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You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Ahmad, Re Judicial Review [2003] ScotCS 126 (30 April 2003) URL: http://www.bailii.org/scot/cases/ScotCS/2003/126.html Cite as: [2003] ScotCS 126

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Ahmad, Re Judicial Review [2003] ScotCS 126 (30 April 2003)

OUTER HOUSE, COURT OF SESSION
	OPINION of LORD MACKAY OF DRUMADOON in the Petition of RANA MUKHTAR AHMAD, care HMIDC Dungavel, by Strathaven Petitioner; for Judicial Review of a decision by the Immigration Appeal Tribunal to refuse leave to appeal against the decision of the Adjudicator   ________________

Petitioner: Simpson; Campbell Smith, W.S.

Respondent: Drummond; H. MacDiarmid, Solicitor to the Advocate General

30 April 2003

Introduction

1. The petitioner, who is a national of Pakistan, left Pakistan on 25 February 2001. On 26 February 2001 he entered the United Kingdom on a false passport. He had been granted a transit visa enabling him to enter the United Kingdom, prior to his travelling on to Canada. On 8 March 2001 the petitioner was detained at Glasgow Airport for being in possession of a false passport.
2. Following his arrest the petitioner sought asylum in the United Kingdom. His application for asylum was refused on 4 April 2001. A "Decision to Issue Removal Directions to an Illegal Entrant - Application for Asylum Refused" was issued in respect of the petitioner. The petitioner appealed against that Decision. His appeal was heard before an Adjudicator at Glasgow on 8 February 2002. The appeal was refused and the Determination of the Adjudicator was promulgated on 18 March 2002. The petitioner then applied to the Immigration Appeal Tribunal, for leave to appeal against the Determination of the Adjudicator. That application for leave to appeal was also refused, by a decision of the Immigration Appeal Tribunal dated 16 April 2002. In this petition for judicial review, the petitioner seeks reduction of (a) the Determination of the Adjudicator dated 18 March 2002 and (b) the refusal of leave to appeal dated 16 April 2002. The petition came before me for a First Hearing, at which both the petitioner and the Secretary of State for the Home Department were represented by counsel.

Submissions for petitioner

3. In presenting his submissions, counsel for the petitioner explained that they fell into two chapters. He argued that the Adjudicator had erred in law, when she dealt with the issue of the credibility of the evidence the petitioner gave during the hearing before her. Counsel's submissions on this issue were said to have been foreshadowed by Article 8(6)-(9) of the petition. Those paragraphs assert that the Adjudicator had failed to seek guidance from UNCHR guidelines on the assessment of credibility. They criticise her grounds for rejecting the petitioner's evidence as implausible. They found, in particular, on the petitioner's membership of the Pakistan People's Party (PPP) as supporting the petitioner's contention as to the existence of political rivalry and tensions in Pakistan. Counsel for the petitioner also argued that the Adjudicator had erred in law in respect of her treatment of the issue of persecution, a line of argument that was foreshadowed in Article 8(1)-(5) of the petition. In summary, those paragraphs assert that in respect of the issue of persecution, the Adjudicator failed to define persecution correctly and applied a higher threshold than was appropriate for determining whether the petitioner had suffered persecution in Pakistan. Counsel for the petitioner intimated to the Court that he was not proceeding with the arguments referred to in Article 8(10)-(13) of the petition.
4. The only authority referred to by counsel for the petitioner was McDonald's Immigration Law and Practice, Fifth Edition. He referred, in particular, to paragraphs 12.21 and 12.22 to illustrate that an applicant for asylum must have a genuine and well-founded fear of persecution to come within the protection of the 1951 Geneva Convention Relating to the Status of Refugees. Counsel accepted that the burden of establishing a well-founded fear of persecution rests on an applicant for asylum (paragraph 12.24). On the issue of the approach to be taken when assessing the credibility of those seeking to establish that they are refugees, counsel referred to paragraph 12.28.
5. In developing his submissions, counsel for the petitioner accepted that the terms of paragraph 10 of her Determination confirmed that the Adjudicator had applied the correct burden of proof and the correct standard of proof. He also accepted that paragraph 17 of her Determination contained a very fair résumé of the background material about Pakistan, which had been before the Adjudicator during the hearing, as part of the Home Office bundle of productions.
6. In paragraph 13 of her Determination the Adjudicator summarised the evidence the petitioner gave in the following terms:

"The Appellant states that he left Pakistan on 25 February 2001. He belonged to the PPP and was harassed at the time when the Pakistan Muslim League (PML) were in government. The Appellant states that he was arrested on 3 occasions and tortured each time. He was unable to give details of the dates of the arrests. The Appellant advised that he left Dunyabur and went to live in Lodhran, thereafter had to go to Multan and then Karachi which was about 600 miles away. The Appellant stated that he was a worker with the PPP, not an officer but was on the front line and very active in arranging demonstrations. The Appellant worked as a farmer but was involved in PPP activities on 2 to 4 days per week. The Muslim League know who the Appellant was and the police did whatever the Muslim League wanted. The Appellant advised that no legal proceedings were taken against him, that he was held for the first time for 4 days, second time for 3 days and the third time for 5 days and during this period he was beaten up by the police. The Appellant said there was no redress for his complaints because everyone was in league with the Muslim League. The Appellant did not give details of any specific injuries but he advised that he got treatment from a private doctor as the state doctors were also in league with the Muslim League. The appellant advised that he was made to stand all night, given no food, sometimes hanged upside down and was punched and kicked in the stomach. The Appellant said that if he had stayed in Pakistan he would have been killed and if he went back he would be killed due to his membership of the PPP."

7. Paragraph 18 of the Adjudicator's Determination was in the following terms:

"My Findings of Credibility and Fact

I accept that the Appellant is a member of the PPP. I however find the rest of the Appellant's evidence is not credible. On the issue of persecution and ill treatment I find that the Appellant's evidence was implausible in many respects. The Appellant gave evidence with regard to 3 detentions at the hands of the police but was unable to give any details with regard to these or any real details. At one point in his evidence he stated that the arrests occurred 3 to 4 years ago but also said that the last one occurred 2 years ago. Although the detail of the torture which he had experienced was consistent with the Country Report evidence the Appellant did not detail any injuries that he had suffered and did not provide any medical evidence of the same. He did indicate that he would be able to get medical evidence but he had had plenty of time to do so and had not. I also found it implausible that the Appellant moved from place to place and went into hiding only to be found by the PML and he thereafter moved on to another place because he was sure that they would kill him if he did not. If they were following him intent on killing him it seems strange that they found him and then let him go so that he could then move on to another place rather than just killing him when they found him. It also seems strange that the PML would have been particularly interested in the Appellant given that he was not a prominent figure or official in the PPP nor it would appear was he a criminal suspect. It also seems strange, if things were as bad as the Appellant says, that he waited for a period of 2 years since his last arrest before leaving the Country. The appellant explained this by saying he was waiting for the political situation to improve but that it had not. However the Appellant's problem seems to be with the PML who were not in power after the Coup after October 1999. The appellant did not leave Pakistan until February 2001. I found it inherently improbable that he should only find it necessary to leave Pakistan once the party he feared were no longer in power."

8. Counsel analysed paragraph 18 as containing six reasons why the Adjudicator had held the petitioner's evidence not to have been credible. As the paragraph makes clear, apart from accepting that the petitioner was a member of the PPP, the Adjudicator rejects the rest of the petitioner's evidence. Those six reasons were as follows - (a) the petitioner was unable to give any dates or any real details of the three detentions he claimed had occurred; (b) the petitioner did not detail any injuries that he had suffered nor did he provide any medical evidence of them; (c) it was implausible that the petitioner had moved from place to place and gone into hiding, only to be found by the PML, and that he had thereafter moved to another place, for fear that they would kill him if he did not; had the PML been intent on killing him, it was implausible that they had let him go, rather just killing him where they found him; (d) it was strange that the PML would be interested in the petitioner given that he was not a prominent figure nor an official in the PPP; (e) it also seemed strange that the petitioner had waited a period of two years between the date of his last arrest, before leaving Pakistan and (f) that it was inherently improbable that the petitioner should only find it necessary to leave Pakistan, once the party he feared was no longer in power.
9. Counsel for the petitioner argued that even if the Adjudicator had been entitled to reject the appellant's evidence, she had not given proper reasons for rejecting the contention on behalf of the petitioner that he had in fact been tortured and thus been the victim of persecution. The evidence the petitioner had given was consistent with and accordingly supported by the background material about Pakistan, in the Home Office bundle. The petitioner was not to be blamed for any lack of medical evidence. It was argued that the Adjudicator had to deal with the issue of persecution separately. When rejecting the contentions that had been advanced on the petitioner's behalf, she ought to have given reasons for holding that the petitioner had not established that he held a well-founded fear of persecution. She had failed to do so. I was invited to sustain the two pleas-in-law for the petitioner.

Submissions for respondent

10. Counsel for the Secretary of State for the Home Department argued that the submissions on behalf of the petitioner should be rejected. She argued that the Adjudicator had not erred in law in rejecting the petitioner's evidence as incredible, nor had she failed to give reasons for doing so. Similarly the Adjudicator had not failed to address the issue of persecution, nor to give reasons for holding that the petitioner had not established that he had a well founded fear of persecution, in the event that he were to return to Pakistan. It was submitted that the Adjudicator had produced a rational Determination , which was properly reasoned. Neither the Determination that the Adjudicator reached, nor her reasons for that Determination were irrational. The Court should not interfere with the Adjudicator's Determination nor with the decision of the Immigration Appeal Tribunal to refuse leave to appeal against the Adjudicator's Determination.

Decision

11. I have reached the view that the submissions on behalf of the Secretary of State are to be preferred. In my opinion it is quite clear from the terms of paragraph 10 of the Adjudicator's Determination that she did not err in law in respect of the issues of the burden of proof and the standard of proof. Nor, very importantly, did the Adjudicator err in her approach to the assessment of the credibility of the evidence that the petitioner had given before her. In paragraph 18 of her Determination, the Adjudicator sets out detailed reasons for rejecting all the evidence that the petitioner gave, apart from the fact that he had been and remains a member of the PPP. That assessment of the petitioner's credibility follows upon paragraph 17 of a Determination, which was acknowledged by the petitioner's counsel to be a perfectly fair summary of the background material relating to Pakistan. On reading through the Determination, I find no indication that the Adjudicator ignored the background material that was before her, whether when addressing the credibility of the evidence that the petitioner gave or when addressing the issue as to whether the petitioner had discharged the burden of proving that he had a well founded fear of persecution arising out of his membership of the PPP. Moreover the terms of paragraph 18 of the Determination suggest that having identified the correct approach to assessing the credibility of an applicant for asylum (paragraph 10), the Adjudicator followed that approach. Indeed, on reading through the whole of the Determination, I find no indication that the Adjudicator acted in breach of UNCHR guidance in assessing the credibility of the petitioner's evidence. Although that particular allegation was not developed by counsel for the petitioner, during the course of his submissions, the approach followed by the Adjudicator when assessing the petitioner's credibility was entirely consistent with the passages in Macdonald's Immigration Laws & Practice to which I was referred.
12. In my opinion there is nothing irrational about the reasons the Adjudicator gave for having rejected the evidence of the petitioner as incredible. She was perfectly entitled to found on the petitioner's failure to provide dates and details as to three occasions on which he claimed to have been detained, the absence of medical evidence, and her assessment as to the implausibility of the petitioner's account of events, the improbability of the PML now taking action against the petitioner and the timing of the petitioner's departure from Pakistan. Nor can there be any suggestion that she ignored the fact that the petitioner was and remains a member of the PPP.
13. Turning to the issue of persecution, it is quite clear from paragraphs 20 - 25 of the Determination that the Adjudicator addressed this issue separately, notwithstanding the views she had formed as to the petitioner's credibility. On reading through those paragraphs, I find no support for the contention that she applied a higher threshold than was appropriate, when determining whether the petitioner had suffered persecution in Pakistan. When addressing the issue of persecution, and in particular whether the petitioner had a well founded fear of persecution in Pakistan, the Adjudicator was entitled to have regard to the fact that the PML is no longer in power in Pakistan. The Adjudicator was also entitled to rely on the fact that in a previous decision of the Immigration Appeal Tribunal, Sami Hussain v The Secretary of State for the Home Department, dated 6 September 2001, the Tribunal had held that the existing government in Pakistan has established a legal system adequate to provide protection for the ordinary citizens of Pakistan. The Adjudicator stated that she had come to the same conclusion. In my opinion it was open to her to do so.
14. In paragraph 23 of her Determination the Adjudicator stresses that each appeal has to be determined on its own facts. She states that she considered whether a general sufficiency of protection is available to the petitioner, having regard to the specific facts of his appeal. These facts obviously include (i) that the petitioner had been a member of the PPP, whilst the PML had been in power, (ii) that the PML lost power in October 1999 and (iii) that the petitioner did not leave Pakistan until February 2001. For the reasons the Adjudicator herself set out in paragraph 23, the Adjudicator was, in my opinion, perfectly entitled to hold that even if the petitioner had been ill-treated by the individuals he named, such ill-treatment did not constitute persecution and that, in any event, there is sufficient protection available in Pakistan to protect the appellant from the State. As ill-treatment by individuals cannot constitute ill-treatment for the purposes of acquiring status as a refugee, the Adjudicator was entitled to hold that the petitioner had not discharged the burden of proving that he had a well founded fear of persecution such as to entitle him to asylum under the provisions of the 1951 Geneva Convention. No criticism was made of how the Adjudicator had dealt with the issue of internal flight, as an alternative to international protection.
15. On the whole matter, therefore, I am perfectly satisfied that the Adjudicator was entitled to hold that the appellant had not discharged the burden of proof of having a well founded fear of persecution were he to return to Pakistan. It follows that the petitioner has also failed to establish any basis for reducing the decision of the Immigration Appeal Tribunal to refuse leave to appeal. For these reasons, I repel the pleas-in-law on behalf of the petitioner, sustain the pleas-in-law on behalf of the respondent and dismiss the petition.