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EXTRA DIVISION, INNER HOUSE, COURT OF SESSION
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Lord Johnston
Lord Nimmo Smith
Lord MacLean
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[2007] CSIH 73
XA48/06
OPINION OF THE COURT
delivered by LORD JOHNSTON
in
APPEAL
against a decision of the
ASYLUM AND IMMIGRATION TRIBUNAL
by
AM
Appellant;
against
SECRETARY OF STATE FOR THE
HOME DEPARTMENT
Respondent:
_______
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Act: Devlin; Drummond Miller (Appellant)
Alt: Miss Carmichael; Office of the Advocate General (Respondent)
23 October 2007
[1] The appellant
is a Sudanese national who entered this country by clandestine means and
subsequently sought asylum. After sundry
procedure his application was refused by a designated immigration judge,
against which decision he appealed to the Asylum and Immigration Tribunal who
in turn refused the appeal and refused to grant leave to appeal to this court.
[2] In these
circumstances the appellant now seeks both leave to appeal and to submit the
appeal which we conjoined as one application.
[3] The
undisputed facts are that the appellant was both a university undergraduate and
also served as a conscript in the Sudanese Army at the relevant times. Against that background the findings of the
judge, which are relevant to this appeal, are as follows:
"17. The
Appellant said that as soon as he returned the head of his regiment
orally ordered him to the south,
telling him there was a written order to back this up. Others accepted the posting because they were
official soldiers not students. He thought
he was singled out because of his refusal to assist the intelligence
services. He refused. He had a 'big argument' with the head of
regiment in his office, in presence of members of the intelligence services,
for over an hour, then he was taken to the base prison. He accepted that regimental chiefs did not
normally enter into arguments with soldiers.
He could not explain why he had been allowed to do so. When he escaped, the guard he pushed over was
armed but he did not think the weapon was loaded because the guards had loaded
guns only at night. The guard chased
after him and four or five other uniformed guards joined in. He was pursued for about two or three minutes
until he reached the university close by where he was able to shake his
pursuers off among a lot of people and a lot of buildings. He was about 100 or 150 yards in front of his
pursuers when he reached the university.
No shot was fired nor did his pursuers threaten to shoot, although he
was scared that they might do so.
...
27. Despite
the Grounds of Appeal, it appears to me that the Adjudicator
clearly enough rejected not any
particular part but the Appellant's whole account in respect of his refusal to
carry out the last two months service, arrest, torture, and escape. For the reasons below, I do not consider this
rejection was speculative, but soundly based.
28. The
Adjudicator did not say there was a need for corroboration. He
was entitled to point to the absence
of a fairly obvious piece of evidence.
On the other hand, a description of scarring would have not taken
matters very far on the appellant's behalf.
I do not regard the absence of a medical report as a point of real
significance. It was not taken in the
refusal letter or by the Respondent at the hearing before me.
29. The
refusal letter takes the point that the Appellant would not have
been a particular target for refusing
to inform on fellow students. That
remains valid and unanswered. The
Appellant says he was singled out with two months of his service remaining. There was no sensible reason for him to be
selected at that time or among so many others in the same situation. There was no reason for the intelligence
services to concentrate on an unwilling recruit of no obvious worth. This aspect is not fatal in itself, but it is
adverse.
30. The
Respondent raised clearly in the refusal letter the incredibility of
the alleged escape from
detention. This point has now been
followed up through further statements and hearings. Significantly, the more the account is explored,
the more unlikely it seems. It seemed to
be made up on the spot that soldiers on guard during the day in Sudan can safely be thought to have
unloaded weapons. That seems a very
dangerous assumption on which to run, but even on the Appellant's account,
those who joined in the chase from the guardhouse might well have had
ammunition. It did not appear to have
occurred to him previously that they might have fired. The threat, or a warning shot, would have
been enough to bring him to a halt. The Vice
President acknowledged that the Adjudicator was entitled to come to the view he
did about the claimant's escape. I share
that view. It is a facile invention
which does not stand up to scrutiny.
31. There
is no sensible explanation of why the Appellant should have
been issued with the order to serve
on the south. His account of how that
order is issued is also incredible.
There are obvious discrepancies over the size of the unit and the military
rank involved, but differences of military culture and translation might
explain these. It is on the other hand
quite beyond belief that the officer issuing the order would engage in
discussion with a conscript over whether it was to be obeyed. The consequences
of refusal would have been peremptory, not the subject of protracted debate.
32. I
further find it incredible that the Appellant left by ship with no idea
where he was going. He is intelligent and well educated and his
family devoted substantial resources to his travel. I conclude that the Appellant is hiding the
true details and any record of his arrival because these would contradict his
claim. This deficiency also would not
have been on its own fatal to overall credibility, but it is another factor."
[4] As will be
seen from those extracts the basis of the judgment of the designated judge was
credibility, or rather lack of it, as far as the evidence of the appellant was
concerned. It was submitted to the
judge, both in proof form as regards evidence in chief and also verbally under
cross examination.
[5] Mr. Devlin
attacked the conclusions of the judge on five distinct heads, albeit they were
to some extent, at least as far as the first two are concerned, intermingled.
[6] He submitted
that the immigration judge had erred in respect of:-
1. Failure to
take into account all the relevant factors and circumstances with
regard to the activities of the
appellant, as given in evidence, when a student, which brought him to the
attention of the authorities.
2. A failure to
assess properly against that background why the appellant was
singled out by the army authorities
for service in south Sudan.
3. Failed
properly to consider the issue of whether or not he had been ordered to
go to the south by the army
authorities which order he had failed to obey or refused to accept.
4. There were
inadequate findings as to the circumstances alleged to have taken
place in the context of the
appellant's escape from custody having been, according to his version, placed
there consequent upon his refusal to go to the south.
5. Failure
properly to consider circumstances under which the appellant left the
country by ship.
[7] Under
reference to certain well-known authorities Mr. Devlin urged upon us the need
to treat issues of credibility in immigration cases with very great care,
indeed the word "anxious" is used in the authorities and, in any event, to look
at the matter in the context of the relevant country, namely Sudan, and not
against anything that might prevail in this country. It had, he submitted, to be recognised that
Sudan was a totalitarian regime indifferent to the freedom of the individual
and human rights, all of which he submitted had to form the background to any
consideration of the appellant's case.
[8] With regard
to the first submission and indeed linked with the second, Mr. Devlin
pointed to evidence contained in the proof before us given by the appellant to
the effect that he had been involved in student activities which could be
described as opposed to the regime and indeed had been arrested in the course
of a demonstration by students. This had
led him to the attention of the authorities.
In the relevant finding in this respect, and indeed in relation to the
findings as regards being singled out for special treatment, he submitted that
the judge had totally failed to take these matters into account or even mention
them which both provided a reason and an answer to the question which, in terms
of his findings, the judge held had not been answered.
[9] With regard
to the third submission relating to the order given to him to serve in the
south by the authorities Mr. Devlin simply submitted that the approach of the
judge was irrational in as much that he gave no real reason, other than his own
speculation, why this evidence was not acceptable to him. This was equally the case, he submitted, with
regard to the issue of escape which it appears that the judge rejected
completely thus implying he did not even accept the position that the appellant
had been taken into custody. Again Mr.
Devlin submitted that there was no rational basis for the conclusion reached by
the judge which caused him to reject this evidence as incredible. Finally he submitted that the circumstances
surrounding his departure from the country and in particular the fact that he
did not know where the ship he had boarded was bound was, he submitted, nothing
to the point and in any event, once again, the judge had failed to give reasons
to justify his reliance upon this position.
[10] Miss
Carmichael, for the Minister, maintained that this was what she described as "a
reasons" case and as such it was sufficient if, on the face of his conclusions,
the judge had given reasons to support his position and, in particular, his
findings of lack of credibility as far as the appellant was concerned in more
or less every aspect of the relevant submissions made to him on behalf of the
appellant and by him. The test was
whether or not the judge was entitled to reach the conclusions that he did. He had assessed credibility with care and we
should accordingly not interfere with his decision.
[11] We should
record that we were referred to a number of authorities but we consider this
case requires to be determined upon its own facts and circumstances. The most important cases referred to us were,
respectively, Wani v Secretary of State for Home Department
2005 SLT 875; W321/01A v Minister for
Immigration and Multicultural Affairs, a decision of the Federal Court of
Australia reported at FCA210 (11 March 2002);
Regina v Ministry of Defence, ex parte Smith 1996 QB 517 and HK v The
Secretary of State for the Home Department, a decision of the Court of
Appeal promulgated on 20 July 2006.
[12] In seeking to
determine this matter we have to note that the decision of the immigration
judge in relation to the issues of credibility is expressed in fairly trenchant
terms and is all-embracing in as much that he does not accept the position of
the appellant in any material respect as regards his credibility.
[13] Given that
state of affairs it is in our view essential that the immigration judge gives
clear reasons as to why he reached such a conclusion on credibility and we are
of the opinion that he has totally failed to do so.
[14] For example he
has left out of account, it would appear, the factors which Mr. Devlin prayed
in aid as to why the appellant had been singled out by the authorities. He gives, in our opinion, no rational basis
for the assertion that it was inherently unlikely that a soldier would
remonstrate with a decision of an officer in the army and therefore it is our
view that his conclusion as to the credibility of that issue cannot be
sustained. We are further of the view
that looking at the matter in the context of the findings which we have set out
it would appear that the judge does not even embrace the notion that the
appellant was ever in custody, but nevertheless also dismisses as incredible
his explanation as to how he managed to escape.
[15] Although we
are not seeking to substitute our own findings we have to comment that it does
not seem to us to be inherently unlikely that a person who refused to accept an
order given within the army confines might be sent to custody. Equally, we are of the view that the somewhat
bizarre explanation from the appellant as to how he managed to escape would suggest
that it was more likely to be true than not.
Be that as it may, it is sufficient for us to point to the fact that the
immigration judge does not appear to have approached the matter on the point of
view of the authorities requirements of great care and anxiety.
[16] Finally, we
are concerned as to what appears to us to be a wholly irrelevant statement in
finding 32 where he states "I conclude the appellant is hiding the true details
and any record of his arrival because this would contradict his claim". Miss Carmichael had to accept that that
statement was neither helpful nor indeed remotely comprehensible.
[17] For these
reasons we are satisfied that the immigration judge's approach to the issue of
credibility or lack of it is totally unsustainable by reason of lack of
adequate reasoning and in addition appears to have taken into account factors
which he should have left out of account and vice versa. In all these circumstances we are of the view
that this appeal must succeed.
[18] It follows
from that conclusion that the matter requires to be remitted back to the Asylum
and Immigration Tribunal for re-consideration.
