Scottish Court of Session Decisions

"We managed to get information that my father was accused of being a member of UMMA. (He actually was a member)."

"Subsequent to the submission of Mr El Abas' [statement] it has been established that his father was not a member of the UMMA party but a paramilitary force which was sympathetic to the aims of the SPLA. This was established in discussion with his maternal uncle. Little more about the nature [of] this organization has been revealed to Mr El Abas. This has been established in discussion with his uncle following the drafting of the initial statement."

"Q4. Why didn't you want to go to the south?

"4. You have claimed that you are a deserter from the army because you did not want to fight Christians in the South. The Secretary of State notes that you have given no ideological basis to explain your unwillingness to undertake military service and, on the evidence available, he does not consider that your unwillingness to do military service arose from a genuine political, religious or moral conviction... You have stated that you fear imprisonment or torture if you return to Sudan because you are a deserter, however the Secretary of State is aware that, in practice, army deserters and military service draft evaders are re-drafted into the army... [T]he Secretary of State is of the opinion that you would not be at risk of persecution if you were returned to Sudan. He considers that you have not provided any evidence to suggest that you would suffer a disproportionate punishment for desertion or draft evasion for one of the reasons stated in the 1951 United Nations Convention relating to the Status of Refugees. He considers that your claim to fear persecution based on your draft evasion lacks credibility.

5. The Secretary of State has taken into account your claim that the security forces arrested your father because he was a member of the UMMA party on 21 October 1995. You claimed that they came to your house 20 days after his arrest wanting documents that they claimed he had given you. You claimed that they regularly visited your house twice a month threatening to beat you if you did not give them the alleged documents. You then started your military training on 10 August 1997 and finally left Sudan on 15 October 1997. When interviewed on 24 October 2000, you stated that the reason you left Sudan was because the security officers came to your house asking about your father in later 1997 (question 7 refers). You also claimed that the security forces knew of the alleged document in early 1997, however they did not come to question you until later in 1997. The Secretary of State has noted the discrepancy between your original statement when you claimed they questioned you twice a month from November 1995 until you left in October 1997 and the account you gave during your asylum interview when you stated they questioned you in late 1997. He believes that these inconsistencies cast doubt on the credibility of your claim...

6 Furthermore, your statement claimed that your father was a member of the UMMA party, however the Scottish Refugee Council's letter dated 30 August 2000 claimed that this was an error and your father was actually a member of a paramilitary force sympathetic to the aims of the Sudan People's Liberation Army (SPLA). When interviewed on 24 October 2000, you were asked whether your father was in the SPLA and you replied 'I don't know' (question 24 refers). The Secretary of State has taken this inconsistency into account and considers that as you did not appear to know which political party your father was a member of, the credibility of your claim is further damaged."

"Eventually, when I was about 19 I confronted him and asked him what he was doing. He sat down with me and explained that he was a member of the SPLA. He showed me the leaflets that he distributed and we spoke about it. I went off and read the leaflets and I could understand why my father was involved with this organisation...my father's people live in the heart of the troubles.

...

As far as I was aware, my dad was the main member in Kosti. He would distribute the leaflets and organise meetings..."

"They said that my father had told them that I had an envelope and they asked if I could have it... they kept coming back, maybe about twice a month...".

"I could not have gone to fight in the south. My father is a member of SPLA. I would be fighting against my father's people... The people in the south are innocent, they are my people and I would not kill them... I did not want to fight against my own people."

"At no point did I say that my father was a member of the UMMA party. My father was a member of the SPLA. The translator had difficulty translating SPLA because the translator was not Sudanese. In the interview, the interviewer talked about the UMMA party saying my father was a member of the UMMA party and then they went on immediately to talk of the SPLA. I did not know which party they were referring to when they asked me this question."

"9. In summary, the appellant's evidence was that he had lived in a place called Kosti with his parents and younger brother... When the appellant was about 19 his father had told him of his membership of the SPLA... He thought his father was the main member in Kosti, later amended in oral evidence to being one of the main members. Although an Arabic speaking Muslim, his father's family lived in the south.

Although the transcript of the interview mentioned the UMMA party, the appellant blamed that on the interpreter, who was not Sudanese. He had said SPLA... He feared being tortured or killed if returned. He would defend his country from foreign attack but did not want to fight other Sudanese. In cross-examination he insisted that his father had told him he was a main member. At [Q.24] of the interview, it is recorded that the appellant did not know if his father was a member of the SPLA. He blamed that on interpreter error and said that the question was whether his father was a member of both parties or only one of them so he said he did not know. It was an Iraqi interpreter. He confirmed that the error was also in the statement taken by his solicitor. He confirmed having discussed the matter with his previous representative before the letter [from the Scottish Refugee Council] was written. His uncle had basically said what he knew to be true, that his father was in the SPLA not UMMA... After his father's arrest security officers had come to the house regularly, once or twice a week for months. He denied having specified twice a month in his statement."

"19. The Republic of Sudan is a large Islamic state... Sudan has a population of about 27.5 million with differing ethnic origins within it. Arab culture and language predominate in the north where the majority of the population are Muslims. There was a coup in 1989 which led to a military government, with the power resting with the National Islamic Front (NIF), which became the National Congress (NC) in November 1998...

21. There has been a civil war for more than twenty years. The conflict centres around rebels in the south who wish to secede from the north. The population in the south is mostly animist or Christian. The government is presently engaged in conflict with a faction of the Sudanese People's Liberation Army (SPLA) led by Colonel John Garang and mostly belonging to the Dinka ethnic group. Other factions have signed the peace accord of April 1997. The UMMA party is a Mahdist party based on a Muslim sect. Its leader returned to Sudan in November 2000 after being in exile."

"25. I did not find the appellant to be credible or his evidence to be reliable. He was vague and inconsistent as to the party to which his father allegedly belonged. He stated that it was UMMA not only at interview but also in the statement prepared with his own representatives. It was not credible to blame the Home Office interpreter where he has also said that plainly in a document submitted on his own behalf. In addition, the SRC letter ... indicates that the alleged fact that his father was in a paramilitary force sympathetic to the aims of the SPLA was something revealed by his uncle rather than the appellant. His insistence that his uncle had told him something he already knew, which he made in oral evidence, is not in the circumstances credible. The suggestion that his father was a member of the UMMA party plainly came from the appellant himself and it is not the case that it was an assertion by the Home Office as claimed by the appellant in his original grounds of appeal. The appellant said that his father's 'people' came from the south, yet elsewhere said that he had no relatives other than in the north. It is simply not plausible that an Arabic speaking northerner of the Muslim faith would be involved with the SPLA in the south. A glance at any map would show that the town of Kosti is in the north, nearer to Khartoum than the south. It is not plausible that security forces would repeatedly visit the appellant to get documents when quite plainly anyone in possession of documents would dispose of them after the first visit. These alleged visits, and the appellant was not consistent about how often they occurred, were not severe enough to amount to persecution. If they were, the appellant has no reasonable explanation as to why he did not leave immediately. The appellant was not a member of a political party and there is no reason why the government would be apprehensive that he would join the SPLA. On the appellant's account his troubles really started with his desertion. Deserters are not a social group. If the appellant had any moral objection to war then I do not consider that he would have joined the army in the first place. The Sudanese army is engaged in civil war and that would have been obvious to anyone on entering it. Such objective information as I have indicates that the appellant would be redrafted if he returned, if I accept that he escaped or deserted at all. The manner of his desertion is so implausible as to be completely unbelievable. In the circumstances I do not consider that the appellant has made out his claim under the 1951 Convention or the ECHR."

"No rational inference can be drawn from the fact that the appellant was vague and inconsistent about the party to which his father belonged. The appellant gave evidence which suggested that his knowledge of his father's political involvement was incomplete and second hand."

"There is no necessary inconsistency in the appellant saying that his father's people came from the south, but that he had no relatives other than in the north. It is perfectly possible that the appellant's father had roots in the south, but no longer had any connections there."

"The SPLA is a paramilitary opposition force. The appellant did not claim to be associated with them... In any event, there is no reason to suspect that a northerner would not join the SPLA. No objective evidence was led in this regard."

"At no point did the adjudicator make any finding in fact as to whether the conflict in south Sudan was condemned by the international community as contrary to the basic rules of human conduct."

"Leave to appeal shall be granted only where:

"After hearing oral evidence from the applicant the Adjudicator did not find his evidence reliable and set out reasons for that conclusion. On the issue on the manner of his desertion he was found completely unbelievable. This Tribunal is loath to interfere in conclusions relating to credibility when an Adjudicator has had the opportunity to hear oral evidence and cross-examination and balance that against relevant country information. On the totality of the evidence I am satisfied that the grounds of appeal do not indicate an arguable basis for an appeal to this Tribunal in accordance with the provisions of Rule 18(7) of the Immigration and Asylum Appeals (Procedure) Rules 2000."

"It follows from what we have said 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...

It is now, however, necessary for us to identify the circumstances in which it might be appropriate for the tribunal to grant leave to appeal on the basis of an argument not advanced before the special adjudicator...

Because the rules place an onus on the asylum-seeker to state his grounds of appeal, we consider that it would be wrong to say that mere arguability should be the criterion to be applied for the grant of leave in such circumstances. A higher hurdle is required. The appellate authorities should of course focus primarily on the arguments adduced before them, whether these are to be found in the oral argument before the special adjudicator or, so far as the tribunal is concerned, in the written grounds of appeal on which leave to appeal is sought. They are not required to engage in a search for new points. If there is readily discernible an obvious point of Convention law which favours the applicant although he has not taken it, then the special adjudicator should apply it in his favour, but he should feel under no obligation to prolong the hearing by asking the parties for submissions on points which they have not taken but which could be properly categorised as merely 'arguable' as opposed to 'obvious'. Similarly, if when the tribunal reads the special adjudicator's decision there is an obvious point of Convention law favourable to the asylum-seeker which does not appear in the decision, it should grant leave to appeal. If it does not do so, there will be a danger that this country will be in breach of its obligations under the Convention. When we refer to an obvious point we mean a point which has a strong prospect of success if it is argued. Nothing less will do."

"11. In my judgment similar principles apply to issues of fact which have not been properly taken before the Immigration Appeal Tribunal. The Immigration Appeal Tribunal is not to be criticised and its decisions are not, in my judgment, to be quashed because it is possible to rake through the material before it and find an error of fact on the part of the adjudicator which has not been brought to the attention of the Immigration Appeal Tribunal and is not one which is, or was, readily discernible.

12. In cases where the parties are legally represented, it seems to me that it is not incumbent on the Tribunal, as I say, to analyse all the material to see whether there is some issue of fact which has not been taken on behalf of the applicant for asylum, and which could have been. On the other hand, if one is readily discernible, that is to say obvious in that sense on reading the material, it is one which the Immigration Appeal Tribunal should bear in mind and take into account in making its decision provided it is one which if taken would have a strong prospect of persuading the Tribunal to grant leave to appeal."

"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."

"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."

"15. Lastly, it is of course right that in general the Tribunal, the adjudicator and indeed the court, when dealing with questions of fact and, in particular, questions of credibility, must have regard to all of the evidence and weigh it all up. There may be a danger of too formulaic an approach. An appreciation of the correctness of a decision of an adjudicator or a Tribunal must, to some extent, be tailored to the material before the adjudicator and the Tribunal. There may be cases, and indeed I think it is argued that this is one, where there are facts which so strongly indicate either the credibility or the incredibility of the account given by the claimant for asylum (the same must apply to any other kind of adjudication) that a number of other matters become somewhat peripheral and perhaps barely relevant or material.

16. In such cases it seems to me that the court would be slow to interfere with a decision of a Tribunal because it had regarded some matters as not sufficiently material, or indeed immaterial, assuming, of course, that the evidence and considerations which led to the finding of credibility or incredibility, as the case may be, were sufficiently strong in the first place. As I have indicated, such cases must be cases where there is some fact, or some accumulation of facts, which point extremely powerfully one way or the other. However, it does seem to me that this is a case which the adjudicator did approach in that sort of way, as did the Tribunal."