Petition Of Sukhwat Singh Gill For Judicial Review
| Jurisdiction | Scotland |
| Judge | Lady Dorrian |
| Neutral Citation | [2006] CSOH 78 |
| Court | Court of Session |
| Published date | 18 May 2006 |
| Date | 18 May 2006 |
| Year | 2006 |
| OUTER HOUSE, COURT OF SESSION [2006] CSOH 78 | |
| OPINION OF LADY DORRIAN in the Petition of SUKHWAT SINGH GILL Petitioner; for Judicial Review of a decision of the Secretary of State for the Home Department to certify his claim as "clearly unfounded" in terms of section 94(2) of the Nationality Immigration and Asylum Act 2002 ________________ |
Petitioner: Devlin; Anderson Strathern
Respondent: A F Stewart; J C Mullin; Office of the Solicitor to the Advocate General
18 May 2006
[1] By letter dated 25 October 2004, the Immigration and Nationality Directorate advised the petitioner that a decision had been made by the Secretary of State for the Home Department (a) to refuse the petitioner's application for asylum in the United Kingdom; and (b) to certify the petitioner's application as "clearly unfounded" in terms of the Nationality, Immigration and Asylum Act 2002 ("the 2002 Act"). In this petition, the petitioner seeks declarator that the decision to certify the claim as "clearly unfounded" was unreasonable et separatim unlawful and also seeks reduction of that decision.
Petitioner's submissions[2] In support of those claims, counsel for the petitioner drew attention to the statutory framework against which the petition arose. Section 82 of the 2002 Act makes general provision for a right of appeal to an adjudicator. That right is qualified by Section 94 of that Act, sub-section 2 of which provides that a person may not bring an appeal under Section 92(4) if the Secretary of State certifies that the asylum claim or human rights claim (or both) is or are clearly unfounded. In the case of certain listed States, (to which India was added in 2005), the Secretary of State is obliged to certify the claim unless satisfied that it is "not clearly unfounded". There is no practical distinction, it was submitted, between these two tests, under reference to the case of R ex parte Husan v The Secretary of State for the Home Department 2005 EWHC 189 (admin) and R (L and Another) v The Secretary of State for the Home Department [2003] 1 WLR 1230.
[3] Counsel submitted that the phrase "clearly unfounded" should be given the same meaning as "manifestly unfounded" in Section 72(2)(a) of the Immigration and Asylum Act 1999, under reference to Hansard HL, volume 638, column 342 per Lord Falconer of Thornton LC. He referred to R (Yogathas) v The Secretary of State for the Home Department [2003] 1 AC 920 in which the Home Secretary's consideration was described as a "screening process" in which the Secretary of State had to address his mind to the question of whether the claim is "so clearly without substance that the appeal would be bound to fail". Counsel submitted that the test of whether an application was "clearly unfounded" is capable of several interpretations namely (a) whether the application is capable of belief by an adjudicator and if so, whether it is capable of being within either convention; (b) whether an adjudicator could be reasonably and conscientiously and satisfied that the application must clearly fail; (c) whether the application is so clearly without substance that an appeal to an adjudicator would be bound to fail; or (d) whether it is plain that there is nothing of substance in the application.
[4] With that introduction, counsel turned to the reasons given in the decision letter which is 6/1 of process, submitting that there were two "limbs" to the reasoning in the decision letter: paragraph 17-24 which deal with the application for asylum and humanitarian protection; and paragraphs 25-30 which deal with the issue of internal relocation.
[5] Counsel submitted that the respondent erred in law in failing to ask whether the petitioner was a person who, owing to a well-founded fear of persecution, was unwilling to avail himself of the protection of that country. He submitted that Article 1A of the Refugee Convention 1951 set out two tests, namely, that first there is a well founded fear of persecution and second, that, owing to such fear, there is an inability or unwillingness to avail himself of the protection of his country of nationality. He referred to Adan v The Secretary of State for the Home Department [1999] 1 AC 293 at page 304B-E when Lord Lloyd of Berwick observed that nationals outside their country of origin and seeking asylum, must satisfy two separate tests "what may, for short, be called 'the fear test' and 'the protection test' ...". Counsel pointed out that there were two aspects to the "protection test" namely first, the question of ability to avail oneself of the protection of the country of origin and secondly, the question of willingness to do so. He drew attention to the opinion of Lord Justice Sedley in Svazas v The Secretary of State for the Home Department [2002] 1 WLR 1891 at page 1899B where he noted this second aspect of the protection test, saying:
".....even though the home State may be able to provide protection, the fear now justifiably felt by the individual may be such that he is unwilling to rely on the State to protect him. ........Whether or not the (applicant) is 'able' to avail himself of the [home] State's protection, such as it is, against police brutality, he may justifiably be unwilling to try."
[6] Counsel submitted that there was no attempt in the decision letter to consider whether the applicant was unwilling to seek protection. In failing to address that question, the respondent erred in law.
[7] Counsel's second proposition was that the respondent had erred in law in finding that the petitioner had failed to avail himself of the protection of his country of origin because he failed (a) to make a formal approach to the police, the Punjab State Human Rights Commission or the National Human Rights Commission; or (b) to raise proceedings before the Indian courts. He submitted that a person who, owing to a well founded fear of persecution, is unable or unwilling to avail himself of the protection of State agencies such as the police is not obliged to approach Human Rights organisations or raise proceedings in the courts of that country in order to qualify as a refugee. A person subject to persecution by the police may justifiably be unwilling to ask for their protection. Counsel submitted that the actions of rogue officials should be treated as the actions of the State for the purpose of considering a claim for asylum, under reference to the case of Vraw v M. I. M. A. [2004] FCA 1133 an unreported decision of the Federal Court of Australia. It was not the purpose of organisations such as the Punjab and National Human Rights Commissions to provide protection against criminal acts. Moreover, both offer redress after the events and protection after the event is not protection for the purposes of the convention. Reference was made to Kinuthia v Secretary of State for the Home Department
[2001] INLR 133.
[8] Counsel's third proposition was that the respondent failed to adopt the correct test for determining whether the petitioner had a well founded fear of persecution. Counsel submitted that the correct test is set out in a passage in Hathaway, Law of Refugees Status at page 125-126 where it is stated that:
"The most obvious form of persecution is abuse of human rights by organs of the State, such as the police and military. This may take the form of either pursuance of a formally sanctioned persecutory scheme, or non-conforming behaviour by official agents which is not the subject of a timely and effective rectification by the State. In such cases, it is clear that the citizen can have no reasonable expectation of national protection, since the harm feared consists of acts or circumstances for which governmental authorities are responsible ..."
Counsel then went on to refer to page 1897D-E of Svazas v Secretary of State for the Home Department [2002] 1 WLR 1891 where Lord Justice Sedley said:
"... The concept of 'non-conforming behaviour by official agents which is not subject to timely and effective rectification by the State' seems to me to give a precise edge to the convention scheme ... and to make the key distinction between State and non-State agents of persecution. While the State cannot be asked to do more than its best to keep private individuals from persecuting others, it is responsible for its agents unless it acts promptly and effectively to stop them."
In paragraph 22 of that same opinion, referring to a situation where the persecutors wear official uniforms, he went on to say:
"Rather than require to be satisfied that the State is actively or passively complicit in persecution by other citizens, the decision maker in a case like the present (which does not concern isolated rogue activity) is faced with the State's undoubted responsibility and must examine what the State is doing about it ...".
Counsel submitted that the petitioner's case does not involve isolated rogue activity. The question to be asked is whether the behaviour was subject to timely and effective rectification, a question which the respondent did not address.
[9] Counsel next addressed the issue of relocation, submitting that the respondent failed to give sufficient weight to the fact that the persecution feared by the petitioner was at the hands of State officials. He referred to Symes and Jorro on Asylum Law and Practice (2004) at page 223, paragraph 5.13 where the authors comment that "internal relocation will often be an inappropriate consideration where the persecution feared flows from the State." He then referred to the case of M.I M. A. v Jang [2000] FCA 1075 at paragraph 27 where the court stated:
"... However, where the feared persecution arises out of...
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