Petition Of Mohammed Afzal (ap) For Judicial Review Of A Determination Of Immigration Appeal Adjudicator
| Jurisdiction | Scotland |
| Judge | Lord Hardie |
| Neutral Citation | [2005] CSOH 49 |
| Date | 08 April 2005 |
| Docket Number | P1745/03 |
| Published date | 08 April 2005 |
| Court | Court of Session |
| Year | 2005 |
| OUTER HOUSE, COURT OF SESSION [2005] CSOH 49 | |
| P1745/03
| OPINION OF LORD HARDIE in the petition of MOHAMMED AFZAL (AP) Petitioner; for Judicial Review of (1) a determination of an Immigration Appeal Adjudicator promulgated on 11 July 2002 in terms of Sections 65 and 69(5) of the Immigration and Asylum Act 1999 and (2) the refusal of an application for leave to appeal by the Immigration Appeal Tribunal dated 7 August 2002 and promulgated on 12 September 2002 in terms of Rule 18 of the Immigration and Asylum Appeal (Procedure) Rules 2000. ________________ |
Petitioner: Devlin, Advocate; Allan McDougall & Co, Solicitors
Respondent: Miss Carmichael, Advocate; Solicitor to the Advocate General.
8 April 2005
Background
[1]The petitioner was born on 6 April 1977 and is a national of Pakistan. He entered the United Kingdom illegally on 26 September 2000 and claimed asylum on 4 October 2000 in the United Kingdom in terms of the Convention relating to the Status of Refugees 1951 (hereinafter referred to as "the Refugee Convention"). By letter dated 26 January 2001 his application was refused by the Secretary of State for the Home Department (hereinafter referred to as "the respondent"). He then appealed against the refusal of asylum to an adjudicator. The appeal was on the grounds that requiring the petitioner to leave the United Kingdom would be contrary to the obligations of the United Kingdom under the Refugee Convention and would also be contrary to the obligations of the United Kingdom under Article 3 of the European Convention on Fundamental Rights and Freedoms (hereinafter referred to as "ECHR"). The appeal was heard at Glasgow on 27 May 2002. The petitioner was represented at the hearing. The respondent was not represented. By determination dated 11 July 2002 the adjudicator refused the appeal. The petitioner then applied to the Immigration Appeal Tribunal (hereinafter referred to as "the Tribunal") for leave to appeal against the determination of the adjudicator. Leave to appeal was refused in terms of a determination dated 7 August 2002 and notified to the petitioner on 12 September 2002. Although in the present proceedings the petitioner seeks the reduction of the determinations of the adjudicator and of the Tribunal, counsel for the petitioner restricted the remedies sought to reduction of the determination of the Tribunal.
Submissions
[2]Counsel for the petitioner submitted that in the circumstances of this case no reasonable tribunal properly directing itself in the relevant law would have refused leave to appeal against the adjudicator's decision. That submission was based upon an analysis of the adjudicator's decision letter from which counsel invited me to conclude that the adjudicator had erred in law in a number of respects namely (i) by failing to apply the correct standard of proof; (ii) by failing to take account of all relevant considerations; (iii) by failing to consider all of the evidence "in the round"; (iv) by acting unreasonably in concluding that there were discrepancies between the petitioner's statement before the adjudicator and his answers to questions at his initial Home Office interview and (v) by making an incorrect finding on a material fact. In reply, counsel for the respondent invited me to conclude that there had been no error of law by the adjudicator and that his decision was justified and supported by adequate reasoning. In the whole circumstances counsel for the respondent submitted that the Tribunal had not erred in refusing leave to appeal.
[3]In the course of submissions, I was referred to the following authorities:
Associated Provincial Picture Houses v Wednesbury Corporation (1948) 1 K.B. 223; Council of Civil Service Unions v Minister for the Civil Service (1985) 1A.C. 274; R (Daly) v Secretary of State for the Home Department (2001) 2 WLR 1622; Bugdaycay v Secretary of State for the Home Department (1987) 1 A.C. 514; R. v Ministry of Defence, Ex parte Smith (1996) Q.B. 517; R. v Secretary of State for the Home Department Ex parte Adan, Subaskaran and Aitseguer (1999) Imm AR 521; Hariri v Secretary of State for the Home Department (2003) EWCA Civ 807; Syme & Jorro: "Asylum Law and Practice"; R v Secretary of State for the Home Department, Ex parte Sivakumaran (1988) 1A.C. 958; Karanakaran v Secretary of State for the Home Department (2000) 3 All ER 449; W 321/01A v Minister for Immigration & Multicultural Affairs (2002) FCA 210; Alam v Secretary of State for the Home Department 2004 SLT 839; P (Yugoslavia) (2003) UKIAT 00017; Mungu v Secretary of State for the Home Department (2003) EWCA Civ 360; Kasolo v Secretary of State for the Home Department (1996) IAT Appeal No. 13190; Asif v Secretary of State for the Home Department 2002 SC 182; Singh v Secretary of State for the Home Department 2000 SC 288.
Discussion
[4]The first issue for consideration is the role of the court in such petitions. Counsel for the petitioner, in addressing this issue, cited the following passage from the speech of Lord Cooke of Thorndon in R (Daly) v Secretary of State for the Home Department at paragraph 32:-
"And I think that the day will come when it will be more widely recognised that Associated Provincial Picture Houses Ltd v Wednesbury Corpn (1948) 1 KB 223 was an unfortunately retrogressive decision in English administrative law, in so far as it is suggested that there are degrees of unreasonableness and that only a very extreme degree can bring an administrative decision within the legitimate scope of judicial invalidation. The depth of judicial review and the deference due to administrative discretion vary with the subject matter. It may well be, however, that the law can never be satisfied in any administrative field merely by a finding that the decision under review is not capricious or absurd."
The first observation which I would make about that passage in Lord Cooke's speech is that it is obiter and must be read in the context of the distinction drawn by Lord Steyn in his speech between the Wednesbury or "traditional grounds of review" and the "approach of proportionality." Lord Steyn recognises that the difference between the two is one of intensity although he also acknowledges that most cases would be decided in the same way whichever approach is adopted. Although counsel for the petitioner referred me to the observations of Lord Cooke, he acknowledged that the test of reasonableness outlined by Lord Greene M.R. in Wednesbury was the correct test in the present case but under reference to Bugdaycay and R (Ex parte Smith) he submitted that the court required to subject the decision to the most anxious scrutiny. Having reviewed the various authorities cited it appears to me that in considering alleged infringements of the Refugee Convention or of the ECHR the court requires to subject the decision under review to careful scrutiny. Having said that, it is also clear that the court is exercising a supervisory jurisdiction and not usurping the role of the primary decision maker. In that regard, I would respectfully adopt the observations of Simon Brown LJ in R. v Secretary of State for the Home Department ex parte Turgut (2001) 1 All ER 719 at 724 where he stated inter alia:
"... it is clear that the court's role, even in a case involving fundamental human rights, remains essentially supervisory. It must, of course, as Lord Bridge observed in Bugdaycay v Secretary of the State for the Home Department ..., review the impugned decision (certainly in an art 3 case) with the 'most anxious scrutiny'. But is must not adopt the role of primary decision-maker."
Both counsel referred to documents other than the decision of the adjudicator and it seemed to be accepted that I could take into account all of the productions in assessing the decision of the Tribunal which is the subject of challenge by the petitioner. In undertaking this exercise I considered that the test to be applied by the adjudicator was whether it was established that on any reasonable view of the facts there is a serious possibility of persecution in breach of the Refugee Convention or whether there is a real risk of a breach of the petitioner's right under Article 3 of the ECHR. Moreover, in the context of the standard of proof I did not understand there to be any dispute between counsel that a decision-maker was not constrained by the rules of evidence applicable in civil litigation but rather was required to take into account all material considerations. Although the decision-maker could exclude from his consideration any matters about which he had no real doubt, he should not exclude matters from his consideration simply because he believed on the balance of probabilities that they had not occurred. In other words, there is a role for uncertainty in the decision making process. (Karanakaran v Secretary of State for the Home Department).
Failure by adjudicator to apply the correct standard of proof
[5]Counsel for the petitioner criticised two separate passages in the decision of the adjudicator and submitted that they established that the adjudicator had erred in law by applying the incorrect standard of proof. The first passage appears at paragraph 16 of the decision letter which is in the following terms:
"I did not believe the evidence of the appellant that he had become a member of the Pakistan Peoples Party in 1990. He was asked what age he was in 1990 and he said 'about 15 or 16'. The appellant was then asked whether he had been born in 1977 and he...
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