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	Scottish Court of Session Decisions
You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Asif v Secretary Of State For The Home Department [2001] ScotCS 283 (11 December 2001) URL: http://www.bailii.org/scot/cases/ScotCS/2001/283.html Cite as: [2001] ScotCS 283

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[1] The petitioner and appellant was born on 22 October 1966. He is a citizen of Pakistan. On 3 September 1992, he left Pakistan and went to Saudi Arabia. On 8 September 1994 he travelled from Saudi Arabia to Heathrow Airport. At that time, he was in possession of some money and a return ticket and was given leave to enter and remain in the United Kingdom for six months. His leave to remain accordingly expired on 8 March 1995. He remained after that date without obtaining any further leave. On 13 April 1995 he was found by immigration officers while he was working in a restaurant in Elgin and was detained. An application for asylum was made on his behalf on 18 April 1995 (although, as will be seen, the appellant maintained that an application had earlier been made on his behalf by Immigration Advisory Service, Glasgow) and he was interviewed in Aberdeen on 16 May 1995. His application for asylum was refused on 7 January 1997 and a deportation order was eventually made on 20 August 1997. The appellant appealed to a special adjudicator who, after a hearing on 21 November 1997, dismissed the appeal by a decision dated 23 December 1997. On 20 January 1998, leave to appeal to the Immigration Appeal Tribunal was refused. The appellant thereafter presented this petition for judicial review which, in due course, was heard before the Lord Ordinary who, on 12 January 1999, dismissed the petition. The petitioner and appellant now appeals.

[2] The argument before us followed a very different course from the argument before the Lord Ordinary. Much of the Lord Ordinary's opinion is concerned with questions as to the proper way in which reasons should be stated by a Tribunal such as the special adjudicator and with the proper approach to the application of the principles of judicial review in considering the sufficiency of such reasons. The argument before us, however, concentrated on the findings of the adjudicator and, in particular, on his approach to questions of credibility of the applicant. There is some mention in the Lord Ordinary's opinion of some of the points on which the argument before us was focused, but plainly these matters were only discussed before him to a limited extent. In the argument before us there was virtually no discussion of, or even reference to, the Lord Ordinary's opinion, so that it is not necessary, or helpful, for the decision of this appeal to set out what the Lord Ordinary said.

[3] The hearing before the adjudicator took place on 21 November 1997. An application was made on behalf of the appellant to postpone the hearing but the adjudicator refused that application and his decision in that respect was not challenged. In his decision, the adjudicator narrates the material which he had before him and refers to the conditions which are to be satisfied if it is to be held that a person should be entitled to asylum. The material before him included the Secretary of State's refusal letter of 7 January 1997 which narrated the basis of the appellant's claim for asylum as follows:

[4] The information which the adjudicator had before him was limited. He had a number of reports which fully described conditions in Pakistan generally, but the evidence relating to the appellant himself consisted only of a copy of the application lodged on his behalf on 18 April 1995, a copy of a passport issued to him in Riyadh on 7 May 1994, a copy of a document known as an FIR (First Inquiry Report), purportedly emanating from the police authorities in Pakistan, and the record of the appellant's interview conducted at Aberdeen on 16 May 1995. The appellant did not give evidence before the adjudicator. On a number of occasions in the course of his decision the adjudicator refers to the fact that the appellant did not give evidence. On each occasion, the adjudicator makes it clear that he did not draw any inference from the fact that the appellant did not give evidence: he does, however, point out that there are matters which might have been explained but which were not explained in the information actually before him.

[5] Having considered all the material before him, the adjudicator set out his conclusions as follows:

[6] The inconsistencies and omissions upon which the adjudicator proceeded in reaching that conclusion are explained in detail in his decision. Since it is not the province of this court to hear an appeal against the adjudicator's assessment of the facts, it is not necessary to recite all of the evidence or the adjudicator's assessment of it. In summary, the matters of which the adjudicator took account can be explained under five heads.

[7] Firstly, the adjudicator had before him the appellant's passport which had been issued in Riyadh on 7 May 1994, replacing a passport which he had held when he entered Saudi Arabia in 1992. On the passport, his occupation was given as "labour" while in the interview of 16 May 1995 he said that he had worked in a family clothes shop, his family owning properties and shops in Pakistan, and that he had given his occupation as "labour" in order to avoid delay in the issue of the passport. The adjudicator accepted that an asylum seeker may require to provide false information in order to leave the country in which he fears persecution, but pointed out that by 1994 the appellant had left Pakistan, apparently having done so using a passport issued in his own identity and without difficulty, which suggested to the adjudicator that the Pakistani authorities had no real interest in the appellant.

[8] Secondly the adjudicator referred to the circumstances of the appellant's asylum application. As we have mentioned, the appellant maintained that an application for asylum had been made on his behalf before the expiry of the initial six months from his arrival in the U.K. The adjudicator considered that suggestion, but came to the conclusion that it had not been substantiated that any such application had been made. He asked Mr. Singh whether the claim could be substantiated and received the reply that Mr. Singh was not in a position to substantiate it. Accordingly, the adjudicator took the view that the appellant's credibility was damaged, not merely by his failure to claim asylum on arrival in the United Kingdom but by failure to claim asylum until after he was apprehended by immigration officers, after his leave had expired.

[9] The third matter relates to a demonstration which took place in Jhelum in Pakistan on 1 May 1992. The FIR above mentioned was before the adjudicator with a translation which, however, was not certified or otherwise authenticated. On the face of the translation, the appellant's name appears as one of a number of persons about whom police were making enquiries. There is some doubt, in the information before us, as to what exactly was supposed to have taken place at the demonstration. The demonstration was mounted by members of SSP, the party to which the appellant claims to belong. At his interview, the appellant explained that fighting broke out at the demonstration. The appellant is recorded as explaining that they used to hold demonstrations against the Shia attitude. The record continues:

The appellant's claim as presented to the adjudicator was that the FIR contained a murder charge against him instigated by the Shia faction as a result of these events. The translation of the FIR also contains a narrative of the demonstration, which is broadly to the effect that a magistrate had called on the demonstrators to cease and that the police had intervened when they did not do so. The adjudicator took the view that the material before him was of very low evidential value, even in the context of what is normal in immigration appeals and concluded that there was no convincing evidence before him as to the appellant's role or involvement.

[10] The fourth matter concerned a claim by the appellant that he had remained in hiding in Jhelum for four months after the demonstration before leaving for Saudi Arabia. The appellant claimed that he was fired at by Shias while riding a motor bicycle on 30 August 1992. The adjudicator took the view that there was an inconsistency between his account of this incident and his claim to have been in hiding and thought that this claim lacked credibility.

[11] The final matter concerned what happened when the appellant was in Saudi Arabia. The adjudicator noted that the appellant went to Saudi Arabia in September 1992. He claimed that he was threatened in Saudi Arabia in June 1993 but did not leave that country until September 1994. The adjudicator took the view that even taking account of the appellant's explanation that there had been a delay in obtaining a United Kingdom visa, the appellant had failed to account for a substantial part of the time spent in Saudi Arabia and that this also damaged his credibility.

[12] Having considered these matters, the adjudicator set out his conclusions given above.

[13] The adjudicator went on to refer to a Tribunal decision in a case by the name of Khokar which held, putting the matter very briefly, that the fact that a person was being sought by police authorities with a view to prosecution was not in itself a ground for holding that he had a fear of persecution. The adjudicator indicated that a similar view might be taken in this case. On the face of the decision, there might appear to be room for argument that this part of the adjudicator's opinion represented a separate and independent ground for refusal of asylum. The point is not, however, clear cut and counsel for the Secretary of State accepted that this part of the adjudicator's decision should not be read as separate and independent. He therefore accepted that if the criticisms made on the appellant's behalf in regard to the earlier part of the decision were well-founded then this part could not stand on its own. In these circumstances, it is not necessary to explain any further what the adjudicator said on this point. Thereafter, the adjudicator considered the question of deportation, but it was accepted by both sides before us that deportation really followed on whatever decision might be taken in regard to the refusal of asylum.

[14] At the outset of his argument, Mr. Bovey, who represented the appellant, referred to Vilvarajah v. The United Kingdom [1991] 14 EHRR 248 and Smith and Grady v. The United Kingdom [2000] 29 EHRR 493 and submitted that the effect of these decisions was that it was necessary to scrutinise closely and rigorously the decisions of immigration authorities in a process of judicial review. It had been argued in these cases that the U.K. immigration system did not meet the requirements of Article 6 of the E.C.H.R. The European Court had accepted that the availability of judicial review was a sufficient compliance with Article 6 of the Convention but only on the basis that a close and rigorous scrutiny was applied to immigration decisions. The factors to bear in mind in assessing an applicant's claim were that there was often no corroboration and therefore, as was set out in the UNHCR handbook, the appellant's account, if credible, should be given the benefit of the doubt. In assessing credibility, attention should be paid to cultural differences and it was quite acceptable for a person not to be prepared to give a full background, particularly when an application was being made from outside the United Kingdom: see ex parte Patel 1986 Imm. A.R. 208. In Daljit Singh v. The Secretary of State for the Home Department 2000 S.C. 219 it had been recognised that particular care was required in assessing credibility. The proper approach for adjudicators was explained in ex parte Mutuli, a decision of Forbes J. dated 23 October 1997. The proper approach was for adjudicators to look at the applicant's story and see whether, if it were true, the appeal would succeed and then proceed to examine it against the background of the country in question. Similarly in McDonald on Immigration 5th edition, paragraph 12.28 it was emphasised that unsupported assertions that a witness was not credible were no longer acceptable. Reference was also made to ex parte Doody 1994 1 AC 531 and Ibrahim v. The Secretary of State for the Home Department 1998 1 N.L.R. 511. The adjudicator's reasoning in the present case was curious. Omissions and inconsistencies were each apparently given the same weight and no factors were isolated as crucial or determinative. The result was that none of the factors referred to could be put aside as de minimis and if even one was irrational then the decision fell. With regard to the discrepancy over the applicant's occupation, and his leaving Saudi Arabia, the adjudicator had failed to deal with the evidence of threats being made in Saudi Arabia which provided a reason for the applicant to leave that country, akin to his reason for leaving Pakistan. In regard to the passport, and the appellant's ability to leave Pakistan, there had been no attempt to assess conditions in Pakistan and to determine whether there were checks which could have created any difficulty for the applicant in leaving that country if the police were looking for him. Even in the United Kingdom, it was not necessarily the case that there were checks against outstanding arrest warrants when passports were being issued a person seeking to leave the country. The adjudicator was not entitled to rely on any personal knowledge. As regards delay in applying for asylum, the appellant had given an explanation in his interview. He had given papers and instructions to his solicitor. When he had entered the United Kingdom he had not had the intention to stay permanently and that is why he had said he would only stay three weeks. He had wanted to watch the situation in Pakistan where his properties were and he wanted to return there when conditions were right. The adjudicator had failed to deal with that explanation. In any event, this was a case in which peripheral issues were coming to dominate the question of credibility as against any proper att

[15] On behalf of the respondent, Mr. Lindsay submitted that it was necessary to consider first what the appellant's claim was. According to the submissions it was based on two limbs, the first being the fear of the Shias who had tried to shoot him when he was on a motorcycle: it was implicit in that claim that he claimed the State could not protect him against persecution from that source. The second limb was the prosecution by the police and counsel took issue with the suggestion that that prosecution was politically motivated. In assessing the reasons stated by the adjudicator it must be recalled that the Asylum Appeal Procedure Rules 1996 had been amended, as compared with previous sets of rules, to emphasise that the statement of reasons should be concise. The object of this change was to put an end to repeated attempts, in cases such as ex parte Amin supra, to require every minor detail to be dealt with by the adjudicator in his written reasons. The decisions in Daljit Singh and Jasvin Singh (1 August 2001 unreported) showed that credibility might require special attention, but the test as to the adequacy of the reasons was the Wardie test, namely whether there was real and substantial doubt about the validity of the determination. In considering the reasons, it was necessary to look at the situation as it had been before the adjudicator and to disregard any attempts to provide explanations which had not been before him. What the adjudicator had done was to point to obvious holes in the appellant's story and to the absence of explanation for those holes. All the issues on credibility had been adverted to in the Secretary of State's refusal letter so that the appellant was fully on notice that these points required to be dealt with. So far as the context point was concerned, there were at least three passages in the decision which showed that the adjudicator had correctly taken that into account. The adjudicator's reasons were in themselves acceptable reasons, within the band of reasonableness of the decision.

[16] We have thought it necessary to set out the matters which were before the adjudicator, his reasons and the submissions made to us in some detail. When, however, it comes to the actual decision of this appeal, it seems to us that we can be relatively brief. We should first observe that we do not accept that the decision in ex parte Mutuli supra sets out guidance of an authoritative kind which should be applied in all cases. That was a decision on an application for leave to apply for judicial review and all that was decided was that leave should be granted. Neither it nor the opinion of Turner J. in ex parte Hussain (25 April 1996) nor the decision of the Immigration Appeal Tribunal in Guine v. Home Secretary (9 August 1996), which was also referred to in ex parte Mutuli seem to us to be of any real assistance in the present case. The decisions, and other authorities such as the UNHER Handbook, rightly, in our view, emphasise that credibility is an issue to be handled with great care and sensitivity, and that lack of credibility, on peripheral issues or even on material issues, is not to be made an easy excuse for dismissing a claim by an applicant who comes from a state or situation in which persecution is an established fact of life. It does not, however, in our opinion, follow that the question of the applicant's credibility can be set aside or that the account he gives is not to be tested. In the present case, the real issue is whether the appellant is giving an account of his reasons for leaving Pakistan and coming to the United Kingdom which can be believed at all. It is true that one factor bearing on the judgment on any such issue is whether the events described by the applicant can be events of a kind which could well happen in the country concerned. The fact that there is consistency between the narrative and the known situation in the state from which an applicant has come, however, can only be a part of the judgment as to whether the particular applicant or appellant is a person who is in genuine apprehension of persecution. As we have said, we accept, without reservation that credibility is an issue which must be approached with care and with sensitivity to cultural differences and the very difficult position in which applicants escaping from persecution often find themselves for a variety of reasons. It is, however, a matter of everyday experience that the credibility of witnesses can, and often must, be tested by examining what they say in regard to peripheral matters as well as central ones. The United Kingdom system of immigration control presupposes that the credibility of applicants has to be judged and, if a judgment is to be made, it is very difficult to see that it can be made without reference to the ordinary tests of consistency and inconsistency, always applied with due sensitivity.

[17] Bearing these considerations in mind we have looked carefully at the reasons set out by the adjudicator. It is not, of course, for us to decide whether the adjudicator's judgment was right or wrong as a matter of fact. The question is whether the view at which he arrived was one which a reasonable adjudicator could reach on the material before him, applying the proper tests in the proper way. In our view, the decision in this case passes that test. There was, in our view, a real question as to how the appellant was able to leave Pakistan on a passport bearing his own name and date of birth if he was being sought by the authorities. There is a real question as to how it could come about that the appellant could be the subject of a shooting incident when riding a motorcycle in Jhelum, while supposedly in hiding. There was a real question as to why the appellant spent so long in Saudi Arabia before attempting to reach the United Kingdom. There was a real question as to why the appellant did not apply for asylum within a reasonable time after his arrival in the United Kingdom and as to why he only applied for asylum when he was apprehended after the expiry of his permission to remain. In that connection, it seems to us that the adjudicator was well entitled to take the view that it had not been shown, with any degree of probability, that an earlier application for asylum had been made, or even instructed.

[18] There were, therefore, a series of questions which required answers or explanations. The explanations that were available were of the slightest and the appellant did not give evidence to add to them. That was a factor which the adjudicator was, in our view, entitled to bear in mind to the limited extent to which he did employ it. In all the circumstances, therefore, we are not satisfied that the adjudicator erred and this appeal falls to be refused.