The Queen v Immigration Appeal Tribunal and Others
| Jurisdiction | England & Wales |
| Judge | MRS JUSTICE SMITH |
| Judgment Date | 26 July 2000 |
| Judgment citation (vLex) | [2000] EWHC J0726-11 |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | Case No: CO/488/2000 |
| Date | 26 July 2000 |
[2000] EWHC J0726-11
IN THE SUPREME COURT OF JUDICATURE
QUEEN'S BENCH DIVISION
CROWN OFFICE
Royal Courts of Justice
Strand, London, WC2A 2LL
Mrs Justice Smith
Case No: CO/488/2000
Miss Chapman Appeared on behalf of the Applicant
Mr A Underwood Appeared on behalf of the Respondent
In this asylum case, the applicant Paviter Singh, who is an Indian national, seeks judicial review of the decision of the Immigration Appeal Tribunal (IAT) on 13 th November 1999 when it refused leave to appeal against a decision of a Special Adjudicator dated 7 th October 1999. The Special Adjudicator found that the applicant who is a Punjabi Sikh had a well-founded fear of persecution in the Punjab. However, he considered that it would not be unreasonable or unduly harsh for him to relocate elsewhere in India and rejected the his appeal from the Secretary of State's decision to refuse him refugee status.
Article 33(1) of the 1951 United Nations Convention relating to the Status of Refugees (the Convention) provides:
No contracting state shall expel or return a refugee in any manner whatsoever to the frontiers of territories where his life or freedom would be threatened on account of his race, religion, nationality, membership of a particular social group or political opinion.
By Article 1A, a 'refugee' is defined as a person who 'owing to a well founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country.'
In R v Secretary of State for the Home Department and the Immigration Appeal Tribunal ex parte Robinson [1997] INLR 182, the Court of Appeal held that the question of whether a person might safely live in another part of his own country where he has no present fear of persecution, goes directly to the question of whether he is a refugee entitled to protection under the Convention. The decision maker should ask whether the applicant can find effective protection in another part of his own country to which he or she may reasonably be expected to move. Put another way, the question may be asked whether it would be unduly harsh to expect the claimant to move to another less hostile part of his own country.
In the present case, the Special Adjudicator accepted the applicant's account of his history. Since 1981 he had been a supporter of the Khalistan Liberation Forces, (KLF) a Sikh separatist movement which was a banned organisation. In 1981, the applicant was only 11 years old. From that time he had listened to speeches, passed messages and given food and shelter to members of the group. Although some members of the group used violence including firearms, he had not done so. Between 1984 and 1990, he had been arrested 4 times on suspicion of militant involvement. During detention he had been seriously ill-treated to an extent which amounted to persecution. In 1991, after being blamed for a shooting incident in which he had not been involved, he moved from his village in the Punjab to Tata, Maharasthra in order to avoid a further arrest. He stayed there for 6 months and was not troubled by the authorities during that time. He returned home in 1992, thinking it would be safe to do so but within a short time, several militants in the organisation were killed. He then moved to Uttar Pradesh where he had relatives with whom he stayed for about 3.5 years. He did not come to the attention of the authorities in any way during that time although the Punjab Police continued to come to his family home on occasions. He returned home to the Punjab in 1995, thinking it would be safe to do so, as all his militant former friends were now dead. However, soon afterwards, the Chief Minister of the Punjab, Beant Singh, was murdered and the police arrested many who had been involved in anti-government activity. He decided to leave India. He made his way to the UK via Nepal and Prague and arrived in December 199He applied for asylum in January 1996.
His application was refused by the Secretary of State in May 1996 and he appealed. The decision of a Special Adjudicator in 1997 was overturned on appeal to the IAT and the case was sent for re hearing by another Special Adjudicator. During this time, in February 1998, the applicant married a British citizen who already had a child. A child was born to the couple in December 1998. At the hearing before the second Special Adjudicator, there was no formal evidence about his family status, but it is accepted that the Special Adjudicator knew of it and the applicant's wife and young child were present at the hearing. Following the dismissal of his appeal to the Special Adjudicator in October 1999, the applicant sought leave to appeal to the IAT as required by Rule 13 of the Asylum Appeals (Procedure) Rules 199The notice of appeal complained that the Special Adjudicator had misdirected himself in finding that it would not be unduly harsh for the applicant to relocate to another part of India. The Chairman of the IAT refused leave, saying that the Special Adjudicator had considered that there were other parts of India to which the applicant could go. He said that the Special Adjudicator appeared to have considered all the evidence and had properly directed himself as to the standard of proof. Read as a whole, the decision was a full fair and reasoned review of the applicant's case. In this application for judicial review it is said that the decision of the IAT Chairman was irrational. Consideration of that contention requires an analysis of the Special Adjudicator's conclusion that it would not be unduly harsh for the applicant to relocate in another part of India.
In reaching his decision the Special Adjudicator referred to the background material provided by the Home Office on the present state of affairs in India. Sikhs in the Punjab were no longer at risk of persecution on the ground of their religion alone. Support for militants had diminished and by 1998 the Sikh Separatist movement was to a large extent a spent force. However the grievances behind the KLF movement had not been resolved. Civil rights had improved generally in recent years. People had much less to fear from the Police and had greater confidence in seeking judicial recourse if treated improperly. However, the situation was still far from perfect. Ill treatment in custody remained a serious problem. It was against that background that the Special Adjudicator found that the applicant still had a well-founded fear of living in the Punjab.
The Special Adjudicator then turned to consider the question of internal flight and posed two questions: first would it be safe for the applicant to live in another part of India and, if it were, would it be reasonable for him to be expected to go to that safe haven? The applicant's evidence on the first point was that he could not live safely in any other part of India because the Punjab Police circulated lists of wanted persons to other areas. He said that Sikhs were sought by the police even in the large cities such as Delhi and Bombay. When it was put to him that the KLF was a spent force, he said that the authorities were suspicious that Sikh militants from the Punjab were joining with the militants seeking the independence of Kashmir. As to the second issue, he said that it would be very difficult for him to live in another area. While in Tata he had been unable to find work at all. Tata is an industrial area and he is a farm worker, not an educated man. He was not qualified for any available work. The languages spoken in Tata are Marati, Hindi and Bengali. The applicant spoke Punjabi and although he could understand a little Hindi, he could not speak well enough to train for industrial work. He came to feel that he was a burden on his relatives, not least because his presence made them feel insecure. In Uttar Pradesh he lived with relatives, who were Sikh and spoke Punjabi. He did unpaid work for them in return for his keep. This could not continue indefinitely. Again, he felt he was becoming a burden to his relations. He said that the present situation was that he now had no contacts in Uttar Pradesh and the economic situation was such that farmers who had always lived there were leaving.
As to the first issue, the Special Adjudicator considered background material supplied by the Home Office. He noted but appeared to place little or no weight upon a report put in by the applicant, comprising an opinion from Dr Rai of the Sikh Human Rights Group. Referring to the material put in by the Home Office, he observed that there were large Sikh communities in most Indian cities and virtually all states. For example in Delhi, about 8% of the population were Sikh. During the period of Sikh militancy, there had been an increase in police surveillance of Sikh communities but this had been due to harassment of moderate Sikhs by militants. A CIRB report dated January 1999 opined that Punjabi Sikhs were able to relocate to other parts of India and that Sikhs outside the Punjab were feeling more secure than at any time since the 1984 riots. He noted that there were said to be no checks of any kind on a newcomer to any part of India even if that person were a Punjabi Sikh. Local police forces had neither the resources nor the language abilities to carry out background checks on people arriving from other parts of India. There is no system of registration and many have no identity cards. Sources disagreed as to whether the...
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