Scottish Court of Session Decisions

OUTER HOUSE, COURT OF SESSION [2012] CSOH 36
P1255/10	OPINION OF J. BECKETT QC (Sitting as a Temporary Judge) in Petition of AJ (AP) Petitioner; against THE SECRETARY OF STATE FOR THE HOME DEPARTMENT Respondent: for Judicial Review ­­­­­­­­­­­­­­­­­________________

Petitioner: Forrest; Drummond Miller

Respondent: Lindsay, Q.C; Office of the Solicitor to the Advocate General

1 March 2012

Introduction

[1] The petitioner, who is a national of Syria, of Kurdish ethnicity, seeks reduction of a decision of 8 October 2010 by the Upper Tribunal Immigration and Asylum Chamber to refuse him permission to appeal against a decision of the First Tier Tribunal dated 29 April 2010 rejecting an appeal by the petitioner against a decision of the Secretary of State to reject his claim for asylum on 5 February 2010.

The facts of the case

[2] The following narrative is taken from Mr Forrest's submissions and the determination and reasons dated 29 April 2010, No. 6/6 of process, of Immigration Judge Reid, a judge of the First Tier Tribunal (I J Reid). The petitioner arrived in the United Kingdom and claimed asylum on the basis of a well founded fear of persecution based on his political opinions and membership of the Kurdish Democratic Party in Syria, known as Yekiti. (This party name and spelling is taken from paragraph 3.1 of Mr Forrest's note of argument. It would seem that there are a number of political parties sympathetic to the cause of Kurdish people in Syria which include the word Yekiti, which means unity, in their title. The name of the party and the spelling of Yekiti are not used consistently in the case papers before me. I will endeavour to use the party name and spelling as they are variably used in the documents.) Part of the Secretary of State's reasoning in rejecting the claim was that she did not accept that the petitioner was associated with that party, or any similar party, and that decision was set out in a letter of 5 February 2010 which is No. 6/2 of process. The petitioner's appeal to the First Tier Tribunal was rejected because I J Reid, having heard the petitioner, did not accept his account that he had been politically active in Syria. A Senior Immigration Judge refused permission to appeal on 26 May 2010 and his reasons form No. 6/8 of process. The Upper Tier tribunal refused permission to appeal on 8 October 2010 and the reasons form No. 6/1 of process.

Submissions for the petitioner

[3] Mr Forrest, for the petitioner, presented a note of argument, No. 12 of process. In his oral submissions, he largely followed the argument in the note. Mr Forrest argued that the Upper Tribunal had erred in law because it had left out of account matters which ought to have been taken into account, namely information in numbers 6/4 and 6/5 of process, print-outs taken from a website which Mr Forrest presumed was run by Yekiti. These print-outs contained information about the party itself and the treatment of Kurdish people in Syria. The argument seemed to be that given that I J Reid had omitted to deal with these documents specifically in her determination and reasons, that omission undermined the subsequent decisions in relation to the petitioner's claim. Mr Forrest acknowledged that the decision of the Upper Tribunal was not an appealable decision and that whether the court could exercise it's supervisory jurisdiction fell to be decided in light of the principles set out by the Supreme Court in Eba v Advocate General for Scotland 2011 SLT 768. Mr Forrest drew my attention to the terms of paragraph 48 of the opinion of the Supreme Court given by Lord Hope of Craighead:

"48. So I would hold that the phrases 'some important point of principle or

practice' and "some other compelling reason", which restrict the scope for a

second appeal, provide a benchmark for the court to use in the exercise of its

supervisory jurisdiction in relation to decisions that are unappealable that is in

harmony with the common law principle of restraint: see, as to how these phrases are applied in practice in England and Wales, Uphill v BRB (Residuary) Ltd
[2005] EWCA Civ 60, paras 17 and 24 per Dyson L J and Cramp v Hastings Borough Council [2005] EWCA Civ 1005 para 68 per Brooke L J. Underlying the first of these concepts is the idea that the issue would require to be one of general importance, not one confined to the petitioner's own facts and circumstances. The second would include circumstances where it was clear that the decision was perverse or plainly wrong or where, due to some procedural irregularity, the petitioner had not had a fair hearing at all."

Mr Forrest did not contend that the petitioner's case raised an important point of principle or practice. He sought to persuade me that there was nevertheless a compelling reason why the decision should be reduced. In this case, the compelling reason was that the error was such that the petitioner did not receive a fair hearing at all.

[4] Mr Forrest submitted that a particular passage in the decision by the Secretary of State was an important starting point. Paragraph 14 of No 6/2 of process narrates certain information about the Yekiti party thought to be led by Hassan Saleh, and the existence of at least three parties which include the name Yekiti, and then paragraph 15 states:

"It is accepted that the information on the Yekity available in the public domain is limited. However, it is considered that the objective evidence that is available is inconsistent with your own evidence that there is a party by the name of 'the democratic union of Kurds in Syria (yekity)' that is headed up by a man named 'Ismail Omer' and was formed in 1998, as you claim. No record could be found of the party as described by you when searching the internet."

[5] Mr Forrest submitted that in his decision, the Secretary of State had questioned both the existence of the party and the petitioner's familiarity with its aims and in that respect questioned the credibility of the petitioner.

[6] Mr Forrest accepted that I J Reid had considered No 6/3 of process, a letter dated 11 February 2010 bearing to be from 'Europe representative of The Kurdish Democratic Unity Party of Syria.' She had given reasons for rejecting that information which, Mr Forrest conceded, could not be criticized. The position was different when it came to numbers 6/4 and 6/5 of process. The former, which bears to be attested to by the Legal Committee of Kurdish Yekiti in Syria and which also bears to come from a source noted as www.yekiti-party.org/, was dated 8 October 2008 and discussed the implications of inferior property rights accorded to Kurdish people in Syria. The latter, which bears to be attested to by the Committee of Kurdish Yekiti Party in Syria-UK Branch and which also bears to come from a source noted as www.yekiti-party.org/, was dated 22 April 2009 and gave information about the activities of the party. This material was of considerable materiality where I J Reid had challenged the existence of the political party with which the petitioner had claimed to be associated. This material went to the heart of the petitioner's claim.

[7] Mr Forrest referred to the judgment of the Court of Appeal given by Brooke L J in R (Iran) v Secretary of State for the Home Department [2005] EWCA Civ 982, paragraph 9, and particularly example iii identified there, 'Failing to take into account and/or resolve conflicts of fact or opinion on material matters.'

Mr Forrest submitted that such an error had been made in the present case. He accepted that reasons should not be read like a conveyancing document, and need not narrate every piece of information considered, but in this case, he submitted, the reasons fell short of what was required.

[8] Mr Forrest commended the opinion of Kay J at paragraph 8 of his opinion in R (Bahrami) v Secretary of State for the Home Department [2003] EWHC Admin 1453.

"8. In my judgment, what is essential is not that an adjudicator should deal with every point at length, but that the determination should be sufficiently reasoned to enable a claimant, his advisers, and any appellate or reviewing body, to see why the claimant lost on a particular issue. If the determination satisfies that test, it will usually be the case that the more schematic approach, formulated by Schiemann J in Amin, does not need to be considered. In considering the determination of an adjudicator, it is appropriate for the court to read it as a whole, analytically but without pedantry, in a common sense way. At the same time, the court must resist the temptation to engage in any conscious or subconscious rewriting of the adjudicator's determination."

[9] The court might find some assistance from the Canadian case of Dhillon v Canada (Minister for Citizenship and Immigration) [2001] FCT 1194, where a failure to refer to relevant information vitiated an immigration decision. By ignoring the content of the two print-outs put before her in the petitioner's case, the Immigration Judge had made the material error of failing to take account of material matters.

Submissions for the respondent

[10] Mr Lindsay Q.C., for the Secretary of State, invited me to repel the plea in law for the petitioner and to and sustain second and third pleas in law for the respondent. No compelling reason had been identified by the petitioner and in any event there was no error of law.

[11] On the "Eba" issue, Mr Lindsay advised that in another case, which is still to be determined, the Inner House is considering the vires of paragraph 41.59 of the Rules of the Court of Session, the terms of which had been relied on by Lord Hope in Eba as one of the reasons which he gave in paragraph 47 of his opinion in that case. However, both he and Mr Forrest recognised that I was bound by the decision of the Supreme Court in Eba.

[12] Mr Lindsay referred me to the opinion of Lord Hodge in AB v Secretary of State for the Home Department [2011] CSOH 205, particularly at paragraphs 15-20 and to the opinion of Lady Dorian in AK v Secretary of State for the Home Department [2012] CSOH 17, particularly at paragraph 10. Whilst in both cases those passages were strictly obiter, the reasoning was persuasive and I should come to the same conclusions in the present case.

[13] That was very much a fallback position for Mr Lindsay. His primary position was that there had been no error and that was sufficient to refuse the petition.

[14] Mr Lindsay referred me to the terms of paragraph 39 of I J Reid's determination and reasons:

"The documentary evidence before me submitted by the Respondent is that described on PF1 together with country information bundle and case law. For the appellant there were lodged various bundles including skeleton argument, chronology, witness statement, Party documents, military service documents and extensive objective country evidence."

I J Reid had summarised the materials which the petitioner had put before her. Reference to 'party documents' was plainly a reference to, inter alia, the print-outs. For these reasons, Mr Lindsay submitted that it could not be maintained that she did not have regard to those documents which now form numbers 6/4 and 6/5 of process.

[15] In any event, this was not a case where the application was refused because it was rejected or doubted that a political party existed, in which case the information in 6/4 and 6/5 of process might have been of particular relevance. This was a case where the petitioner had not been believed when he claimed to be a member of the Yekiti Party. That conclusion had been reached on the basis of inconsistencies in his accounts and his inability to demonstrate any more than the most superficial knowledge of the party.

Discussion

[16] I do not share Mr Forrest's understanding of how the Secretary of State made his decision in the letter of 5 February 2010. The letter explains that the Secretary of State did not accept that the petitioner faced a real risk of persecution on return for a convention reason because he did not accept that the petitioner was considered by the Syrian authorities to be a political opponent of the regime or that he had come to the adverse attention of the authorities. This view was reached because it was not accepted that events described by the petitioner, surrounding a political meeting on 1 July 2009 at his father's premises, had occurred and because it was not accepted that the petitioner was a supporter or sympathiser of the Yekity party or any other Kurdish political party in Syria. In paragraph 14 of that letter the existence of three different political parties including the name 'Yekiti' was noted and accepted by the Secretary of State. What the Secretary of State was saying in paragraph 15, was that the details of the party described by the petitioner did not, on the basis of such independent information as there was, match any of the parties including the name Yekiti, subject to a cautionary note about the limitations of the available information. That was expanded on in paragraph 16 where it was said that the petitioner lacked any meaningful knowledge about the person that he said was the leader of the Yekity party. Paragraph 17 noted that the prominent party office holders named by the petitioner, and other details about the party which he identified, could not be verified. Despite being Kurdish and speaking Kurdish, the petitioner could not state the aims of the party in Kurdish, only in Arabic, and the Secretary of State found the reasons for this to be unconvincing at paragraphs 18 and 19.

[17] The conclusion reached in paragraph 20 explains that:

"...it is not accepted that you were a supporter or sympathiser of the Yekity party or any other Kurdish political party in Syria."

[18] It is plain that it was not the existence of any party called Yekity, or the name of which included Yekity, which was being called into question but the petitioner's association with it.

[19] I J Reid explains that she had before her the forms on which the petitioner's screening and asylum interviews had been recorded as well as a more up to date statement of the petitioner submitted on his behalf. She also heard evidence from him. Whilst she noted, in paragraph 40, that the Secretary of State had rejected the credibility of the petitioner in certain respects, I J Reid made her own findings after hearing evidence from the petitioner. She sets out the evidence which he adopted, and gave in examination in chief and in cross examination between paragraphs 13 and 36.

[20] I J Reid concluded at paragraph 65-68:

"65. I find that the appellant was not a Kurdish political activist in Syria. I reached the conclusions that the appellant embellished an already fabricated account to bolster his prospects of a successful appeal. I do not believe the core of the appellant's account. I do not believe that he was involved at any level with any Kurdish political group in Syria but in fact cobbled together a story based on the difficulties it is accepted that politically active Kurds face in that country.

66. I find that he is not a fugitive nor did he come to the adverse attention of the Syrian authorities.

67. The appellant does not claim to have had any involvement with Kurdish groups or anti-Syrian activities whilst in the UK.

68. I concluded that the appellant left Syria for reasons other than being in need of international protection."

[21] At paragraph 70 I J Reid stated:

"Having carefully considered and weighed all the evidence before me, including that to which I have not specifically referred and having reached these conclusions, I find that the appellant has not discharged the burden of proof to establish that he is a refugee..."

[22] In the circumstances of this case, where what was truly in issue was the truth of the petitioner's claim to be politically active, and the extent of the activity which he claimed, I am not persuaded that Immigration I J Reid required to deal specifically with the information in the print-outs. It is plain that she had that material before her and did not overlook its content. Accordingly I do not accept that the subsequent decisions, including that of the Upper Tier Tribunal which is the subject of this petition, proceed on the basis of an underlying error in law.

[23] The case of Dhillon to which Mr Forrest referred, appears to me to be saying no more than that the duty to give reasons will impose different requirements on a decision maker according to the particular circumstances of the case and that where material is highly pertinent to the question at issue, it might be expected that there will be clear reference to it. I am not convinced that what was decided in Dhillon goes much further, if at all, than domestic law, but that is not a question which I need to decide, because Mr Lindsay did not regard the decision or the reasoning in Dhillon as undermining his argument that there was no error in the petitioner's case. He was content that the court should simply distinguish Dhillon.

[24] Applying the approach in Dhillon, I am not persuaded that there was any error in the present case. In Dhillon, there was available material, including documentary medical evidence, which tended to support the applicant's account that he had been subjected to torture. That was the material issue in that case and the court was of the view that it was necessary that some reference was made to the medical evidence, and other related documentary evidence, if the reviewing court was to be satisfied that the decision had been properly made. In the petitioner's case, it is clear that there was a general reference to the material said to have been overlooked. In the circumstances of this case, the absence of a more detailed discussion of that material, where it was not of central relevance to the decision maker's reasoning, was not necessary. There was no error of law.

[25] Even if there had been an error of the sort contended for by Mr Forrest, it would not, in the circumstances of this case, amount to a procedural irregularity such that it could be said that the petitioner had not had a fair hearing at all or indicate that the decision was perverse or plainly wrong. Applying the test set out by Lord Hope at paragraph 48 of his opinion in Eba, I do not consider that it could be said that there would be a compelling reason justifying the court's exercise of its supervisory jurisdiction. Mr Forrest conceded that the petitioner's case did not raise any important point of principle or practice.

Decision
[26] For these reasons, I am not persuaded that there is any basis for the court to intervene. I shall therefore repel the plea in law for the petitioner and sustain the second and third pleas in law for the respondent and refuse the petition. I reserve in the meantime the question of expenses.