Mrija v. Secretary Of State For The Home Department [2006] ScotCS CSOH

OUTER HOUSE, COURT OF SESSION

[2006] CSOH 98

P1867/04

OPINION OF LORD KINCLAVEN

in the Petition of

DILAVER MRIJA

Petitioner;

against

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT

Respondent:

for Judicial Review of a decision by the Adjudicator and a decision of the Immigration Appeal Tribunal refusing permission to appeal under the Immigration and Asylum Act 1999

________________

Petitioner: Govier; Drummond Miller WS

Respondent: A. J. Carmichael; Office of the Solicitor to the Advocate General

29 June 2006

Introduction

[1] This is a petition for judicial review concerning an application by Mr Mrija for asylum. His original application was refused and an Adjudicator refused an appeal. The Immigration Appeal Tribunal (the "IAT") subsequently refused permission to appeal.

[2 ] The Petitioner seeks inter alia reduction of the determinations of the Adjudicator and of the Immigration Appeal Tribunal.

[3 ] The Respondent is the Secretary of State for the Home Department who is responsible for the enforcement of immigration control throughout the United Kingdom.

[4 ] Having heard counsel for the Petitioner and for the Respondent, I have decided to dismiss the Petition for the reasons outlined below

The General Background

[5 ] The petitioner, who is a citizen of Albania, arrived in the United Kingdom accompanied by his wife Mihane and their two daughters on 12 June 2001 and claimed asylum on arrival. The respondent refused that application, intimating his decision and his reasons for that decision in terms of his letter dated 20 September 2001. He issued directions to remove the petitioner, and his wife and family, from the United Kingdom. After sundry procedures, the Adjudicator in Glasgow refused the petitioner's appeal against the issuing of removal directions in terms of a determination dated 12 May 2003. The Adjudicator found that the petitioner's removal from the United Kingdom would not cause it to be in breach of its obligations under either of the 1951 Geneva Convention relating to the Status of Refugees, as amended, ("the Convention"), 1951 or in breach of the law or of its obligations under the 1950 Convention for the Protection of Human Rights and Fundamental Freedoms ("the 1950 Convention").

[6 ] By determination dated 30 June 2003, the Immigration Appeal Tribunal refused the petitioner permission to appeal against the Adjudicator's determination.

[7 ] The determination of the adjudicator being dated prior to 9 June 2003, the provisions of section 101(2) of the Nationality, Immigration and Asylum Act 2002 do not apply in this case.

The Adjudicator's Determination

[8 ] As the parties are familiar with the productions I do not propose to rehearse the full terms of the Adjudicator's Determination (Production No. 6/2 of Process).

[9 ] Some of parts of the Adjudicator's determination are not directly relevant to this petition and other parts are mentioned below. It may suffice to note the following passages from his determination at this stage.

[10 ] The Adjudicator states (in paragraph 33) that:-

"Given the Appellant's past experiences there can be no question in my view of his returning to his home area. He has been subjected to a catalogue of abuse there at the hands of the local police. He has complained about their conduct and that has not had any effect. That however is not an end of the matter. The next question to consider is whether the Appellant would be at risk of ill-treatment amounting to persecution or a breach of Article 3 throughout Albania."

[11 ] The Adjudicator also states (at page 9 of his determination):-

"38. When I come to consider all of the evidence in the round l reach the conclusion that were the Appellant to move elsewhere within Albania he would find that he could pursue his political activities without there being any real risk of his being subjected to ill-treatment by local police. Further, he would find there a sufficiency of protection for him and his family should he or his family again be threatened by political opponents. Sufficiency of protection is a practical test. No state can guarantee the safety of its citizens. It appears to me on the evidence viewed in the round that the Albanian state has the ability to offer the Appellant and his family a standard of protection which can properly be characterised as sufficient and, leaving aside the Appellant's home area and his unfortunate experiences there, would be willing to provide the Appellant and his family with that protection now.

39. This of course would involve the Appellant in relocating along with his family. The Appellant and his family successfully relocated to Durres. There really is nothing in the evidence to my mind which would justify the conclusion that it would be unduly harsh to expect the Appellant and his family to relocate to an area where the police force act in a proper and acceptable manner.

40. Relocation to an area where there exists a sufficiency of protection for the Appellant provides the answer to any claim the Appellant may have under the Refugee Convention or ... Article 3 of the Human Rights Convention. ..."

[12 ] In the result, the Adjudicator dismissed the appeal on asylum grounds.

[13 ] He also dismissed the appeal on human rights grounds.

The Application to the IAT for Leave to Appeal

[14 ] The Application to the Immigration Appeal Tribunal for Leave to Appeal is No 6/3 of Process.

[15 ] The Appellant sought permission to appeal (in paragraph 2) "on the basis that the Adjudicator has misdirected himself in law and as such his decision falls to be reduced."

[16 ] Paragraph 3 of the Application was in the following terms:-

"Specifically the Adjudicator rejected the Appellant's claim because he concludes, at paragraph 38, that if he moved elsewhere within Albania there would not be any real risk of his being subjected to ill treatment by the local police. It is respectfully submitted that the Adjudicator has erred in arriving at this conclusion. In the unfortunate circumstances of this particular case it is respectfully submitted that it would be unduly harsh to expect the Appellant and his family to re-locate elsewhere in Albania. Specifically the Adjudicator should have borne in mind the fact that when the Appellant lived in Durres he and his family remained indoors and remained effectively in hiding. He also required to consider the detrimental effect that returning to Albania would have on the health of the Appellant, his family and particularly his daughter Lejdisa. It is respectfully submitted that these factors, in the peculiar circumstances of this case, make it unduly harsh for the family to relocate."

[17 ] Further and separately (in paragraph 4) the Appellant submitted that it would be a breach of Article 3 for the Appellant's daughter Lejdisa to be returned to Albania.

[18 ] Finally (in paragraph 5) it was submitted that the Adjudicator's decision ought to be set aside and the appeal allowed on both asylum and human rights grounds.

The Determination by the IAT of the Application for Leave to Appeal
[19 ] The Determination (by the Immigration Appeal Tribunal) of the Application for Leave to Appeal is produced as No. 6/4 of Process. The application was before HH Judge N Ainley.

[20 ] Permission to appeal was refused.

[21 ] The reasons for the decision of the Immigration Appeal Tribunal were as follows:-

"The grounds of appeal centre on an assertion that it would be unduly harsh for the family to have to settle elsewhere than their home area in Albania. On the facts found by the adjudicator, and I can see no obvious error in the way he set about assessing the facts in this case, it would be a watering down of the concept of undue hardship as developed in e.g. Karanakaran to hold that the real difficulties which this family would face on return would be as severe as to cross that threshold.

Likewise with the Art. 3 claim. There will be considerable difficulties for his daughter, and thus him, to face on return but in my judgment they do not even arguably amount to a breach of Art. 3. This appeal has no real prospect of success."

The Productions

[22 ] The productions lodged in the present petition process were as follows:-

6/1 Letter from Immigration and Nationality Directorate, Home Office, to the Petitioner, dated 20 September 2001.

6/2 Adjudicator's determination, dated 12 May 2003.

6/3 Grounds of Appeal lodged when leave to appeal the determination of the Adjudicator was sought, undated.

6/4 IAT's determination, dated 30 June 2003.

6/5 Map of Albania.

6/6 Copy Certificate of Legal Aid.

6/7 CIPU Report October 2002 i.e. Republic of Albania, Country Assessment, October 2002, produced by the Country Information and Policy Unit ("CIPU"), Immigration & Nationality Directorate, Home Office.

[23 ] During the course of submissions I was referred to virtually the whole of the Home Office letter dated 20 September 2001 (No. 6/1).

[24 ] I was referred to particular parts of the Adjudicator's determination (No. 6/2) and in particular paragraphs 8 to 21 inclusive, and paragraphs 29 to 44 inclusive.

[25 ] I was also referred to the whole of the Grounds of Appeal and the IAT's determination (Nos. 6/3 and 6/4).

[26 ] The map (No. 6/5) was also referred to highlight the locations of Librazhd and Durres and, roughly between the two, Tirane. Mr Govier informed me that the map had been before the Adjudicator.

[27 ] The CIPU assessment (No 6/7) was also mentioned. I was also informed that this assessment had been before the Adjudicator.

The Submissions for the Petitioner

[28 ] Against that background, Mr Govier, counsel for the petitioner, invited me to sustain the Petitioner's plea-in-law, as amended, which was in the following terms:-

"The determinations of the Adjudicator and of the Immigration Appeal Tribunal being unlawful and in breach of procedural fairness and unreasonable, as condescended upon, they should be reduced as sought in Paragraph 3 ... " (of the petition).

[29 ] In paragraph 3 of the Petition, as amended, the petitioner seeks: ‑

(a) reduction of the determinations of the Adjudicator and of the Immigration Appeal Tribunal;

(b) the expenses of this petition, and

[30 ] Essentially, Mr Govier made three submissions, the first two of which were set out in the Petition, namely:-

(1) that the adjudicator's determination was unfair as the Petitioner was not given notice that the issue of internal relocation was to be raised at the hearing before the Adjudicator and the Petitioner's evidence was not lead on that issue (paragraph 6 of the Petition);

(2) that the Adjudicator's determination was unlawful in that he failed to take into account the flight of the Petitioner and his family to Durres (paragraph 7 of the Petition); and

(3) that the determination of the Adjudicator was unreasonable in that he failed to give adequate reasons for his decision that relocation was available to the Petitioner and his family.

[31 ] Mr Govier accepted that the points he sought to address were not all raised in the application for permission to appeal but he suggested that the IAT would readily have been able to identity those points. His third submission about inadequate reasons was new but, he suggested, it arises out of the other two. He submitted that the IAT should have granted permission to appeal.

[32 ] The structure of the Petition is broadly as follows. The factual background is set out in paragraph 5 of the Petition. The first ground of review is set out in paragraph 6 of the Petition. The second ground of review is set out in paragraph 7 of the Petition. I shall deal with each of those matters in turn.

[33 ] The Petitioner sets out the factual background in paragraph 5 of the Petition. It is averred that the petitioner became a member of the Democratic Party in Albania in 1990. The party won the national elections in the country in March 1992. He became the president of a local branch of the party in November of that year. While the Democratic Party was in power, the petitioner was subjected to attacks and threats by supporters of the Socialist Party, from whom the Democratic Party had gained power at those elections. In 1997, amid great civil unrest, the Democratic Party government resigned. The Socialist Party won the ensuing elections. Subsequently, the petitioner's home which was in the Librazhd area was raided on a number of occasions by police. He himself was on several occasions detained and beaten up while in police custody. On one occasion, he was stopped by the police. When he tried to run away from them, he was shot. As a result he required to have one of his fingers amputated. He was threatened with death by the police if he did not resign from the Democratic Party. This harassment and mal-treatment continued until 2000. In September of that year, his daughter Lejdisa, who was then about 9 years old, was kidnapped. She was released after being told to tell her father that he should stop his political activities and leave the Librazhd area. He did so almost immediately. He went with his wife and family to live with a friend of his in the town of Durres. He did not involve himself in significant political activity while living there. About three months later, the petitioner received an anonymous letter at the house in Durres threatening him. He decided that he and his family had to leave Albania to ensure their safety. They did so and subsequently arrived in the United Kingdom as above narrated.

[34 ] The first ground of review is set out in paragraph 6 of the Petition. There it is averred that the determination of the adjudicator was unlawful and in breach of procedural fairness. It is also averred that the Immigration Appeal Tribunal, in failing to identify these faults in the adjudicator's determination and to grant permission to appeal, itself acted unlawfully. The determination of the Immigration Appeal Tribunal should therefore be reduced. In particular, the determination of the adjudicator was unfair. The appeal to the adjudicator followed upon the decision of the respondent to refuse the petitioner's application for asylum in terms of his letter of 20 September 2001 and the consequent issuing of directions to remove the petitioner, and his wife and family, from the United Kingdom to Albania. In the said letter, the respondent concluded that the petitioner, as applicant to him, had not "established a well-founded fear of persecution and that [he did] not qualify for asylum". No issue of the possibility of' the internal relocation of the petitioner and his family to a safe area of Albania was raised in the said letter. That issue was not raised until, at the earliest, the hearing before the adjudicator had commenced. The petitioner had no notice that the issue of possible internal relocation would be raised at the hearing. The adjudicator found that " ... were the Appellant to move elsewhere within Albania he would find that he could pursue his political activities without there being any real risk of his being subjected to ill-treatment by the local police" (para. 38). He also found that there was " ... nothing in the evidence ... which would justify the conclusion that it would be unduly harsh to expect the Appellant and his family to relocate to an area where the police force act in a proper and acceptable manner" (para. 39)(italics added). He concluded: "Relocation to an area where there exists a sufficiency of protection for the Appellant provides the answer to any claim the Appellant may have under the [1951] Convention ... or Article 3 of the [1950] Convention" (para. 40). He accordingly, on the basis of findings of fact relative to conditions in Albania, dismissed the petitioner's appeals, other than one ground of appeal not relevant to the present argument. The petitioner not having been given notice prior to the commencement of the hearing before the adjudicator that the issue of possible internal relocation was to be raised at that hearing, and accordingly not having sought to obtain and adduce at that hearing evidence relative to that issue, and the determination of the adjudicator being based on evidence of that issue adduced by the respondent, that determination was unfair and lacking in procedural propriety.

[35 ] Mr Govier accepted that the original decision to refuse was on the basis that the Secretary of State had rejected the claim that the Petitioner had a well founded fear of persecution. However, he submitted that the question of internal flight or relocation might have been addressed by the Home Office on an esto basis and there was no mention of internal flight or relocation in the letter dated 20 September 2001 (No 6/1).

[36 ] The second ground of review is set out in paragraph 7 of the Petition. There it is averred that the determination of the adjudicator was unlawful in that it did not take into account all relevant and material considerations. In particular, the adjudicator accepts that " ... for the most part [excepting certain matters which are not relevant to the instant proceedings], the Appellant has been truthful" (para. 32) and "[g]iven the Appellant's past experiences there can be no question in my view of his returning to his home area. He has been subjected to a catalogue of abuse there at the hands of the local police" (para. 33). He noted that to find safety in Albania, the petitioner and his family went to Durres "which is some distance from his home area" and where "he was not involved in significant political activity" (para 35). He does not criticise the choice of Durres as a safe haven as being made in bad faith by the petitioner. After living in Durres for about three months, the petitioner received a threatening letter, which resulted in him deciding "he had to leave Albania" (para. 16). Nevertheless, the adjudicator concluded that "were the Appellant to move elsewhere within Albania he would find that he could pursue his political activities without there being any real risk of his being subjected to ill-treatment by the local police" (para. 38). In moving to Durres, the petitioner had already attempted to seek protection by that means, and had, in terms of the finding of the adjudicator, failed. The adjudicator having failed to take into account a relevant and material consideration, his determination was unlawful.

[37 ] Mr Govier's third submission was to the effect that, in the circumstances, the adjudicator's reason were inadequate

[38 ] Mr Govier expanded upon his averments during the hearing under references to the productions as mentioned above.

[39 ] Mr Govier's list of authorities included: - Saleh Habib Aziz v SSHD [2003] EWCACiv 118 (and in particular at paragraphs 2, 3, 9, 10, 23 to 26 and 28); Jaswinder Singh v SSHD, IAT Appeal No. G0094, 10 June 1999 (at paragraphs 1, and 4 to 6); DD v SSHD [2005] CSIH 37 (in full); Rabbani v Canada (Minister of Citizenship and Immigration) IMM-236-96, 16 January 1997; Syme and Jorro, Asylum Law and Practice, (2003); Macdonald, Immigration Law and Practice, (5^th Ed., 2001); and Wordie Property Co. Ltd v Secretary of State for Scotland 1984 SLT 345. The Opinion of the Court in Jaswinder Singh v SHHD, dated 4 December 1998, was also produced to set the IAT decision (referred to above) in context.

[40] For the reasons outlined above, Mr Govier invited me to sustain the Petitioner's plea-in-law.

The Submissions for the Respondent

[41 ] Ms Carmichael, for the Respondent, invited me to dismiss the petition.

[42 ] There was a preliminary hurdle which affected all the Petitioner's submissions namely that the issues now being raised were not the issues which were before the Immigration Appeal Tribunal. That gives rise to a difficulty for the Petitioner under the Immigration and Asylum Appeals (Procedure) Rules 2003 (SI 2003/652) mentioned below. The Petitioner can only rely on "obvious" points.

[43 ] Further, there are no averments in the Petition to support a submission based on alleged inadequacy of reasons. That is a new matter.

[44 ] Further, the Petitioner's complaints were not sufficiently focused or specific.

[45 ] In any event:-

(1) there was no procedural unfairness,

(2) the move to Duress was taken into account, and

(3) the Adjudicator's reasons were adequate.

[46 ] Ms Carmichael responded to the Petitioner's allegations as follows.

[47 ] In Answer to the first ground of review, the Respondent avers (in Answer 6) that in order to obtain protection under the 1951 Convention, the petitioner required to demonstrate that he was, by reason of well-founded fear of persecution for the specified reasons, outside the country of his nationality, and was unable or unwilling to avail himself of the protection of that country. The petitioner required to satisfy the adjudicator that he was unable to avail himself of such protection throughout Albania, and not merely in the region from which he had come. There was no need for the question of internal relocation to be raised in the respondent's letter, as the respondent had concluded that the petitioner did not have a well-founded fear of persecution. The respondent's representative made submissions concerning internal relocation at the hearing before the adjudicator, and the petitioner's solicitor responded to those submissions. Reference was made to paragraphs 20 and 21 of the adjudicator's determination. The petitioner was represented by a solicitor. The solicitor made no motion to adjourn in order to consider the position regarding internal relocation or in order to seek to obtain further evidence on the point. There is no indication that there was any difficulty for the petitioner's solicitor in making submissions as to internal relocation. The proceedings before the adjudicator were not procedurally unfair or improper.

[48 ] Further and in any event, the Responded avers, the application for leave to appeal to the Immigration Appeal Tribunal included no ground of appeal to the effect that the proceedings before the adjudicator were procedurally unfair or improper. Reference was made to Rule 18(2) of the Immigration and Asylum Appeals (Procedure) Rules 2003 (SI 2003/652). That the proceedings were procedurally unfair was not a point which ought to have been obvious to the Immigration Appeal Tribunal in the absence of a ground of appeal to that effect before it in the application for leave to appeal. Reference was made in particular to R v SSHD ex p Robinson [1998] QB 929; Mutas Elabas v SSHD 2 July 2004, per Lord Reed at paragraphs 21-23.

[49] In answer to the second ground of review, the Respondent avers (in Answer 7) that the adjudicator took into account the petitioner's evidence as to his relocation in Durres. Reference was made to paragraphs 16, 35 and 39 of the adjudicator's determination. The adjudicator noted that (in contrast to the persecution which the petitioner had suffered in the Libazhd area) he did not suggest that he suffered any form of ill-treatment at the hands of the police in Durres. The adjudicator took that matter into account. He concluded, as he was entitled to do on the evidence, that were the petitioner to relocate within Albania, he would be able to pursue his political activities without a real risk of ill-treatment from the local police. He concluded that there would he a sufficiency of protection should he or his family be threatened by political opponents.

[50 ] The adjudicator's reasons and those of the IAT were, it was submitted, adequate.

[51 ] Ms Carmichael also expanded upon the respondent's answers during the course of her submissions under reference to the productions mentioned above.

[52 ] Ms Carmichael referred me to the Immigration and Asylum Appeals (Procedure) Rules 2003 (SI 2003/652). She also referred to the following authorities: - R v SSHD ex p Robinson [1998] QB929 (and in particular at page 945 and 946); Mutas Elabas v SSHD, Lord Reed, 2 July 2004 (paragraphs [21] to [23]); Karanakaran v SSHD [2000] 3All ER 449; Mehmet Koca v SSHD [2005] CSIH 37, Daljit Singh v SHHD 2000 SC 219 (and in particular at page 222), Jasvir Singh v SHHD, First Division, Inner House, 1 August 2001 (and in particular at paragraph [10]) and Horvath v SSHD [2001] 1AC 489.

[53] It was submitted that the cases relied upon by the Petitioner could be distinguished on their facts.

[54 ] Ms Carmichael highlighted the judgment of Lord Justice Dyson in Saleh Habib Aziz v SSHD [2003] EWCACiv 118 (at paragraphs 23 to 26 and 28).

[55 ] DD v SSHD [2005] CSIH 37 proceeded on a concession. The Respondent withdrew opposition.

[56] Rabbani v Canada (Minister of Citizenship and Immigration) IMM-236-96, 16 January 1997was very brief and was not helpful.

[57 ] In the present case the question to relocation was raised and was dealt with and there was no motion to adjourn.

[58 ] The petitioner may not like the factual conclusions reached by the Adjudicator but that is not sufficient.

[59 ] It is for the Petitioner to make out his case and he has failed to do so.

The Immigration and Asylum Appeals (Procedure) Rules 2003

[60 ] Rule 18 of the Immigration and Asylum Appeals (Procedure) Rules 2003 (SI 2003 No. 652 (L.16)) was specifically referred to by counsel.

[61 ] Rule 18 provides inter alia as follows:-

" ... (2) The Tribunal is not required to consider any grounds of appeal other than those included in the application.

(3) The Tribunal may grant or refuse permission to appeal.

(4) The Tribunal may grant permission to appeal only if it is satisfied that -

(a) the appeal would have a real prospect of success; or

(b) there is some other compelling reason why the appeal should be heard."

Discussion

[62 ] It will deal firstly with the question of procedural unfairness (paragraph 6 of the Petition). I will then deal with the question of unreasonableness in the sense of failure to take into account all relevant and material considerations (paragraph 7 of the Petition) before turning to the question of inadequacy of reasons.

Procedural unfairness?

[63 ] In the whole circumstances of this particular case, I am satisfied that the Petitioner's ground of review relating to alleged procedural unfairness must fail.

[64 ] The Respondent has raised a preliminary issue in relation to the first ground of review. There was no ground of appeal based on procedural unfairness included in the application to the IAT for permission to appeal.

[65 ] Rule 18(2) of the Immigration and Asylum Appeals (Procedure) Rules 2003 provides that the Tribunal is not required to consider any grounds of appeal other than those included in the application.

[66 ] Rule 18(4) also provides that The Tribunal may grant permission to appeal only if it is satisfied that - (a) the appeal would have a real prospect of success; or (b) there is some other compelling reason why the appeal should be heard.

[67 ] In R v SSHD Ex parte Robinson [1998] QB 929 Lord Woolf MR stated inter alia (at page 946 / paragraph 39):

"It follows that leave to apply for judicial review of a refusal by the tribunal to grant leave to appeal should be granted if the judge is of the opinion that it is properly arguable that a point not raised in the grounds of appeal to the tribunal had a strong prospect of success if leave to appeal were to be granted."

[68] It is instructive to bear in mind the Opinion of Lord Reed in the case of the Mutas Elabas, Petitioner dated 2 July 2004 (especially at paragraphs 14, 21, 22 and 23). In relation to R v SSHD Ex parte Robinson [1998] QB 929 Lord Reed states in paragraph 21:

"It appears from that decision, therefore, that the tribunal is not required to engage in a search for points of law which are not raised in the grounds of appeal. It is on the other hand not limited by the arguments advanced, and should grant leave to appeal of it discerns a point of Convention law which has a strong prospect of success if it is argued."

[69] At paragraph 23 Lord Reed continues as follows:

"It is however important to bear in mind that obviousness is emphasised in both Ex parte Robinson and Ex parte Kolcak. As Lord Penrose observed in Parminder Singh v Secretary of State for the Home Department, 10 July 1998 (unreported):

'Whatever else this indicates, it is clear that there is and can be no duty to pursue each and every hypothesis that could be postulated in the search for possible grounds for support of an appeal which may have escaped the notice of the appellant's advisers.'

In the same case, Lord Penrose also said:

'It seems to me that in considering whether the IAT has erred in relation to matters of fact, or to inferences properly to be drawn from facts and circumstances, one is concerned only with the clear, the obvious, with questions that cry out for answer.'

I respectfully agree with those observations, which reflect the limited nature of the court's supervisory jurisdiction over the tribunal. Although counsel for the petitioner in the present case understandably emphasised the need for 'anxious scrutiny', it is necessary to remember that the court's jurisdiction to interfere with the decisions of adjudicators or of the tribunal is based on the same fundamental principles as apply in other areas of administrative responsibility. Although the tribunal is not restricted by Wednesbury principles in considering whether to entertain an appeal, the court has to apply those principles in deciding whether to interfere with the tribunal's decision."

[70 ] In the circumstances of the present case, and for the reasons outlined by the Respondent, I am not satisfied that The Immigration Appeal Tribunal should have concluded that (a) the appeal would have a real prospect of success; or (b) there is some other compelling reason why the appeal should be heard.

[71 ] The onus is on the petitioner to establish his case albeit that the standard of proof to be applied is the lower one appropriate to asylum cases as set out in Karanakaran [2000] Imm AR 271 (especially at pages 302 and 303).

[72] In order to obtain protection under the 1951 Convention, the petitioner required to demonstrate that he was, by reason of well-founded fear of persecution for the specified reasons, outside the country of his nationality, and was unable or unwilling to avail himself of the protection of that country. It was for the Petitioner to satisfy the adjudicator that he was unable to avail himself of such protection in Albania. There was no need, in my view, for the question of internal relocation to be raised in the respondent's letter. The question of internal relocation was put in issue by the Petitioner. It was part of his account. The account which he gave to the Adjudicator included his move to Durres. At the hearing, his solicitor responded to submissions concerning internal relocation. Submissions were made in relation to internal flight. They are referred to in paragraphs 20 and 21 of the adjudicator's determination. There was no motion to adjourn. In my view, in those circumstances, the facts of the present case fall to be distinguished from the cases relied upon by the petitioner.

[73 ] I am not satisfied that there was any material procedural unfairness or impropriety by the Adjudicator or by the Immigration Appeal Tribunal. That in itself is a sufficient answer to the Petitioner's first ground of review.

[74 ] Further and in any event, in my view, the preliminary issue raised by the Respondent is also fatal to the Petitioner's first ground of review.

[75 ] The Respondent's submissions fall to be preferred.

Unreasonableness?

[76 ] In relation to the second ground of review, alleged unreasonableness, I am not satisfied that the Immigration Appeal Tribunal should have concluded that (a) the appeal would have a real prospect of success; or (b) there is some other compelling reason why the appeal should be heard.

[77 ] On a fair reading to his determination, the adjudicator did have regard to the petitioner's account relating to relocation (see for example paragraphs 16, 29, 35, 38 and 39). I can detect no material error in his approach. He reached a different conclusion from the one suggested by the Petitioner but that is a different matter.

[78 ] The Adjudicator concluded (in paragraph 38) that, were the petitioner to relocate within Albania, he would find that he could pursue his political activities without there being any real risk of his being subjected to ill-treatment from the local police. Further the Petitioner would find there a sufficiency of protection for him and his family should he or his family again be threatened by political opponents.

[79 ] The Adjudicator concluded (in paragraph 39) that:-

"The Appellant and his family successfully located to Durres."

[80 ] He found that there really is nothing in the evidence to his mind which would justify the conclusion that it would be unduly harsh to expect the Appellant and his family to relocate to an area where the police force act in a proper and acceptable manner.

[81 ] The Adjudicator concludes (in paragraph 40) that relocation to an area where there exists a sufficiency of protection for the Appellant provides the answer to any claim the Appellant may have under the Refugee Convention or ... Article 3 of the Human Rights Convention.

[82 ] In my view, the Adjudicator and the Immigration Appeal Tribunal were entitled to reach the conclusions which they did.

Inadequate Reasons?

[83 ] In my opinion, the reasoning of the Adjudicator and the Immigration Appeal Tribunal was adequate.

[84 ] On a fair reading, the Adjudicator's determination (No 6/2 of Process) leaves the informed reader in no real doubt as to what the reasons for it were and what were the material considerations which were taken into account in reaching it. That is sufficient to meet the Petitioner's criticisms.

[85 ] Further and in any event, alleged inadequacy of reasons was not a ground of appeal included in the Petitioner's application to the IAT for permission to appeal. Nor does it feature in the present petition.

[86 ] The preliminary issue raised by Respondent (outlined above) is also fatal to Mr Govier's new submission relating to inadequacy of reasons.

Conclusions

[87 ] In essence, I agree with the submissions advanced by the respondent.

[88 ] I am not persuaded that there is a sound point of law in the petitioner's favour.

[89 ] The Adjudicator was entitled to come to the conclusion which he did.

[90 ] The reasoning of the Adjudicator and the Immigration Appeal Tribunal was adequate.

[91 ] I agree with the views expressed by HH Judge Ainley in the determination of the IAT (No. 6/4 of process), namely;-

[92 ] The decision of the Immigration Appeal Tribunal was sound.

[93 ] I am not satisfied that the Court should interfere with the decision of the Adjudicator or of the Immigration Appeal Tribunal.

Decision

[94 ] I have given careful and anxious consideration to the decisions under scrutiny in this case and I have had regard to all the submissions advanced on behalf of the petitioner.

[95 ] However, for the reasons outlined above, I shall dismiss the Petition.

Further submissions as to Remedy

[96 ] I should add that, after the case was taken to avizandum, the Respondent lodged a Note containing further, written, submissions. The Respondent sought to withdraw a concession as to what the appropriate remedy should be in the event of my being persuaded to grant a remedy in favour of the Petitioner. In response, the Petitioner also lodged a Note of written submissions. The Petitioner opposed the Respondent's written submissions and invited me to grant the remedy sought.

[97 ] As I have not found in favour of the Petitioner the question of remedy raised in the Notes of written submissions is not a live issue. If it had been, I would have put the case out By Order to hear oral argument from both parties on the matters raised in their Notes. In light of my decision on the merits, however, that is not necessary.

[98 ] In the result I shall (a) sustain the first plea in law for the Respondent, (b) repel the plea in law for the Petitioner, and (c) dismiss the petition.

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