Chinder Singh And Others V. A Decision Of The Immigration Appeal Tribunal
| Jurisdiction | Scotland |
| Judge | Lord Hamilton,Lord Reed,Lord Justice Clerk |
| Date | 05 March 2002 |
| Docket Number | XA44/01, |
| Court | Court of Session |
| Published date | 05 March 2002 |
| SECOND DIVISION, INNER HOUSE, COURT OF SESSION | |
| Lord Justice Clerk Lord Hamilton Lord Reed
| XA44/01, XA45/01, XA40/01 OPINION OF THE COURT delivered by LORD HAMILTON in APPEALS TO THE COURT OF SESSION under Section 9 of the Asylum and Immigration Appeals Act 1993 by CHINDER SINGH, HARJIT SINGH and ONKAR SINGH Appellants; against Decisions of the Immigration Appeal Tribunal dated 7 July, 1998 and intimated to the respective Appellants on 4 August, 1998 _______ |
Act: Bovey, Q.C., Blair; Lindsay, W.S. (for Gray & Co., Glasgow)
Alt: Lindsay; H.F. Macdiarmid, Solicitor to the Advocate General for Scotland
5 March 2002
[1]These proceedings are appeals under section 9(1) of the Asylum and Immigration Appeals Act 1993 by Chinder Singh, Harjit Singh and Onkar Singh from final determinations by the Immigration Appeal Tribunal ("the Tribunal") all dated 7 July and intimated to the respective appellants on 4 August 1998 by which the Tribunal in each case refused an appeal by the relative appellant from a special adjudicator. Although the appeals to this court were not formally conjoined they were, in the circumstances later described, conveniently heard together, as were the appeal proceedings before the Tribunal. With the exception of an additional ground of appeal in the case of Chinder Singh, the appeals to this court raise the same issues.
[2]Chinder Singh was born on 10 July 1945. He is an Indian national of Sikh origin. He arrived in the United Kingdom on 20 August 1991 and was granted leave to enter as a visitor for six months. On 26 November 1991 he applied for political asylum. His application was refused by the Secretary of State in June 1996, a direction then being given for his removal from the United Kingdom. He appealed to a special adjudicator against that determination. After sundry procedure, which it is unnecessary to describe, his appeal was heard by Mrs. R. Swanney. By a determination promulgated on 21 January 1998 she dismissed the appeal. Although Chinder Singh did not give oral evidence before the special adjudicator, she was able on the basis of his responses to a questionnaire and at interview to make certain findings in fact in respect of his claim for asylum. These included findings to the effect that Chinder Singh ran a tea shop in the Indian Punjab, that he was not and is not a member of any political party, that he was sought out by the Indian police to inform against members of the Khalistan Commando Force and the Bhinderwale Tiger Force (both militant Sikh organisations), that he was arrested and detained by the police on five occasions and that he was ill-treated by them while so detained. Mrs. Swanney further found that Chinder Singh's detention was for failing to do as the police asked (that is, failing to obtain information from the people who were visiting his tea shop). She concluded that his treatment by the police while detained amounted to torture. However, having addressed the issue of whether Chinder Singh had a well-founded fear of persecution if he were returned to the Punjab (where he came from) she concluded, on the material before her, that "There is no significant risk of the police, in present Punjab, seeking out the appellant and I find that on the basis of the evidence before me it is not reasonably likely that the appellant would be persecuted if returned to India". In these circumstances it was unnecessary for her to make a determination on the "internal flight alternative" issue which was also raised before her. However, having considered that issue, she stated "I am not satisfied that it would be unreasonable or unduly harsh to expect the appellant to seek safety in another part of India".
[3]Harjit Singh was born on 10 March 1966 and is also of Indian nationality and Sikh origin. He apparently entered the United Kingdom clandestinely at about the beginning of March 1995. On 3 April 1995 he made a claim for asylum. This was refused by the Secretary of State by letter dated 8 August 1997. On 14 August 1997 Harjit Singh was served with a notice for removal to India. He appealed against these determinations to a special adjudicator. That appeal was heard by Mr. M.E. Deans who, by a determination promulgated on 6 November 1997, dismissed the appeal. Although no oral evidence was led before the special adjudicator he was able to make certain findings of fact on the written material presented. These included findings that Harjit Singh is a Sikh from the Indian Punjab and is a supporter of an independent Sikh homeland, that he has been a supporter of the Bhinderwale Tiger Force ("the BTF") since 1985, that he has put up posters for that organisation and willingly provided food and shelter to its members. Mr. Deans also found that as a result of these activities Harjit Singh was arrested twice in 1994 and detained by the police on each occasion for two to three days. During these detentions he was beaten up. He was charged with providing food and shelter for the BTF, but he was released after the village assembly intervened on his behalf and took responsibility for him. He went into hiding for some five or six months, during which time the police came to his house looking for him. His father was arrested by the police when they were looking for the appellant. Mr. Deans concluded that Harjit Singh had a well-founded fear of persecution were he to be returned to the Punjab. Having then considered the "internal flight alternative" Mr. Deans concluded that Harjit Singh had such an alternative. He observed "I am satisfied that the appellant could have sought safety in another part of India and given that he is a young single man I am not satisfied that it would be unreasonable or unduly harsh to expect him to have sought safety in another part of India". On that ground he dismissed the appeal.
[4]Onkar Singh, who was born on 15 June 1965, is also a Sikh of Indian nationality from the Indian Punjab. He entered the United Kingdom clandestinely in May 1995 and applied for asylum in June of that year. In September 1997 the Secretary of State refused to grant him asylum and gave directions for his removal from the United Kingdom. He appealed against these determinations to a special adjudicator. That appeal was also heard by Mrs. R. Swanney who, by a determination promulgated on 30 January 1998, dismissed the appeal. Although no oral evidence was led before the special adjudicator she was able to make certain findings of fact on the basis of written materials. She accepted Onkar Singh's account of his history as credible. She found that he was a member of the All India Sikhs Student Federation, had become involved in attending its meetings on a regular basis and had helped to arrange such meetings and with leafleting and posters. She also found that as a result of his activities he had been arrested by the police on four occasions, on two of which he was physically ill-treated; he had also been threatened with death. Mrs. Swanney concluded that Onkar Singh's treatment by the police amounted to persecution. She was also satisfied that there was a possibility that, were he to be returned to the Punjab, he would be tortured or mistreated in custody. Although not stated expressly the implication of her conclusions on this aspect of the appeal was that Onkar Singh's fear of persecution if returned to the Punjab was well-founded. She then considered the "internal flight alternative". Having considered the materials before her she concluded that she was not satisfied that it would be unreasonable or unduly harsh to expect him to have sought safety in another part of India. For that reason she dismissed the appeal.
[5]Each of Chinder Singh, Harjit Singh and Onkar Singh appealed under section 20 of the Immigration Act 1971 (as applied by the Asylum and Immigration Appeals Act 1993) to the Tribunal. It appears that a view was taken that these cases, together with two other related cases, might give rise to common questions of importance. Accordingly all five cases were listed to be heard together. In the event the two related cases were dealt with separately and nothing further need be said about them. The appeals of Chinder Singh, Harjit Singh and Onkar Singh were heard together before the Tribunal, initially constituted by five members comprising the then President, two legal members and two non-legal members. For reasons which it is unnecessary to discuss the two non-legal members withdrew before any decision was taken. The Tribunal, constituted by the then President and the two legal members, having heard the appeals in each case dismissed them. Against these determinations, Chinder Singh, Harjit Singh and Onkar Singh appeal to this court under section 9 of the 1993 Act which provides that any party to an appeal to the Tribunal may, where the Tribunal has made a final determination of an appeal to it, "bring a further appeal to [the Court of Session] on any question of law material to that determination".
[6]Before the Tribunal there was no dispute about the personal history of any of the appellants. Their respective accounts of their experiences, which had in each case been held as credible by the relative special adjudicator, were accepted as accurate. Nor was it disputed that in the case of each of Harjit Singh and Onkar Singh he had a well-founded fear of persecution if returned to the Punjab. What was in issue was (1) whether, having regard to the circumstances of Chinder Singh in the context of conditions in the Punjab, he had a well-founded fear of persecution if returned there, (2) whether in the cases of Harjit Singh and of Onkar Singh the determination by the relative adjudicator that the appellant had an "internal...
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