R (Chinder Singh) v Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judgment Date | 04 August 1998 |
| Date | 04 August 1998 |
| Court | Queen's Bench Division |
Immigration Appeal Tribunal
His Honour Judge D S Pearl (President) D A Lamb Esq, E C Brown Esq
C McGinley for the appellants
D Ramsden for the respondent
Cases referred to in the determination:
Sivakumaran and ors v Secretary of State for the Home DepartmentELR [1988] AC 958: [1988] Imm AR 147.
Rasaratnam v Minister of Employment and Immigration [1992] FC 706: [1992] 140 NR 138.
Thirunarukkarasu v Minister of Employment and Immigration [1993] 109 DLR (4th) 682.
Koyazia Kaja v Secretary of State for the Home Department [1995] Imm AR 1.
R v Secretary of State for the Home Department ex parte Chinder SinghUNK (CS, unreported, 9 September 1997).
Chahal v United KingdomHRCUNK (1997) 23 EHRR 413: (1997) 1 BHRC 405.
Bambagu Manzeke v Secretary of State for the Home Department [1997] Imm AR 524.
Anthonypillai Robinson v Secretary of State for the Home Department [1997] Imm AR 568.
Michael Mario v Secretary of State for the Home Department [1998] Imm AR 281.
R v Secretary of State for the Home Department ex parte Jasvir Shokar [1998] Imm AR 447.
Thiruchelvah Manoharan v Secretary of State for the Home Department [1998] Imm AR 445.
Michael Debrah v Secretary of State for the Home Department [1998] Imm AR 511.
R v Secretary of State for the Home Department ex parte Thayaparan IyaduraiUNK (QBD, unreported, 19 March 1998).
Charanjit Singh (13375) (unreported).
Parmar (14881) (unreported).
Sayandan (16312) (unreported).
Tarlochan Singh (17035) (unreported).
Balwant Singh (17018) (unreported).
Kamaljit Singh (17151) (unreported).
Jaworski (17152) (unreported).
Jaswinder Singh (G008) (unreported).
Jasvir Singh (G0014) (unreported).
Sarabjit Singh (HX/60028/96) (unreported).
Asylum — appeals by Sikhs from the Punjab — whether on the facts the appellants had well-founded fears of persecution — whether, if so the internal flight option was available — conflicting documentary evidence on conditions in the Punjab — that evidence examined and evaluated.
Three separate appeals heard together as raising the same issues. The appellants were Sikhs from the Punjab who had been refused asylum by the Secretary of State. Their appeals had been dismissed by special adjudicators: in one case the adjudicator had found the appellant had not shown a well-founded fear of persecution if returned to the Punjab. In the two other cases the adjudicators had concluded that the appellants had shown a well-founded fear of persecution in the Punjab, but the internal flight option was open to them.
These findings were challenged on appeal. The adjudicators and the Tribunal were presented with a large number of reports and opinions on conditions in the Punjab: there were significant conflicts between the opinions expressed. The Tribunal closely analysed that material and assessed its relative reliability.
Held:
1. On the facts, the decisions of the special adjudicators were correct: the appeals were dismissed.
2. It was necessary to give careful scrutiny to the qualifications of those who held themselves out to be experts on the Punjab, and on examination a number of the reports did not have the authority they claimed.
Determination
Preliminary Observations
All three appellants in this case appeal from decisions of special adjudicators who had dismissed their respective appeals from decisions of the Secretary of State to refuse their applications for political asylum.
In the case of Chinder Singh, the appeal is from the determination of Mrs R Swanney in a determination promulgated on 21 January 1998. The decision of the Secretary of State in that case was taken on 12 June 1996 to give directions for removal from the United Kingdom under section 16(1) of the Immigration Act 1971 and to refuse the grant of asylum under paragraph 180D of HC 725. In the case of Harjit Singh, the appeal is from the determination of Mr M E Deans in a determination promulgated on 6 November 1997. The decision of the Secretary of State in Harjit Singh was taken on 14 August 1997 to give directions for removal from the United Kingdom and to refuse the grant of asylum under paragraph 336 of HC 395. Finally, in the case of Onkar Singh, the appeal is from the determination of Mrs R Swanney in a determination issued on 30 January 1998. The decision of the Secretary of State in that case was dated 29 September 1997 to give directions for removal under section 16(1) and to refuse the grant of asylum under paragraph 336 of HC 395.
All three cases were listed to be heard, together with two other related cases, in Glasgow on 6 and 7 July 1998. Because the issues which arise in these cases are of importance for a large number of other cases which are the subject of appeal or potential appeal both in Scotland and in England, it was thought desirable for the matters to be listed before a panel of five members (the President, the two legal members who sit in Scotland and two non-legal members). In the result, the other two cases, namely those of Surjit Singh (CC/57715/97) and Balhar Singh Bassi (CC/51578/97), were heard separately, and are the subject of a separate ruling in the case of Surjit Singh and a separate determination in the case of Balhar Singh Bassi.
The three cases, the subject of this determination, were dealt with together.
The Tribunal in these three appeals sat initially as a panel of five members constituted under paragraph 12 of schedule 5 to the Immigration Act 1971: the President, the two members qualified under the terms of paragraph 7 of schedule 5 of the 1971 Act, and two other (non-legal) members. Unfortunately, at the very end of the submissions, one of the non-legal members made an observation in the hearing room, which prompted the appellant's representative to ask that he be asked to remove himself from the panel in these cases. The Tribunal adjourned to consider that issue, and, aware of the requirements of the principles of natural justice, took the view that this member be asked to withdraw. The Tribunal would then have been constituted of four members, which is not allowed for in the context of paragraph 12 of schedule 5 to the 1971 Act. The Tribunal, with the concurrence of the representatives, felt that the only way to deal with the matter would be for the other non-legal member to be asked to withdraw. This is in fact what he did. The Tribunal therefore was made up of the President and the two legal members qualified under the terms of paragraph 7 to schedule 5 of the 1971 Act. The two other members took no further part in the proceedings.
Factual Basis of three cases
The adjudicators in all three cases found the appellants to be credible. We set out in summary form the basis of their claims of asylum.
Chinder Singh:
He was born in 1945. He arrived in the United Kingdom in August 1991 and was granted leave to enter for six months as a visitor. He applied for asylum in November 1991. Mrs Swanney made a number of factual findings. First she said: ‘The appellant was and is not a member of any political party.’ There is of course some ambiguity in this finding, but we think that it is apparent from the totality of the determination that there is a ‘not’ missing in this sentence. Question 89 of the 1994 interview (court bundle p 23) says: ‘Have you ever been a member of any political party?’ to which the answer is ‘No. I am not a member, but because of my tea-shop the Party people used my shop.’ Thus we believe that Mrs Swanney's first finding of fact is that this appellant was not and is not a member of any political party. The other findings are (2) The appellant was sought out by the police to inform against members of the KFC and BTF who frequented his tea-shop; (3) The appellant was arrested and detained by the police on five occasions; (4) The appellant was ill-treated by the police while detained by them. Mrs Swanney stated further (at p 7 of her determination in this case) that he was detained for failing to do as the police asked with regard to obtaining information from the people who were visiting his tea-shop, and the treatment by the police as described by him amounted to torture.
Mrs Swanney then went on to consider whether the appellant had a well-founded fear of persecution if he were to be returned to the Punjab where the appellant came from. She concluded that ‘there is no significant risk of the police, in present day 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.’ It was not necessary, given this finding, for Mrs Swanney to go on to consider the question of the internal flight alternative. However, she did do so and decided that ‘I am not satisfied that it would be unreasonable or unduly harsh to expect the appellant to seek safety in another part of India.’
Harjit Singh:
He was born in 1966 and he entered the United Kingdom clandestinely in March 1995, claiming asylum in April 1995. Mr Deans makes the following findings of fact (p 50 of the court bundle). The appellant is a supporter of an independent Sikh homeland, and has been a supporter of the BTF (Bhindranwale Tiger Force) since 1985. He has put up posters for this organisation and he willingly provided food and shelter to members of the BTF. As a result of these activities he 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...
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