LIAQAT ALI FOR JUDICIAL REVIEW v.
| OUTER HOUSE, COURT OF SESSION |
| P49/14A/99 | OPINION OF LORD CAMERON OF LOCHBROOM in the Petition of LIAQAT ALI Petitioner; for Judicial Review of decisions of the Secretary of State for the Home Department, a Special Adjudicator and the Immigration Appeal Tribunal ________________ |
Petitioner: Lazarowicz; Lindsays, W.S. (for Gray & Co., Solicitors, Glasgow)
Respondent: Dewar; H Macdiarmid
4 April 2000
The petitioner in this application for judicial review, seeks orders from the Court reducing one or both of two determinations, the first being that of the Special Adjudicator promulgated on 21 October 1998 and the second, the determination of the Immigration Appeal Tribunal made on 5 November 1998 refusing leave to appeal against the former determination.
The petitioner arrived in the United Kingdom on 9 November 1997. He sought asylum at the port of entry. His claim for asylum was refused by the Secretary of State in November 1997. On 2 December 1997 he was served with a notice of refusal of leave to enter giving directions for his removal to Pakistan. He then appealed against these directions to the Special Adjudicator. Before this Court information was given that the petitioner has now been granted exceptional leave to remain in the United Kingdom for a period of four years.
On 9 September 1998 the petitioner's appeal was heard before the Special Adjudicator. The Special Adjudicator heard oral evidence from the appellant. He also had certain documents placed before him at the appeal. He heard submissions both for the petitioner and for the Secretary of State. His determination was promulgated on 21 October 1998.
It is convenient at this point to set out the three grounds stated in the petition on which this determination is attacked. A fourth ground was not insisted in at the present hearing. The grounds are as follows:
"(i)(The Special Adjudicator) misdirected himself by applying the wrong test to the petitioner's application, in that his conclusion that the petitioner's fear of arrest and fear of prosecution was based on his finding in fact that there was a 'reasonable likelihood' that the petitioner was wanted as a genuine suspect for the killings on 4 August 1997. It is only an applicant, such as the petitioner, who in an application for asylum is able to satisfy a court or tribunal by making out his case to the requisite low standard of 'reasonable degree of likelihood'.
(ii)It is apparent that he concluded that the petitioner's fear of arrest and prosecution could not constitute persecution for a purpose recognised by the said 1951 Convention, and by so concluding he misdirected himself. In considering whether or not the petitioner's fear arose from such a reason, he should have taken into account the whole circumstances of the allegations made against the petitioner, the circumstances of his political and religious activity, the membership of his social group, the threats and actual violence carried out against him by his political and religious opponents, and his previous treatment by the police. He failed to do so. Further, given that he found the petitioner to be generally credible, the petitioner was entitled to 'the benefit of the doubt.' In the circumstances, he should have concluded that there was a reasonable degree of likelihood that the petitioner would be arrested and prosecuted if he were to return to Pakistan such as to give rise to a well-founded fear of persecution for a reason recognised by the said Convention. In particular, given his finding in fact that the petitioner had previously suffered torture at the hands of the police in Pakistan following complaints from a political opponent, he ought to have concluded that the petitioner was at risk of not receiving a fair trial and, given the circumstances of the petitioner's religious and political activity and membership of a social group, the petitioner was accordingly liable to persecution for a reason recognised by said Convention.
(iv)Giving the petitioner the benefit of the doubt, he ought to have concluded that he could be satisfied to the requisite degree of likelihood that the authorities in Pakistan were unwilling or unable to offer effective protection to the petitioner, given his findings in fact as to (a) the petitioner's previous treatment by the police; (b) the threats and actual violence of the petitioner's political and religious opponents; and (c) the nature and circumstances of the allegations made against him. Accordingly the petitioner was entitled to refugee status in terms of Article 1(A) of said Convention (as amended) and the Special Adjudicator erred in law by failing to so conclude."
I turn now to the determination itself. After setting out the circumstances of the hearing itself, the Special Adjudicator then said this:
"For the appellant to succeed, he must show that owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, he 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. For the appellant's fear of contravention to be well-founded means that he must demonstrate only a reasonable degree of likelihood of being persecuted for a Convention reason if returned to his own country, in accordance with Sivakumaran [1988] Imm. A.R. 147. In terms of Kaja [1995] Imm. A.R. 1, this standard of proof applies also to evidence of past events and, in terms of Sandralingham [1996] Imm. A.R. 97, the facts and circumstances which may be taken into account in determining this appeal are not restricted to those arising prior to the decision appealed against".
No criticism was directed by counsel for the petitioner to these statements and the tests to be applied in determining the matter with which the Special Adjudicator had to deal. Thereafter the Special Adjudicator sets out features of the documentary material placed before him and those parts of the petitioner's evidence which bore on the matters raised before the Special Adjudicator. No issue is taken with the manner in which this was done by the Special Adjudicator. The determination then continues as follows:
"I am satisfied, on the basis of the documentary evidence, as well as on the appellant's own account that the incidents he described on 11 January 1996 and 4 August 1997 took place in Shorkot and that his cousin was killed on 11 January 1996. In his ability to substantiate these parts of his account by reference to documentary evidence, the appellant has enhanced his credibility as a witness. In addition, I have had the opportunity of hearing his evidence and seeing him subjected to extensive cross-examination. While there were some discrepancies in his account, I am satisfied that the centrepiece is credible, notwithstanding inconsistencies, uncertainties or exaggeration, in accordance with Chiver (10758).
My decision is based on the following findings of fact established according to the standard of reasonable degree of likelihood. In 1990 the appellant became a member of Sipha-e-Sahaba-e-Pakistan (SSP), an organisation promoting the sectarian Sunni cause. As a result of his involvement in SSP, the appellant came to the attention both of the police and of political opponents supporting Shia organisations. In August 1992 the appellant was assaulted and stabbed by supporters of the Shi'ite political opponent, Altaf Hussain Shah. Prior to that, the appellant had been involved in one or two violent incidents in which blows had been exchanged. In 1993 the appellant was arrested by the police for the first time. Two Shias had been killed in his district and all the members of appellant's organisation were arrested. The appellant was detained for two days. During this time he was verbally abused, slapped and questioned as to the identity of those involved in the killings. In 1994 the appellant was again arrested in order to prevent a breach of the peace at a time when processions were being held. The appellant was held for three and a half days. He was deprived of food and sleep. In 1995, another murder took place and the appellant was accused by his political opponent, Altaf Hussain Shah, of being involved. The appellant was detained for a week but was not charged. During this week, he was beaten up. The soles of his feet were struck with rods. Pencils were put between his fingers, which were then pressed together. He was told by the police that if he did not accept this charge, he would be 'framed' for arms and other charges.
On 11 January 1996, the appellant was with a group of people in the market in Shorkot when the group was fired upon. The appellant's cousin, Chaudhary Shaukat Ali Salimi, was among those killed. The appellant recognised two of his assailants as Shias, but did not report them to the police because of fear of retaliation. Instead, the appellant went to Faislabad, where he stayed for two or three months before returning to Shorkot. Although the murders on 11 January 1996 were reported to the police, no-one was convicted of them.
The next incident affecting the appellant was on 4 August 1997. On that day seven or eight Shias were shot in the market place in Shorkot. The appellant feared retaliation. He did not return to his own home but went to stay with a friend, who was not associated with SSP, for four or five days. The appellant sold some jewellery and possessions and went to Karachi to avoid retaliation. In Karachi he remained in contact with friends and relatives in Shorkot, some of whom visited him in Karachi. While the appellant was with his visitors in Karachi, he was fired upon by Shias who had followed him from Shorkot. The appellant fled the scene of the shooting and made arrangements through an agent to leave Pakistan. Subsequently, the appellant learned that he had been accused by Altaf Hussain Shah of having been involved in the murders on 4 August 1997 and an FIR had been issued against him.
In making the above findings, I have had to consider one further discrepancy in the appellant's evidence. In his examination-in-chief he stated clearly that he left Shorkot after the incident on 4 August 1997 because of his fear of violent retaliation by Shias. He said he did not know that his name had been reported to the police until after he had come to the United Kingdom. He also said he was not aware of the existence of the FIR until after he came to the United Kingdom. Later on, in cross-examination, the appellant said that before he left Shorkot, he telephoned his family home and was told not to return there because the police were coming round. This appeared to contradict what the appellant had said earlier, namely that it was after he had left Pakistan he telephoned his brother and was told the police were making enquiries about him.
Regrettably, this discrepancy was not put to the appellant at the hearing itself. It is possible that his meaning in the examination-in-chief was that he was unaware that a specific accusation had been made against him until after he left Pakistan, although the police may have been making enquiries of a more general nature prior to his departure from Shorkot. Nevertheless, whatever the explanation of his discrepancy, I am satisfied from the appellant's evidence that the reason he left Shorkot was because he feared retaliation by Shia extremists, and not because of a fear of the police".
At this point in his determination the Special Adjudicator reminded himself that in accordance with the decision in Sandralingham he had to assess the petitioner's circumstances as at the date of the hearing. He proceeds to say this:
"By the date of the hearing, the appellant's fear of returning to Pakistan was two-fold. He had a fear of arrest in terms of the FIR relating to the shooting on 4 August 1997. He also had a fear of sectarian violence at the hands of Shia extremists."
I was informed that an "FIR" is a document entitled Further Information Report which is issued by the authorities where an individual is suspected of a crime. The Special Adjudicator goes on to set out the competing submissions for the petitioner and for the Secretary of State on the matter of the assessment of the petitioner's circumstances as at the date of the hearing. For the petitioner it was submitted that the petitioner's fear of the police in Pakistan was a fear of persecution for a Convention reason. The petitioner's political and religious opponents, it was said, were utilising the police in order to manufacture what was termed a "situation" against the petitioner. For the Secretary of State on the other hand it was urged that although the SSP was a political party and a legal organisation, some of its members had been responsible for terrorist attacks on Shia leaders and other members of the Shia community. In the circumstances against this background, it was understandable that someone belonging to SSP might well come to the notice of the Pakistani authorities. Looking to these competing submissions the Special Adjudicator continued as follows:
"The appellant does not deny that the killings described in the FIR against him, occurred. According to the appellant's evidence at the hearing, he was in the vicinity at the time. He claimed he was in his brother's shop in the market and only his brother was with him. Where it is acknowledged the crime had been committed and that one of the suspects was in the vicinity at the time, it is not at all apparent the suspect is being charged because of political motives rather than because he has been implicated by the investigation into the crime. It is the appellant's position, of course, that the informant named in the FIR, Altaf Hussain Shah, was his political opponent. Nevertheless, it does not follow from this that the FIR was issued for political reasons. The murdered individuals, it is acknowledged by the appellant, were Shias; Altaf Hussain Shah was a prominent Shia in Shorkot. It would be expected that he would provide information to the police, in much the same way as the appellant said that his cousin's brother reported his cousin's murder to the police. The actions of the police in issuing the FIR ought also to be considered against the background of sectarian violence in Pakistan. The newspaper cutting lodged by the appellant in respect of the incident on 4 August 1997 itself refers in the headline to "sectarian shootings." The report refers to a number of incidents involving the deaths of Shias or Sunnis of which the incident in Shorkot was one. The US report lodged on behalf of the respondent, refers also to the Shia - Sunni conflict. This report records,
'Where Shi'ites have been the targets of Sunni violence, the perpetrators are nearly always members of one or two extremist Sunni organisations. One of these, in particular, the Anjuman-e-Sipah-e-Sahaba, has been credibly linked to bombings of Shi'ite mosques and gunfire directed at its opponents. The leader of the ASP, Azam Tariq, surrendered to police in June 1995. Arrest warrants have been issued against him on weapons and attempted murder charges".
It is clear from the respondent's refusal letter that the organisation referred to in his report is the same organisation as is now known as SSP. It is the organisation to which the petitioner belongs. The US report is unequivocal: where Shi'ites have been the target of Sunni violence, the perpetrators have nearly always been from the appellant's organisation. In these circumstances, I am not satisfied that the FIR issued against the appellant was politically motivated. There is a reasonable likelihood that the appellant is wanted by the police in Shorkot as a genuine suspect in respect of the killings on 4 August 1997.
For this reason, I regard the petitioner's fear of arrest, were he to return to Pakistan, as a fear of prosecution. He is a fugitive from justice. He protests his innocence but that is properly a matter to be decided by a court in Pakistan, according to all the available evidence. Accordingly, I am not satisfied that the petitioner's fear of arrest and prosecution in Pakistan arises for a reason recognised by the Convention such as would entitle him to the protection of the Convention."
The Special Adjudicator goes on to say this:
"I have accepted the appellant's evidence that he was previously arrested and mistreated by the police in Pakistan. The appellant established that all his arrests arose in relation to specific incidents, where he was either suspected of having been involved in a crime or it was feared that he would commit a crime, namely breach of the peace. Although the appellant's mistreatment in detention ought not to be condoned, he has not established that he was detained by reason of his political opinion rather than for the purpose of enforcing the law. In this regard, I refer to the view of Jowitt J. in ex parte Shokar (unreported QBD 17 March 1998), where he said that police brutality, which was directed at a prisoner simply because he was a prisoner, is not per se persecution for a Convention reason. Furthermore, the appellant's evidence shows that it was not his three arrests which led to his decision to leave Pakistan. His last arrest was in 1995 and he did not mention two earlier arrests at his asylum interview. The appellant left Pakistan because he was afraid of retaliation by Shias and he is now afraid to return because of his continuing fear of this retaliation and because he will be arrested and prosecuted in respect of the incident on 4 August 1997."
In the course of submissions in this Court no criticism was made of this passage in the determination of the Special Adjudicator.
The Special Adjudicator then turned to consider the question whether the petitioner's fear of retaliation by Shias was a fear of persecution. While no criticism was directed in the course of submissions before me to what was set out in this part of his determination by the Special Adjudicator, it is appropriate to take note of certain passages in it. In particular the Special Adjudicator stated that for the petitioner to establish that his fear of violence by Shias entitled him to the protection of Convention, he must show that the offensive acts of Shias were knowingly tolerated by the authorities in Pakistan or that the authorities there refused or proved unable to offer effective protection. After reference to certain tribunal decisions, the Special Adjudicator referred to the evidence of the US report already quoted which had not been contradicted before him, to the effect that the Pakistan Government took a serious view of sectarian violence and, at least outside Karachi, had been quick to respond to outbursts of sectarian violence. The Special Adjudicator then continued:
"That the Pakistan authorities do respond is supported by the appellant's own evidence. When a Shia was murdered in 1993, he was detained as a suspect, although released without charge. When there was a fear of violence in Shorkot arising from rival processions, the appellant was detained to prevent a breach of the peace. In 1995 when a further murder was committed, the appellant was again detained as a suspect, although again released without charge. Following the killings on 4 August 1997, an FIR has been issued against the appellant. He is suspected in Pakistan of involvement in these murders. The steps taken by the authorities in Pakistan to prosecute those suspected of the murders on 4 August 1997, through the issuing of the FIR, is itself evidence of the willingness of those authorities to offer effective protection. The operation of the system of criminal justice is a significant element in the provision of protection."
The Special Adjudicator then stated that he was not satisfied that the authorities in Pakistan were unwilling or unable to offer effective protection to the petitioner against sectarian violence and he therefore agreed that the Shia opponents, whom the petitioner fears, are not agents of persecution within the terms of the Convention. This conclusion is not attacked in the present petition.
In the final part of the determination the Special Adjudicator said this:
"I have accepted that the appellant has a genuine fear of returning to Pakistan. He faces prosecution because of his suspected involvement in sectarian murders. He also fears retaliation by associates of those who were murdered. On neither of these grounds is he entitled to the protection of refugee status under the 1951 Convention. In respect of the first of these fears, his fear is a fear of prosecution, albeit that he maintains his innocence. In respect of the second fear, he has not established that those whose actions he fears are agents of persecution from whom the authorities in Pakistan are unwilling or unable to offer him effective protection".
On that basis the Special Adjudicator held that the petitioner's appeal before him did not succeed.
In the end of the day the submissions for the petitioner were within relatively short compass. It was said that the Special Adjudicator had failed to take proper account of the whole circumstances upon which the petitioner had based his application for asylum upon a well-founded fear of persecution. In any such determination it was necessary to look to the whole background of circumstances which were revealed by the evidence. It was clear that the violence which had taken place in Shorkot had arisen out of a political dispute between two rival religious factions. It was accepted by the Special Adjudicator that the petitioner had been mistreated on previous occasions, and indeed had been tortured by the police authorities in Pakistan. That misconduct had followed arrest by the police after the petitioner's involvement in political activities. The allegation of murder which was the subject of the FIR, had been issued following an accusation by a political opponent that he had been involved in the murders on 4 August 1997. There was no sufficient reason given by the Special Adjudicator for taking the view that against the background of fact as found by him in relation to the petitioner, there was any justification for the finding that there was a reasonable likelihood that the petitioner was wanted by the police as a genuine suspect in respect of the killings on 4 August 1997. In particular in the passage immediately preceding that finding and under reference to the US report, there was no warrant for the Special Adjudicator inferring from that report that where Shi'ites had been the target of Sunni violence, the perpetrators had nearly always been from the petitioner's organisation. To proceed upon the basis of a reasonable likelihood in relation to the finding that the petitioner was a genuine suspect, was to depart from and distort the test which the Special Adjudicator had set out at the start of his determination that the appellant required to demonstrate only a reasonable degree of likelihood of being persecuted for a Convention reason.
In addition and in fortification of this last submission, counsel for the petitioner submitted that having been generally satisfied as to the petitioner's credibility in evidence before him, where there was some issue of fact which remained unsubstantiated, the benefit of doubt should be extended to the petitioner and in particular to his assertion that he had played no part in the crime in relation to which the FIR had been issued against him. Accordingly the inference that the issue of the FIR was politically motivated should have been accepted in the circumstances described by the petitioner. In this regard reference was made to the terms of paragraphs 203 and 204 of the UNHCR handbook. The use of the handbook was legitimate in such circumstances. Reference was made to Robinson v Secretary of State for the Home Department 1997 Imm. AR 568.
I can deal with the second submission fairly shortly. The terms of the paragraphs referred to in the UNHCR handbook do not, I consider, assist in the matter with which the Special Adjudicator was concerned. Paragraph 203 begins as follows:
"After the applicant has made a genuine effort to substantiate his story there may still be a lack of evidence for some of his statements".
It is in these circumstances that the paragraph points out that it is therefore frequently necessary to give the applicant the benefit of the doubt. Paragraph 204 however points out that the benefit of the doubt should only be given when all available evidence has been obtained and the statements made must not run counter to generally known facts. When regard is had to the manner in which the Special Adjudicator has considered the matter, it is not the case that he has overlooked the petitioner's assertions before him in relation to the issue of the FIR. He noted in particular the petitioner's maintenance of his innocence. On the other hand he sets out the particular circumstances of the killings described in the FIR and the petitioner's presence in the vicinity. He made reference to the fact that notwithstanding that the individual who informed upon him to the police was the petitioner's political opponent, it did not follow from that fact that the FIR was issued for political reasons. He took note of the fact that in another case it was a brother of the petitioner's cousin who had reported the murder of the cousin to the police. The Special Adjudicator also considered that the actions of the police in issuing the FIR were properly to be considered against the background of sectarian violence in Pakistan. He noted that the organisation to which the petitioner belonged was one referred to in the US report. The terms of that report were such that the organisation to which the petitioner belonged had been credibly linked to bombings of mosques and more particularly to gunfire directed at its opponents. In these circumstances it cannot be said that the Special Adjudicator was not entitled to reach the conclusion that where Shi'ites had been the targets of Sunni violence, the perpetrators had nearly always been from the petitioner's organisation. Having regard to all these matters, it seems to me that the Special Adjudicator was fully justified in holding that he was not satisfied that the FIR issued against the petitioner was politically motivated. It followed therefore that as the Special Adjudicator held, there was a reasonable likelihood that the petitioner was wanted by the police in Shorkot as a genuine suspect in respect of the killings on 4 August 1997.
Furthermore these findings have to be considered in the context which immediately followed the passage which was criticised in the Special Adjudicator's determination. In this passage the Special Adjudicator noted that on previous occasions the petitioner had been arrested and mistreated by the police in Pakistan. But he noted that all the arrests arose in relation to specific incidents where the petitioner was either suspected of having been involved in a crime or it was feared that he would commit a crime, namely breach of the peace. That is to say, the Special Adjudicator was holding that the police had acted for the purpose of enforcing the law and not simply for detaining the appellant by reason of his political opinion.
In my judgment against the whole background which was set out in the determination, the Special Adjudicator did not fail in any way to give the petitioner the benefit of the doubt. The petitioner's statements that the accusation which gave rise to the FIR and the FIR itself were politically motivated did run counter to other material which was to the opposite effect, from which the Special Adjudicator was entitled to infer that the issue of the FIR was not politically motivated and that the petitioner was wanted as a genuine suspect in respect of the killings on 4 August 1997. That being so, the Special Adjudicator was entitled to regard the petitioner's fear of arrest if he were to return to Pakistan as a fear of prosecution. Indeed the petitioner in his second ground stated in the petition makes specific reference to the likelihood that the petitioner would be arrested and prosecuted if he was to return to Pakistan. In that regard he was also entitled to take note of the petitioner's assertion of innocence but to state that that was properly a matter to be decided by a court in Pakistan according to all the available evidence. While the fear of prosecution was allied to the fear of becoming subject to police brutality after arrest, no objection was taken to the passage in the determination in which the Special Adjudicator noted that police brutality directed at a prisoner simply because he was a prisoner, was not per se persecution for a Convention reason. More importantly the Special Adjudicator in the latter part of his determination was satisfied that the issuing of an FIR was itself evidence of the willingness of the Pakistani authorities to offer effective protection against sectarian violence by prosecuting those suspected of the murders. It is clear therefore that in reaching the view that he did that the appellant's fear was truly a fear of prosecution and not of persecution the Special Adjudicator took full advantage of all the facts found by him in relation to the issues which he had to determine. No question arose in dealing with those issues as to the giving the benefit of the doubt to the appellant in his assertion that the issue of the FIR was politically motivated and was not properly issued against a genuine suspect for criminal offence which the Pakistani authorities were quick to respond to as outbursts of sectarian violence.
I should add that with regard to the first two stated grounds of appeal in the petition, there is no doubt that the Special Adjudicator did proceed upon the basis that there was a reasonable degree of likelihood that the petitioner would be arrested and prosecuted if he were to return to Pakistan. In the second ground of appeal it is said that given the finding in fact that the petitioner previously suffered torture at the hands of the police in Pakistan following complaints from a political opponent he ought to have concluded that the petitioner was at risk of not receiving a fair trial. It is proper to note that counsel for the petitioner did not go so far as to suggest that the petitioner was at risk of not receiving a fair trial in the event that he was to be arrested and prosecuted in Pakistan for the murders on 4 August 1997. The most that counsel was prepared to advance in this respect was to suggest that having regard to the previous occasions on which the petitioner had been ill-treated by the police, there was a reasonable degree of likelihood that he would be so mistreated in the event that he was to return to Pakistan and there be arrested and prosecuted for the murders on 4 August 1997. However, no criticism was directed to the passage in the latter part of the determination in which the Special Adjudicator stated that having accepted evidence that the appellant was previously mistreated in police custody, it followed that he might face further mistreatment prior to any trial subsequent to any future arrest. But the Special Adjudicator found upon the authority of Shokar's case that treatment of such a kind inflicted on detainees was not inflicted for a reason recognised by the Convention. Accordingly I do not consider that there is any warrant for any of the three grounds upon which the present petition proceeds.
It remains only briefly to deal with the next issue which was urged for the petitioner, namely that the Immigration Appeal Tribunal had erred in law in making the decision complained of. It is clear that the Immigration Appeal Tribunal were provided with grounds of appeal which are largely encapsulated in the grounds argued before this Court. The Tribunal noted that the Special Adjudicator had accepted that the applicant had a fear of returning to Pakistan but that such fear was of possible prosecution and not persecution and had further found that the petitioner's Shia opponents were not agents of persecution within the terms of the Convention. It had regard to the fact that the Special Adjudicator had received oral evidence and that the Tribunal would not likely interfere with findings of fact in such cases. It concluded that the Special Adjudicator appeared to have considered all the evidence before him and that he had properly directed himself as to correct standard of proof. In relation to the findings made by the Special Adjudicator the Tribunal formed the opinion that he did not err or misdirect himself in those findings. In those circumstances the Tribunal considered the findings and conclusions of the Special Adjudicator were fully supported by the evidence and that there was no misdirection by the Special Adjudicator in law or otherwise.
It is plain that the Tribunal gave full consideration to the grounds which were placed before them and which included the grounds urged before this Court. Since I am satisfied from the submissions put before this Court that there is no warrant for criticisms sought to be made of the Special Adjudicator's determination and in particular that there was no error in law in the manner in which he reviewed the evidence and reached his conclusions upon the evidence in relation to the issues put before him, it follows that the Tribunal were fully entitled to reach the view that they did, namely that the grounds of appeal involved no material points of law and that the case before them was not a proper case in which to grant leave, there being no arguable case that the Special Adjudicator had erred in law. I should add that in relation to the submissions separately made in regard to the Tribunal's refusal of leave to appeal reference was made to a number of recent cases namely Petition Asif 1999 SLT 800; Jaswinder Singh 1998 SLT 1370 and Parminder Singh (Unreported Extra Division, 26 October 1999) and Major Singh (Unreported Outer House, 7 March 2000). However these cases were in large part concerned with a matter which did not arise in the present case. Where a claimant is seeking leave to appeal and is required to state the grounds for his appeal, the appellate authorities are not limited by arguments actually advanced but are entitled to proceed upon a readily discernible and obvious points in the petitioner's favour if such there was, although not one which had been taken on his behalf. But such a situation does not arise here.
For all these reasons I consider that the petitioner has not made out his case for reduction of either the determination of the Special Adjudicator or of that of the Immigration Appeal Tribunal refusing leave to appeal. In the whole circumstances I shall sustain the first plea-in-law for the respondent and dismiss the petition.