England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT
ADMINISTRATIVE COURT LIST
(IMMIGRATION APPEAL TRIBUNAL)

		Royal Courts of Justice Strand London, WC2 Tuesday, 29 October 2002

1. LORD JUSTICE MANCE: This is a renewed application for permission to appeal on one point of law said to arise from the decision of the Immigration Appeal Tribunal dated 15 July 2002. The Immigration Appeal Tribunal upheld the determination of the Adjudicator, Mrs Gurung-Thapa, dated 28 January 2002 whereby she found that the applicant, Mrs Zeinab Malik, does not have a well-founded fear of persecution for a Convention reason in the Sudan.
2. Mr C Vokes, who appears for the applicant, puts in the front of his submissions this point: given applicant's past activities in her home country and the consequent attention which the authorities had paid her, and given that persons in similar background have been recognised as subject to persecution, can the tribunal conclusion that Mrs Malik does not have a well-founded fear of persecution for a Convention reason in the Sudan stand?
3. As Lord Justice Latham indicated, and as Mr Vokes accepted, the test on an appeal would be whether the tribunal had come to a conclusion which was perverse or one which no reasonable tribunal could have reached.
4. The applicant was born in the Sudan in 1960. She qualified as a lawyer in Morocco in 1984 when she concluded her university training. She practised law in the Sudan from about 1988 and in Khartoum from 1990 until 1993. She had, and has, a strong interest in women's rights in the Sudan. Her ancestors include members of the well-known Bedri family. Her father is a leading dentist known to the authorities as a communist and trade unionist. Her aunt was the wife of the former Secretary General of the Sudanese communist party who was executed by a former Sudanese regime in 1971.
5. From time to time the applicant attended international conferences on the subjects in which she was interested. On returning from a conference in 1982 she was questioned for one and a half days. On a subsequent occasion, after attending another conference on human rights in Morocco in 1993, she was again detained. It was suggested that this was for a day but she said in evidence, and it seems more likely, that it was one and half hours.
6. The adjudicator heard from her about various other alleged incidents, particularly questioning about her lectures in 1989, questioning about her membership of the Women Law and Development (WLD) (Africa) Organisation and on another occasion making a sanitised report after she attended a conference in Scotland in 1995. However, the adjudicator considered, even assuming these incidents to have occurred, that they did not constitute persecution. The adjudicator also found that the applicant had fabricated an account of being interrogated on many other occasions and had likewise:

" . . . made great play of the fact that she was a member of the Democratic Front from the early 1980s to the present day in order to bolster her claim for asylum."

7. In this country in her interview she failed to mention her active membership of the Democratic Front, which is associated with the Communist party.
8. The Immigration Appeal Tribunal considered the adjudicator's findings in this respect and upheld them in paragraph 9 of its determination, saying:

"Having read the appellant's exhaustive witness statement in conjunction with her interview notes, we find that the adjudicator was entitled to come to that conclusion."

Namely, that the appellant had to some extent exaggerated her circumstances in order to bolster her claim.

9. In January 1993 the appellant married a Sudanese who had left the Sudan in 1999 as a member of the communist party and was living and working in Saudi Arabia. She was only after delay able to obtain an exit visa to join him in October 1993. This appears to have been the first occasion on which she used the good offices of her father who was not without some influence. He knew someone in the relevant department. She then gave up her legal practice. She returned to the Sudan in February 1995 in order to raise funding to go to a conference in Edinburgh. Eventually, the British Council funded her in June 1995. She obtained an exit visa through her father and his contacts. She spent two months in the United Kingdom, attending amongst other things the conference. On her return to the Sudan she made the sanitised report on the conference, stating that she had not talked about political affairs in the Sudan. Again she acquired an exit visa through her father.
10. She stayed in Saudi Arabia for two years, returning to the Sudan in August 1997 since her father was ill. She also had to renew her Saudi Arabian residency. She gave a lecture on female rights in the Al Fahd University on 1 September 1997. She discovered during this stay that, although she had been paying to renew her lawyer's licence, some members of the Bar Association were taking the line that the licence had not been renewed. However, the secretary of the Bar Association seems to have supported her position with a letter, but others told her to take up the matter after the Bar elections. It would appear, by inference, that those other members did not want her to vote. After one month she left the Sudan, again using her father's contacts, leaving the position relating to her licence unresolved.
11. In September 1998 her husband was about to lose his Saudi Arabian employment and residency and they both came to the United Kingdom and claimed asylum. Their marriage was in difficulty and they separated in January 1999 and divorced in March 1999.
12. Before the Immigration Appeal Tribunal, Mr Vokes concentrated, as he has before us, on the question of safety to return to the Sudan. It would seem that he may below have put a somewhat different emphasis on his submissions. In particular he sought to derive more assistance from subsequent activities in this country, since those are dealt with in a number of paragraphs of the Immigration Appeal Tribunal's determination. No doubt he relied on the decisions of the Immigration Appeal Tribunal dated 3 November 1999 in the case of Siddeig v Secretary of State for the Home Department, and in this court in Danian v SSHD [1999] INLR 533, which was followed in Siddeig. He asserted that a large number of organisations, of which the appellant has been and possibly still remains a member in this country, were and are now associated with the communist party (see paragraph 5 of the tribunal's determination).
13. The tribunal questioned the position in this respect and, with justification, questioned whether the organisations identified, which included the International Bar Association, were really associated with the communist party. It stated that there was no evidence to justify that conclusion in respect of any of the organisations (see paragraphs 5 and 16). The tribunal thought however that the adjudicator had understated the extent to which the applicant had been of interest to the authorities whilst in the Sudan, but it agreed with the adjudicator's assessment that her activities:

" . . . had not been of such a high level in the Democratic Unionist Party in the Sudan as the [applicant] would have the adjudicator believe."

Mr Vokes submits, and I am fully prepared to accept for present purposes, that that is a mistake and that it should be a reference to the Democratic Front.

14. Further, the tribunal thought that the applicant's activities had been more slanted towards various women's and legal activities than active opposition to, or to any party in, the existing regime. The tribunal accepted the applicant's detention and questioning on two occasions, but it pointed out that such detention did not involve any violence towards her and did not, in the Sudanese context, consider that it was of a persecutory nature. The two occasions stated in the tribunal's report are in 1995 and 1997, but that would appear to be an error for 1992 and 1995 which were the occasions identified by the adjudicator.
15. The tribunal also pointed to the applicant's father's position. He had been living, so far as appeared, unmolested in the Sudan and able to exercise some form of influence, even if only behind the scenes. He was certainly not subject to any suggested persecution on a current basis. The tribunal distinguished Siddeig on the facts, bearing in mind what was known about the applicant's actual activities in the Sudan. The authorities knew of the applicant and her activities and had seen her enter and depart without persecution and without interference save on the two occasions to which I have referred. The tribunal could see no basis for the contention of an expert, Mr Verney, that she was, ". . . already under suspicion and if she is detained again she will be regarded as an enemy of the State, as she no doubt is already."
16. Against that background, Mr Vokes submits that there is a prospect of establishing that the tribunal's conclusions, essentially of fact but also of law, were conclusions which no reasonable tribunal could reach. He submits that the present position conflicts with the decision in Siddeig where a differently constituted tribunal found that a man with no previous record of activity in the Sudan could, after joining the communist party after arrival in the United Kingdom and being a low level member, make out his claim to be a refugee on the basis of persecution.
17. We do not have the detailed evidence that was before the tribunal in Siddeig. The case undoubtedly differed from the present case in one point identified by the tribunal, namely that the relationship and relevance of the activities of the applicant to the Sudanese authorities have been tested and demonstrated and form the most reliable possible guide to the way in which they are likely to treat her in the future, unless there is some evidence of a real change in their attitude to persons such as the applicant. Each case must depend on its own facts. It is difficult to create an error of law out of a different appreciation of different facts by two different tribunals. The facts are obviously not on all fours with Siddeig. I do not think that this particular submission is made good.
18. I would also point out that, although the grounds and skeleton refer to paragraph 4 of Mr Verney's report for the proposition that the applicant is herself a member of the communist party, that paragraph simply records that she married a communist, and her interest in the Democratic Front is one which the adjudicator and the Immigration Appeal Tribunal considered to have been exaggerated. It is not one which they considered could give rise to any real risk of persecution.
19. The applicant is now divorced. The communist party background and her family connections had not, on the adjudicator's and tribunal's findings, not led to persecution in the past of those members of the family. The tribunal rejected her case that she had been an active member of the communist party in this country as distinct from her support for her traditional interests associated with women's rights and the law. In all these respects the case differed from that of Siddeig, particularly when the tribunal was able to consider how she had been treated by the authorities who had knowledge of her interests and activities.
20. Danian v SSHD [2000] IAR 96 is also a different case on the facts from the present case. The conclusion in that case rested on activities undertaken after leaving the home country. The question was whether the motive for which those activities was relevant (and to what extent) when one came to consider whether a genuine well-founded fear of persecution could be shown. In this case that question does not arise. Mr Vokes submits that the tribunal's rejection of Mr Verney's assimilation of the applicant to an enemy of the people was illogical or inherently contradictory. However, it seems to me that opposition to certain aspects of state policy or speaking in favour of women's rights, even if the contrary is the policy of the State of Sudan, does not make one an enemy of the State in such a way as to lead to persecution. Again, the actual course of events in the Sudan is of relevance.
21. Mr Vokes submits that the distinction between opposition to state policy and being an enemy of the state is a fine line. It depends on the authorities maintaining that view. Authorities in countries such as the present may and do behave unpredictably. However the Industrial Appeal Tribunal had to evaluate on which side of any line this applicant fell. It took a clear view which seems to have been firmly based in the history of her actual activities and movements.
22. Mr Vokes referred us to some of the evidence which was put before the tribunal, including a letter referred to in paragraph 5. We do not have a copy of that letter, and it was obviously not a letter which the tribunal regarded as of great or conclusive significance. It does not seem to me that we can do so either, particularly when it is not before us.
23. There was other evidence, particularly that of Mr Verney, but also letters from the deputy foreign editor of the Guardian and a former Sudanese judge. Those letters were no doubt taken into account by the tribunal in forming their conclusions. The tribunal was also entitled to draw on its own general experience. It seems to me that a head-on challenge to the reasonableness of its factual conclusions is not one which is going to be maintainable in this court.
24. It is also pointed out that in paragraph 19 the tribunal expressed itself inappropriately in saying that, although it had no doubt that the appellant, were she to return, would be questioned with regard to her activities in this country and with regard to her activities prior to her departure some years ago, there was a reasonable likelihood that the question would result in her release as it had on the previous two occasions that she visited the country. That was an incorrect approach. Had that been the essence of the decision, then Mr Vokes' application would have stood on a different and much more solid footing (see Demirkaya v SSHD 23 July 1999; [1999] INLR 441).
25. Reading the tribunal's determination as a whole, the position is different. The tests were set out accurately by the adjudicator. In its conclusion the tribunal said:

"However, in relation to her claim that there is a reasonable likelihood that she would be persecuted upon her return to the Sudan, for the reasons which are indicated above, we are unable to uphold her appeal and it is accordingly dismissed."

Concluding the determination as a whole, it seems to me that the tribunal approached the matter correctly. Mr Vokes did not put a contrary submission in the forefront of his submissions before us today.

26. Returning to the central question, we have to consider whether there is a real prospect of showing that no reasonable tribunal would have reached, or could have reached, the conclusion which the Immigration Appeal Tribunal did, bearing in mind that that tribunal is the judge of fact. I remain of the view, having fully considered the matter, that there is no such reasonable prospect and, therefore, this renewed application should be dismissed.
27. LORD JUSTICE LATHAM: I agree.

Order: Application dismissed. Community Services Funding.