience in dealing with asylum seekers from different
societies and cultures. Of course an
adjudicator must give his reasons for his assessment. A bare assertion that an applicant's account
is implausible is not enough...But an adjudicator is entitled to draw an
inference of implausibility if it is based on the evidence he has heard and in
coming to his conclusion he is entitled to draw on his common sense and his
ability, as a practical and informed person, to identify what is or is not
plausible..."
The
references to an adjudicator apply equally to a specialist immigration
tribunal.
[19] The Tribunal did not make a bare assertion of
implausibility. It analysed the
appellant's account against the background information and the documents
produced. It reached its view that
certain parts of that account were not capable of being believed by testing
these parts against the evidential background and the other parts of the
appellant's testimony. It considered, in
that context, the inherent likelihood of the version of events presented. The parts disbelieved essentially covered the
period from March 1998 onwards. Once his
account of that period came to be rejected, the only reasonable conclusion that
could be reached was that there was no basis upon which it could be said that
the police had any current interest in the appellant and therefore that the
appellant had failed to discharge the burden on him. That decision was one which was open to the
Tribunal on the evidence before it.
[20] In the circumstances, no error of law having been identified,
the appeal must be refused.
