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Scottish Court of Session Decisions
You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Massih, Re [2002] ScotCS 323 (17 December 2002)
URL: http://www.bailii.org/scot/cases/ScotCS/2002/323.html
Cite as: [2002] ScotCS 323

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Massih, Re [2002] ScotCS 323 (17 December 2002)

OUTER HOUSE, COURT OF SESSION

P805/02

 

 

 

 

 

 

 

 

 

 

OPINION OF LORD JOHNSTON

in petition of

ABDUL MASSIH

For

Judicial Review of a decision of the Immigration Appeal Tribunal to refuse leave to appeal against a decision of the Adjudicator

In turn the Petitioner attacks the decision in its substance as well as the decision of the Appeal Tribunal not to grant.

________________

 

 

Petitioner: Simpson; Bennett & Robertson

Respondent: Drummond; H F Macdiarmid

17 December 2002
  • The petitioner is Indian National. He arrived in this country in August 2000 clandestinely hidden in a lorry. He claimed asylum on 21 October 2000. The matter came before an Adjudicator whose determination was promulgated on 5 June 2001. The substance of her decision is in the following terms:

    • "[29] Having consider the statement lodged by the appellant the SEF and the Asylum Interview Record I was not satisfied that the appellant was a credible witness. His lack of knowledge of the Christian faith was not consistent with his evidence that he had been lifelong member of the church who had been baptised and had attended church regularly since being brought up as a Christian by his parents. He failed to mention Easter when asked at the SEF Interview to name religious ceremonies. He named New Year. At the hearing he could not explain the significance of the Holy Trinity in prayer and thought that the Pope was a priest.

  • I did accept the appellant's evidence that he had been part of a group involved in violent and armed confrontations with another group. I accepted that he had come to the attention of the police as a result of this behaviour. I did not accept his accounts of arrest and torture because of the discrepancy between the dates given at the SEF Interview and those given in oral evidence. The appellant's answers to the questions during the SEF Interview indicated a level of familiarity with the criminal prosecution system in India. They also indicated that he was able to obtain medical treatment without discrimination and the services of a solicitor. He had not been subjected to detention without charge or trial.

  • I could not accept the warrant as of any evidential value. It appears to be an original, hand-written on a photocopy of a warrant form. This first information report is given as 18 March 1999. The date of the warrant is given as 22 April 2000 and the date for appearance is given as before 21 July 2000. In his oral evidence the appellant stated that he had been arrested in February 1999 but at the SEF Interview the appellant stated that he had been arrested three times in May 1998, 10 October 1999 and January 2000. In the SEF Interview he stated that he had been released by his solicitor on 2 January and appeared at court on 6 March 2000. The date that he gave for his court appearance is before the date of the warrant. The date of the first information report does not appear to relate to any of the arrest dates.

  • If I was incorrect in rejecting the warrant then it would seem from the answers during the SEF Interview, that it was part of a judicial process designed to put the appellant on trial on charges which had been intimated to him and for which he had the services of a solicitor who was in a powerful position vis a vis the police and the court.

  • It was not credible that the appellant had obtained a passport in his own name, is a wanted man. If his passport was false then this is consistent with him fleeing prosecution as he stated in the SEF Interview. The appellant's whole evidence does not satisfy me that there was a reasonable likelihood that he was fleeing persecution.

  • I am unable to determine whether the Church letter is genuine. The appellant's lack of knowledge about the basic tenets of the Christian faith suggest that it is false. Even if genuine it does not bear to be evidence that the appellant was likely to be persecuted as a result of his religious beliefs.

  • I did not read para 6 of the Secretary of State's Decision Letter as an acceptance that, the appellant had suffered harassment from the Indian Authorities, as a result of his Christian faith. I read para 6 along with paragraph 7 as meaning that, on the hypothesis that the appellant was in fact a Christian, the Secretary of State did not accept that Christians in India constitute a persecuted group in terms of the 1951 Refugee Convention.

  • The Home Office Country Assessment tells me that: 'Christians constitute the second largest minority in India. The Indian authorities do not interfere with their internal religious activities, which may be conducted freely. There is constitutional freedom to produce and disseminate religious publications, including the Bible'.

  • The appellant has established that he has criminal charges outstanding against him. If returned to India as a failed asylum seeker without a passport he will be detained, questioned and handed over to the appropriate authority. The Home Office Country Assessment tells me that: 'According to information available to UNHCR such questioning in international airports had not led to the use of violence'. In the circumstances and against the background of the objective evidence I believe that there is no real risk that the appellant will, if returned to India, suffer ill-treatment amounting to persecution for any reason including his claimed membership of the Christian Church Shahker.

  • The appellant's immigration history is worthy of note. He travelled to Russia where he remained for about 15 days. He did not claim asylum there. He arrived in the United Kingdom in August 2000.

    • He did not claim asylum until October 2000 when his claim was made on his behalf by solicitors. As a general rule I would expect a person fearing persecution and claiming asylum in a place of refuge to seek protection immediately. The fact that the appellant did not do so is indicative of his having come to the United Kingdom for some other purpose.

  • The conclusion under the 1951 Refugee Convention is dismissed.

    • Conclusions and Determination - European Convention

  • My adverse findings on credibility make it unnecessary to consider Articles 3, 10 and 11 in detail.

  • The Home Office Country Assessment (4.8) tells me that: 'India has an independent judiciary with strong constitutional safeguards.... When legal procedure function normally, they generally assure a fair trial.. Defendants have the right to choose counsel from a bar that is fully independent of the government. There are effective channels for appeal at most levels of the judicial system.... Free legal services are available for everyone whose total income is less that 1,000 rupees.

  • I am fortified in my conclusion by the comments made by Lord Justice Robertson in Turget (2000 ImmAR 306) when he states at page 322: 'The crucial question which the Secretary of State had to make up his mind was whether substantial grounds had been shown for believing Mr Turget, if expelled to Turkey. He would face a real risk of being subjected to treatment contrary to Article 3'. In applying my mind to that question I am not satisfied that substantial grounds have been shown for believing that the appellant, if returned to India would face a real risk of being treated contrary to articles 3, 6, 9, 10 and 11.

  • I therefore dismiss the appeal."

  • Counsel for the petitioner attacked various aspects of this decision essentially on the issue of credibility. He submitted particularly that the Adjudicator had attached too much weight to apparent discrepancies in dates given by the petitioner respectively at the original interview and in oral evidence to the Adjudicator when he alleged he had been tortured. He submitted that the Adjudicator had not given proper weight to the problems of being a Christian in Hindu India and he made a number of references to a document prepared by the Home Office entitled "India Country". Given that it was accepted that the petitioner had been engaged in inter-religious strife in India and had criminal charges against him the Adjudicator had paid too little weight to that matter in determining that there was no well-founded fear of persecution. In any event she had applied the wrong test both in that respect and in relation to the test to be applied with regard to a claim for refugee status under the 1951 Convention and indeed in relation to the separate issue with regards to Human Rights. That being so, counsel submitted that equally since the decision of the Tribunal was based on the assessment of credibility by the Adjudicator the refusal of leave should also be reduced. Counsel went on to submit in any event the petitioner had not been given the genuine benefit of doubt which the Adjudicator was obliged to reply in issues of credibility and accordingly her decision could not stand.

  • Miss Drummond appearing for the Secretary of State submitted that the Adjudicator properly approached the questions before her on a rational and evidential base achieving a decision which was discernible as to its reasons informing the petitioner as to why the application had been refused. She had not misdirected herself in respect of any issue of law in relation to either the Refugee Convention or the Human Rights Convention.

  • Both parties referred me to Asif v The Secretary of State for Home Affairs 1999 SLT 890 and Singh v Secretary of State for Home Affairs 2000 SC 2019. Reference was also made by counsel for the petitioner to certain passages in McDonald's Immigration Law and Practice.

  • I do not consider any issue of law arises in the case beyond the test to be applied by this Court reviewing the decision of an adjudicator which is to the effect that reasons must be found for the decision which are rationally and evidentially based.

  • I am in no doubt in this case that the Adjudicator has given sufficient reasons within the context of what is said in Singh as to what is the true role of the adjudication system, to justify her decision. She was entitled in my view to be impressed or influenced of it by the discrepancies that the petitioner gave in respect of dates of alleged torture and she was equally entitled to take into account the overall position with regard to his involvement in violence in the Indian State which had not been referable to anything that was either induced or aided by the State. I am not impressed with the general submission made by counsel for the petitioner against the background of religious unrest between Hindus and Christians. That would not in itself be sufficient to justify an asylum order being granted. In any case there must be special reasons particular to the relevant application being considered.

  • In these circumstances it is my opinion that the Adjudicator has produced a decision which can be defended rationally before this Court and I will not interfere with it. It follows therefore that I will also not interfere with the decision of the Tribunal to refuse leave to appeal.

  • In these circumstances this petition is dismissed.

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