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Cite as: [2004] ScotCS 139

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Abdallah, Re Against A Determination Of The Immigration Appeal Tribunal [2004] ScotCS 139 (21 May 2004)

FIRST DIVISION, INNER HOUSE, COURT OF SESSION

Lord President

Lady Cosgrove

Lord McCluskey

XA167/02

OPINION OF THE COURT

delivered by THE LORD PRESIDENT

APPEAL TO THE COURT OF SESSION

under section 23(1) of Schedule 4 of the Immigration and Asylum Act 1999

GAZI AHMED ABDALLAH

Appellant;

against

A determination of the Immigration Appeal Tribunal dated 3 October 2002

_______

Act: Party (Appellant)

Alt: Drummond; H. Macdiarmid (Respondent)

21 May 2004

[1] The appellant, who is a citizen of the Sudan, has appealed to this court against the dismissal by the Immigration Appeal Tribunal of his appeal against the determination of an adjudicator dismissing his appeal against the respondent's decision which directed his removal following the refusal of his claim for asylum. The single ground of appeal is in the following terms:

"The Immigration Appeal Tribunal erred in law by failing to take account of a specific and discrete portion of the appellant's evidence before the adjudicator when she concluded that her 'findings and conclusions were properly open to her on the evidence'. The adjudicator noted the appellant's evidence was to the effect that he would be at risk because 'having escaped from detention he would be considered a traitor who had gone elsewhere and was against the current regime'. The adjudicator did not criticise the credibility of that branch of the appellant's evidence. The immigration appeal tribunal erred in law in ignoring that evidence which was directly contrary to that on which it based its said conclusion".

[2] It is clear that in the first sentence the use of the word "she" was a mistake; what was intended was a reference to the Tribunal.

[3] The appellant's motion for leave to appeal was not opposed and was granted. The answers for the respondent stated that it had not been argued before the Tribunal that the appellant would be at risk of persecution for a Convention reason by reason only of his being an escaped detainee. The respondent later lodged a minute of amendment in which it was maintained that on that account the appellant should not be allowed to advance the ground of appeal. In his answers the appellant denied that the argument had not been presented to the tribunal.

[4] At the hearing of the appeal the appellant appeared before this court without legal representation. He communicated with the Court through an appointed interpreter.

[5] The assertion by the respondent that the ground of appeal was not presented to the Tribunal appears to be correct. It is not among the written grounds intimated to the Tribunal and it does not appear to have been advanced by counsel for the appellant at the hearing before the Tribunal. Counsel for the respondent relied in this Court on the decision of the Court of Appeal in Srimanoharan v Secretary of State for the Home Department,13 June 2000, unreported, in which the court declined to entertain an argument against the decision of a special adjudicator which had not been presented to the Tribunal. However, in that case the appellant's advisers had deliberately decided not to present the argument to the Tribunal. In the present case the reason why the ground the ground of appeal now sought to be argued was not put before the Tribunal is not apparent from the papers before us, and the unrepresented appellant could not help us to understand why not. As we have noted, the appellant's motion for leave to appeal was not opposed. The ground of appeal, which was prepared by solicitors then acting for the appellant, was before the Court when it granted leave to appeal. It was said by counsel for the respondent that, at the date when leave to appeal was granted, the respondent did not, in Scottish proceedings, oppose applications for leave to appeal. However that may be, the fact is that the appellant's application for leave to appeal on this ground was not opposed. We also bear in mind that in R. v Home Secretary, ex p. Robinson [1998] QB 929 Lord Woolf MR, delivering the judgment of the court, stated at page 945 that "it is the duty of the appellate authorities to apply their knowledge of Convention jurisprudence to the facts as established by them when they determine whether it would be a breach of the Convention to refuse an asylum-seeker leave to enter as a refugee, and they are not limited in their consideration of the facts by the arguments actually advanced by the asylum-seeker or his representative." In the light of these considerations we consider that it is appropriate that we entertain the ground of appeal and examine it in order see whether it could justify the allowance of the appeal.

[6] In her determination the adjudicator narrated that the appellant arrived in Scotland and claimed asylum in October 1997. He has been in Scotland since then. According to passages in his witness statement, which he confirmed in his oral evidence, he had been a member of the Umma Party, an opposition political party, since June 1995. His primary activity within the party was that of distributing leaflets in Khartoum. His problems had allegedly started in May 1996 when he was approached by three men in civilian clothes and taken from his place of work by car to an unknown destination. He was blindfolded for the car journey which took some 15 minutes. The blindfold was not taken off until he was in a dark room where he was left for about an hour. From that room he was taken to an office and questioned. He was accused of being against the regime and the government and distributing leaflets and advised that he had been put under surveillance. He was questioned by four men all of whom physically beat him. He was punched, kicked and hit in the face and legs. He claimed to have been "in great pain". He was then detained in a darkened room with two others in a "precautionary detention". On the day of his release he was warned that if he continued in his activities "anything could happen to him". He was driven back to the city blindfolded. He resumed his political activities about a month later. He managed to avoid the authorities until September 1997 when he was again apprehended by two men in civilian clothes. He was taken by car, blindfolded, to a different location where he was detained with five other people in a room with no sanitation and inadequate food. He was interrogated and beaten. He escaped from detention by bribing a guard who brought him food. He undertook to pay 20,000 Sudanese pounds to the guard in return for the latter's assistance. On the night of 22 September the guard took him to the perimeter gate and opened it. From there the appellant managed to get to an inhabited area where he sought directions for public transport back to Khartoum. The money which he had arranged to pay to the guard was worth about £5.00 Sterling, representing three months salary for him. It was paid by the Umma Party and picked up by the guard from an address given to him by the appellant.

[7] In his oral evidence the appellant reiterated that he would not be safe if he returned to the Sudan. Asked why he would be at risk, he responded that having escaped from detention he would be considered a traitor who had gone elsewhere and was against the current regime. In his submissions to the adjudicator the solicitor for the appellant maintained that if returned to the Sudan he would be identified as having escaped from a detention centre and would be apprehended and possibly killed.

[8] In her assessment of the evidence the adjudicator observed that the appellant had given an essentially consistent account, but that there were a number of features which weakened it. It appears, however, that she did not reject his evidence. She went on to state that, even accepting his account and the two instances of alleged ill-treatment the real issue was whether he would be at risk of persecution if returned to the Sudan, so as to engage the Convention. Having considered the evidence, the adjudicator proceeded upon the basis that, at the time when he left the Sudan, the appellant had been a low ranking member of the Umma Party. She found that, after the appellant had left, that party reached an accommodation with the ruling authorities and that, as a result, many leaders of the party had returned to the Sudan and had not been persecuted by reason of their membership of the party. She gave details to illustrate that members of the Umma Party would not encounter problems with the security forces on their return to that country. She dealt particularly with what she held to be the experiences of key, or leading, members of that party. She inferred that if the leading members were able to return without fear of persecution, there was no good reason to suppose that low-ranking members of the party had a justifiable fear of persecution by reason of their membership of the party. She then stated that the appellant on his own evidence was not a key political figure and if he returned as a member of Umma he would be unlikely to encounter problems with the security forces. This finding is of a general character and, in that respect, is one that the adjudicator was entitled to make in respect of a low-ranking party member of the party, such as the appellant. In conclusion the adjudicator stated: " On the totality of evidence submitted and notwithstanding the low standard of proof required in asylum cases I do not believe that there is a real likelihood the appellant would be at risk of persecution for a Convention ground, political opinion if he were to be returned to the Sudan. The appellant's alleged subjective fear is not borne out by his own account taken in its in entirety or the objective evidence".

[9] On one view the adjudicator did not fail to consider the appellant's evidence as to the significance of his having escaped from detention, since that was part of the totality of the evidence which she said that she had taken into account. There is, on the other hand, another way in which her assessment may be considered. While the adjudicator dealt expressly with the evidence about the appellant's membership of the Umma Party, she made no explicit reference to his evidence as to his escape and to the means by which it was said to have been effected, which was relevant to the question whether he had a well-founded fear of persecution. It is clear from her summary of his evidence that he regarded the fact that he had escaped from detention as the reason, or at any rate the primary reason, for his fearing persecution in the event of his being returned to the Sudan. Although she expressed certain reservations about the strength of the account given by the appellant, she did not state that she rejected the evidence which he had given, and in particular about the significance of his having escaped from detention. She made her determination on the basis of accepting his account. Her findings record the general background of torture and abuse by the regime's security forces of political opponents of the regime. While it is clear that the adjudicator treated the appellant as a low ranking member of the Umma Party, she did not address expressly the question of the significance of what had happened to the appellant as an individual, in escaping from detention by bribing a guard, using money said to have been provided by other party members.

[10] A comparison between these two views about the adjudicator's assessment shows that the point is a relatively narrow one. However, what is in issue in the appeal is a matter which is of direct relevance to the future safety of the appellant. We have no wish to encourage a pedantic approach to an assessment of evidence whereby it would be necessary for an adjudicator to demonstrate explicitly that every part of the evidence had been taken into account. However, in the present case we have come to the conclusion, although with some reluctance, that the adjudicator's assessment was flawed by reason of her failure to address expressly the evidence which the appellant had given about the circumstances of his escape from detention, which appeared to be central to his fear of persecution. This should have been apparent to the Tribunal which referred to the evidence which the appellant had given about his escape but did not identify the omission on the part of the adjudicator. For this reason we consider that the Tribunal erred in law. We should say that our reluctance is partly based on the impression which we have formed that, when regard is had to the objective evidence as set out by the adjudicator, this might have made no difference to the end result. However, we were not addressed on that point, and in any event it is a hypothetical question, the answer to which would depend on the cogency of the appellant's evidence when taken together with the whole available objective evidence.

[11] In the circumstances we will sustain the ground of appeal, quash the Tribunal's decision and remit to the Tribunal to proceed as accords.