Asylum seeker who claimed tribunal judge’s questioning was ‘unfair and biased’ fails in bid for judicial review

Shahin Abdullahi alleged that the First-tier tribunal judge gave the impression of “a lack of partiality” after asking him a series of questions to “attack his credibility”, but the Upper Tribunal refused permission to appeal.

The petitioner sought judicial review of that decision, but the Court of Session refused the application after ruling that the approach by the tribunal judge was both “fair and reasonable”.

Asylum claim

Lady Clark of Calton heard that the petitioner claimed to be “in fear of his life at the hands of the Iranian authorities”, but his claim for asylum was rejected by the Secretary of State for the Home Department in August 2016.

Six months later his appeal was heard by a judge of the First-tier Tribunal (Immigration and Asylum Chamber), but was refused after the judge found that there were “significant implausibilities and discrepancies” at the core of the claims.

There was no cross-examination on behalf of the Secretary of State, but the First-tier Tribunal (FTT) judge asked the petitioner a series of questions which were translated to the petitioner in his native language, Kurdish Sorani.

Mr Abdullahi raised a number of issues challenging the fairness of proceedings, arguing that the FTT judge had intervened to “a material degree” to challenge the petitioner on the merits of his evidence; that the questioning went “far beyond” what was required; that the judge gave the impression of a lack of partiality and that there was a “failure to conduct the hearing fairly”.

It was alleged that the judge had asked some 70 questions which were “arguably obtuse” in order to introduce evidence in respect of which the appellant could be criticised and conducted the hearing “in a manner which … suggested that she had predetermined the appeal”.

The Upper Tribunal refused permission to appeal after observing that judges are entitled to ask questions and that the application had failed to cite even one example of an unfair objectionable question.

‘Unfair hearing’

The petitioner sought judicial review of that decision, arguing that the FTT judge was “unfair and possibly biased”.

It was submitted that the judge intervened in an inquisitorial manner in what is meant to be an adversarial process and that she “exceeded her role” by asking questions which were in the nature of “cross-examination”.

On the legal test to be applied for apparent bias, counsel referred to Alubankudi UKUT 542 (IAC) and Sivapatham UKUT 00293 (IAC) to argue that a fair-minded observer properly informed of all the relevant facts and circumstances would conclude that there was a “real possibility” that the judge was biased.

However, counsel for the respondent submitted that the short answer to the petition was that there was no relevant challenge to the Upper Tribunal decision because in the circumstances of the case, there was “no error of law” by the Upper Tribunal and that on the information presented to the Upper Tribunal, the decision was “sound”.

Turning to the merits of the petition, counsel argued that the guidelines supported the approach of putting discrepancies of importance to an appellant in appropriate circumstances where fairness requires it, and that the questions asked by the judge should be seen in the context of the previous questions at the asylum interview and the reasons given by Secretary of State for refusal.

Further, it was it was submitted that the whole proceedings must be looked at, including the lack of objection by the solicitor representing the petitioner, the specific offer to the solicitor by the judge to make further submissions, the lack of any complaint by the solicitor in the affidavit and the difficulty faced by the judge of obtaining necessary clarification of issues and putting possible concerns about credibility to the petitioner in fairness for his comment.

‘No error of law’

The judge considered that there was an “attractive simplicity and force” in the first submission by counsel for the respondent, but having considered the merits of the petitioner’s case she refused the order sought after ruling that there was “no error of law and no real prospect of success”.

In a written opinion, Lady Clark said: “I consider it of significance that the petitioner’s solicitor in his affidavit did not suggest that there was anything about the tone, pace or manner of the questioning which was unfair or problematic. The solicitor in his affidavit did not express any concerns about the questioning or about the fairness of the proceedings.

“I note that in the record of proceedings prepared by the First-tier Tribunal judge, which was not disputed, the judge thanked the petitioner at the end of the questioning and noted a question, presumably directed at the petitioner’s solicitor: ‘Anything you want to ask arising out of my questions?’ She then asked if he was in a position to make his submissions and the solicitor confirmed that he was. There was no objection by the petitioner’s solicitor to any of the questions asked by the judge and he did not take advantage of the offer by the judge to ask any further questions at the end of the questioning by the judge.

“This is a case in which the judge commenced questioning at the end of the very limited oral evidence in examination in chief and in circumstances where there was no cross-examination by the respondent. I consider that any criticism of the timing is ill founded. And in a case such as this it was well within the accepted guidelines for the judge to ask questions…Most of the questions by the judge were short and open questions covering a variety of subjects which take into account the asylum interview and the reasons given by the Secretary of State for refusal in a decision letter dated 18 August 2016.”