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Wanza v. The Secretary Of State For The Home Department [2005] ScotCS CSOH_138 (28 October 2005)

OUTER HOUSE, COURT OF SESSION

[2005] CSOH 138

OPINION OF LORD MACFADYEN

in the Petition

PETER WANZA (AP)

Petitioner;

against

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT

Respondent:

for

Judicial Review of a decision of

the Immigration Appeal Tribunal

dated 9 June 2003

________________

Petitioner: Govier; Drummond Miller, W.S.

Respondent: Drummond; Office of the Solicitor to the Advocate General

28 October 2005

Introduction
[1] The petitioner avers that he is a native of the African state of Burundi. He came to the United Kingdom in October or November 2001 and applied for asylum on 30 November 2001. His application was refused by letter dated 9 January 2002. He appealed against that decision, but his application was again refused by letter dated 6 January 2003, which set out supplementary reasons for refusal. His appeal against that refusal was dismissed by an adjudicator on 15 April 2003. He applied to the Immigration Appeal Tribunal ("the Tribunal") for permission to appeal against the adjudicator's determination, but on 9 June 2003 the Tribunal refused permission. In this petition the petitioner seeks to bring that determination of the Tribunal under judicial review. The petition was presented on 17 February 2004 but, for reasons that it is unnecessary to discuss, did not come before me for a first hearing until 5 October 2005.

The asylum claim
[2] The circumstances on which the petitioner relies in making his claim for asylum are summarised in statement 5 of the petition. He avers that he is a native of Burundi; that the capital of Burundi is Bujumbura; that he was born and lived in a village called Mtimbuzi in the province of Bujumbura; and that he is a Hutu. He avers that in December 1998 elements of the country's police and army attacked his village, tortured and killed his parents, raped his wife, and beat him and his children. The following day he and his family obtained refuge in a church in another part of Burundi. In December 2000 they returned to their village, as they had heard that peace had been restored in the area. In October 2001 his family was again attacked. His brother and one of his children were killed, his wife was raped and he was badly beaten. He lost consciousness, and came to in a mass grave. He did not recognise the place, but joined other Hutus who were fleeing from the violence. With the help of people he believed to be missionaries, he crossed Lake Tanganyika to Tanzania, where he stayed in a UNHCR camp. Thence he was taken to Dar-es-Salaam. From there he flew to the United Kingdom (on an unspecified date) and made his claim for asylum on 30 November 2001.

[3] In paragraph 71 of his determination the adjudicator made the following observation:

"The account given by the appellant is, as was submitted, undoubtedly harrowing and is certainly consistent with the objective evidence to which I was referred and also to many other paragraphs in the Country Report."

The adjudicator did not, however, take that matter further. That was because the basis on which the petitioner's application was refused by the Immigration and Nationality Directorate of the Home Office, and on which his appeal to the adjudicator was refused, was that he was not Burundian.

The nationality issue
[4] Paragraph 9 of the letter of 6 January 2003 setting out the supplementary reasons for refusal of the petitioner's asylum claim was in inter alia the following terms:

"The Secretary of State is not satisfied that you are Burundian and has refused your claim for asylum and your human rights claim on the basis that you are not Burundian."

[5] In the latter part of paragraph 71 of his determination, after the passage quoted in paragraph [3] above, the adjudicator said:

"However, as the Secretary of State pointed out in the Refusal Letter, the issue of nationality is crucial to the decision. On the evidence presented before me I conclude there is not a reasonable degree of likelihood that the appellant is from Burundi."

In paragraph 73 the adjudicator added:

"Since I am concluding that he is not from Burundi he does not have a well founded fear of persecution there and the appeal under the Geneva Convention and the E.C.H.R. must be dismissed."

[6] In the grounds of appeal which he submitted to the Tribunal, the petitioner concentrated on attacking the soundness of the adjudicator's approach to the evidence bearing on the issue of nationality. Leave to appeal was refused on the basis that the adjudicator had applied the correct burden and standard of proof, had concluded that there was not a reasonable degree of likelihood that the petitioner was from Burundi, and had given clear and sufficient reasons for that conclusion, which was open to him on the facts.

The issue before the court
[7] In statement 6 of the petition, the petitioner avers that the determination of the adjudicator was unlawful and unreasonable; that the Tribunal, in failing to identify these faults in the adjudicator's determination and to grant leave to appeal, itself acted unlawfully; and that the determination of the Tribunal should be reduced. It was not disputed by the respondent that the appropriate course for me to take, if persuaded that those contentions were well founded, was simply to reduce the determination of the Tribunal. Equally, it was not disputed by the petitioner that, as the adjudicator recorded in paragraph 23 of his determination, the burden of proof was and is on the petitioner, and the standard of proof was and is that of reasonable likelihood. Nor was it argued on the petitioner's behalf that he could succeed if the conclusion that he was not Burundian was a proper conclusion which the adjudicator was entitled to reach on the evidence before him. The only issue argued before me was whether the adjudicator's decision that the petitioner had not proved that he was Burundian was unlawful and/or unreasonable, and should have been perceived to be unlawful and/or unreasonable by the Tribunal, so that permission to appeal should have been granted. The Tribunal was entitled to grant permission to appeal only if satisfied (a) that the appeal would have a real prospect of success or (b) that there was some other compelling reason why the appeal should be heard (Immigration and Asylum Appeals (Procedure) Rules 2003, rule 18.4). It was not suggested that the latter ground for granting permission was a live issue in this case. The question can therefore be re-formulated as whether the petitioner has real prospects of success in showing that the adjudicator's decision was unlawful or unreasonable.

The language question
[8] In the proceedings before the adjudicator the question of the petitioner's nationality turned on evidence about the languages spoken in Burundi and the languages spoken by the petitioner. It is convenient to summarise the evidence on these matters, and to note how it was treated by the adjudicator, before turning to the submissions made on the petitioner's behalf.

(a) The objective evidence
[9] Objective evidence about the use of languages in Burundi was placed before the adjudicator in the form of two documents. One was obtained from the website of Ethnologue.com (No. 6/4 of process). It listed three spoken living languages used in Burundi, namely French, Rundi (otherwise Kirundi), and Swahili. The entry relating to Swahili states inter alia:

"Widely spoken in the capital [Bujumbura]. Spoken as first language in Buyenzi, Quartier asiatique, Muslim neighborhoods, and Congolese neighborhoods (probably Congo Swahili). Spoken by Muslims in other cities like Gitega."

The second document was the Burundi Country Assessment issued by the Country Information and Policy Unit of the Immigration and Nationality Directorate of the Home Office (No. 7/1 of process). It states in paragraph 2.1:

"The official languages of Burundi are Kirundi and French, while Swahili is also used in addition to French in commercial circles. All Burundians know Kirundi, but may speak it with regional variations. ... Swahili is widely spoken in and around the capital, Bujumbura, and is a first language in certain Muslim neighbourhoods whilst Congo Swahili is spoken in Congolese neighbourhoods."

There was also produced a map of Burundi (No. 6/6 of process) which showed the relative locations of the capital, Bujumbura, and the village where the petitioner claims to have lived, Mtimbuzi (spelled 'Mutimbuzi' on the map). While there is a scale marked on the map, the settlements are shown only conventionally. In particular, it seems improbable that the actual area occupied by the town of Bujumbura is as restricted as the area of the conventional mark denoting its position.

(b) The petitioner's evidence
[10] In the screening questionnaire which he completed on 30 November 2001 the petitioner indicated (at paragraph 1.6) that his preferred language was Swahili. In the supplementary reasons for refusal contained in the letter of 6 January 2003 (No. 7/2 of process) paragraph 8 was in the following terms:

"The Secretary of State also notes that you only speak Swahili, a language commonly spoken in Kenya and Tanzania. He notes that you have not demonstrated any knowledge of Kirundi or French which are the official languages of Burundi."

It is not clear what basis, if any, the Secretary of State had for the conclusion that the petitioner speaks only Swahili. The preference stated in the screening questionnaire is an insufficient basis for such a conclusion. Be that as it may, however, the adjudicator was entitled to observe, as he did in paragraph 62 of his determination, that:

"Given [the] very specific reason for refusing the appeal it might have been thought that those representing the appellant would endeavour to establish exactly where the appellant came from in Burundi and what language was spoken in that area."

The supplementary statement of the petitioner dated 4 March 2003 (No. 6/5 of process) does not address the language question, although it does contain passing references to communicating with various people in Swahili.

[11] The evidence on the subject of language given by the petitioner at the hearing before the adjudicator was recorded in the adjudicator's determination in the following terms:

"29. He spoke Swahili.

30 He was learning English.

31 He spoke a little bit of Kirundi.

32 Kirundi was not his first language because he lived in an area where the people did not speak Kirundi at all."

[12] The submissions made to the adjudicator on the petitioner's behalf were recorded in the adjudicator's determination as follows:

"46 I was referred to ... the ethnologue ... Report which indicated that Swahili was spoken as a first language in Buyenzi.

47 Buyenzi was an area within the capital.

48 It was perfectly plausible for the appellant to speak Swahili as his first language."

No attempt was made to link the petitioner with Buyenzi. Nor was any attempt made to demonstrate that Mtimbuzi is within the area "around" Bujumbura where, according to the Country Assessment, Swahili is "widely spoken".

(c) The adjudicator's reasoning
[13] In the part of his determination headed "The Decision" the adjudicator's reasoning is set out in the following way:

"63 Swahili is spoken as the first language in Buyenzi which the Home Office indicated was part of Bujumbura. This was not contradicted by those representing the appellant.

64 Paragraph 2.1 of the Country Report indicates that all Burundians know Kirundi and that Swahili is widely spoken in and around the capital Bujumbara.

65 It is not clear how far Mtimbuzi is from Bujumbura, although I accept that Burundi is a small country as it covers an area of 'only 27,834 square kilometres' (paragraph 2.1).

66 In his oral evidence (the issue is not covered in the appellant's written statement dated 4 March 2003) the appellant said that he spoke a little bit of Kirundi.

67 As to why he did not speak Kirundi he said that people in his area did not speak Kirundi at all.

68 That is contrary to the objective evidence at paragraph 2.1 which indicates 'all Burundians know Kirundi but may speak it with regional variations'. This appellant does not come from Buyenzi - where they speak Swahili as the first language - but from an area which, on the map, is out with (sic) the town of Bujumbura.

69 Given that the date of the supplementary refusal letter is 6 January 2003 and focuses on the fact that the appellant is not Burundian because of the language he speaks, the appellant has had ample opportunity, in presenting his written statement, to indicate why he speaks only Swahili. However, as stated, the statement of 4 March 2003 is silent on this crucial issue. ...

71 ... On the evidence presented before me I conclude there is not a reasonable degree of likelihood that the appellant is from Burundi.

72 The area from which he comes does not appear to be part of the area where Swahili is the first language. He does not speak Kirundi. He has not discharged the burden and standard of proof on him to show that he is from Burundi."

I assume that paragraph 72 ought to begin "The area from which he claims to come does not appear ...".

The petitioner's submissions
[14] Mr Govier for the petitioner advanced four submissions in support of the proposition that the determination by the Tribunal refusing permission to appeal should be reduced. They were:

(1) that the adjudicator failed to take account of relevant evidence when he concluded that the petitioner does not speak Kirundi;

(2) that the adjudicator failed to take account of relevant evidence and acted unreasonably in inferring, from his conclusion that the appellant does not speak Kirundi, that the appellant does not "know" Kirundi in the sense meant in the Country Report where it is said that "All Burundians know Kirundi";

(3) that the adjudicator failed to take account of relevant evidence and acted unreasonably in concluding that the petitioner did not live in an area "around" Bujumbara where Swahili was widely spoken;

(4) that the Tribunal, in failing to grant permission to appeal, itself acted unlawfully.

[15] In elaboration of his first submission, Mr Govier pointed to the fact that when he came to express in paragraph 71 of his determination his reasons for concluding that there was not a reasonable degree of likelihood that the petitioner was Burundian, the adjudicator stated categorically: "He does not speak Kirundi." Yet the evidence of the petitioner at the hearing before the adjudicator was that he spoke a little bit of Kirundi (paragraphs 31 and 66). The adjudicator did not appear to reject that evidence, but left it out of account when he came to give his reasons for his decision. The evidence was not that the petitioner did not speak Kirundi, but that he did speak it "a little bit". Moreover, turning to the second submission, a distinction fell to be drawn between speaking Kirundi and knowing Kirundi. When the Country Report referred to all Burundians knowing Kirundi, that did not necessarily mean speaking it as a first language. A person could know Kirundi to the extent of speaking it a little bit. The petitioner's evidence that he spoke a little bit of Kirundi was therefore not inconsistent with his being Burundian.

[16] Turning to the question of Swahili being the petitioner's first language, and developing his third submission, Mr Govier drew attention to the adjudicator's acceptance (in paragraph 62 of his determination) that Mtimbuzi is in Bujumbura province. The map enabled the adjudicator to scale off the distance from Bujumbura to Mtimbuzi (Mr Govier suggested that it was some 14 kilometres). While the precise distance might, as the adjudicator said in paragraph 65, be unclear, it could not be said that Mtimbuzi was not in the area "around" Bujumbura. Mr Govier accepted that the Ethnologue.com material did not support the conclusion that Mtimbuzi was in an area where Swahili was widely spoken. He submitted, however, that the Country Report, interpreted in the light of the map, provided evidence that Mtimbuzi was in the area "around the capital, Bujumbura" where Swahili was "widely spoken". The adjudicator had failed to take account of the objective evidence that Swahili was spoken in an area around the capital.

[17] Mr Govier did not separately develop his fourth submission, which was dependent on the other three submissions. He did, however, advance a separate argument, foreshadowed in paragraph 2 of the petitioner's grounds of appeal, that the adjudicator had fallen into error by not taking into account in relation to the nationality issue the view which he expressed in the first sentence of paragraph 71, to the effect that the petitioner's account of his treatment was consistent with the objective evidence.

The respondent's submissions
[18] Miss Drummond for the respondent began her submissions by emphasising the test to be applied by the Tribunal in deciding whether to grant permission to appeal (Immigration and Asylum Appeals (Procedure) Rules 2003, rule 18.4). It was not enough, she said, for the petitioner to identify some academic or minor point of law. What was required, if the petitioner was to succeed, was a point with real prospects of success.

[19] Turning to the language issue, Miss Drummond emphasised that the burden of proof was on the petitioner. It was for him to prove to the requisite standard that he was Burundian. The problem that he spoke Swahili and only a little Kirundi had been clearly focused in the Secretary of State's decision. The appellant was therefore on clear notice that he would require to address that issue satisfactorily before the adjudicator. He had not done so. It did not matter that the material before the Secretary of State appeared to have gone no further than an indication of a preference for Swahili as a means of communication. The Secretary of State had taken the matter further, and the petitioner was clearly on notice. The objective evidence indicated that Swahili was the first language in certain areas, including Buyenzi. The submissions on the petitioner's behalf had concentrated on that, but there was nothing in the evidence to connect the petitioner with Buyenzi. He claimed to come from Mtimbuzi, which was outside the capital, whereas Buyenzi was within the capital. It was not enough for the petitioner to show that Mtimbuzi was in the area "around" the capital, then found on the statement in the Country Report that Swahili was "widely spoken in and around the capital". What would have had to be shown was that the village from which the petitioner claimed to come was within a particular area around the capital where Swahili was the first language. The material before the adjudicator fell far short of showing that.

[20] So far as Kirundi was concerned, it was perhaps unfortunate that the adjudicator in paragraph 72 said in apparently absolute terms: "He does not speak Kirundi". Nevertheless there was no error in substance. Reading the determination as a whole, it was clear that the adjudicator was aware that the petitioner claimed to speak a "little bit" of Kirundi. The adjudicator was, however, alive to the objective evidence that all Burundians know Kirundi, and the incompatibility with that evidence of the petitioner's assertion that he knew only a little Kirundi because the people in his area did not speak it at all. On that basis the adjudicator was entitled to conclude that the degree of familiarity that the petitioner had with Kirundi was not that to be expected of a Burundian.

[21] Miss Drummond finally submitted that the consistency of the petitioner's account of the treatment he received with the objective evidence was not relevant to the nationality question. The issue was whether the petitioner was a Burundian national, not whether he was ill-treated in Burundi. That he had given credible evidence of having been ill-treated in Burundi did not help to resolve the question whether he was Burundian. The adjudicator had therefore not misdirected himself on that point.

Discussion
[22] In my opinion the adjudicator was entitled on the evidence before him to conclude that the petitioner had not discharged the burden which rested on him to prove that as a matter of reasonable likelihood he was a Burundian national. The Tribunal, in its determination of the application for permission to appeal, dealt fully with the grounds of appeal submitted to them, and were entitled to take the view that the petitioner did not have real prospects of succeeding on appeal.

[23] The language issue can be regarded as falling into two chapters, one concerning the petitioner's use of Swahili and the other concerning the extent of his familiarity with Kirundi. It is convenient for the purpose of analysis to look at the evidence on these matters in turn. It is, however, in my view, important ultimately to take an integrated view of these aspects of the question whether the petitioner has proved that he is Burundian.

[24] So far as Kirundi is concerned, the objective evidence is that all Burundians know Kirundi, although they may speak it with regional variations. That passage in the objective evidence undermines Mr Govier's submission that the adjudicator misdirected himself by failing to note the distinction between "knowing" and "speaking" Kirundi. It seems to me that no such distinction was intended in the objective evidence, because having said that all Burundians know Kirundi, it then goes on to qualify that by reference to the possibility that it may be spoken with regional variations. It is in my view clear from the terms of the adjudicator's determination as a whole that he was fully aware that the petitioner's evidence was that he spoke a little bit of Kirundi. When the adjudicator says, in paragraph 72, "He does not speak Kirundi", it is in my view reasonably clear that he has not overlooked the petitioner's evidence of speaking a little bit of Kirundi, but rather that he has concluded that the petitioner's familiarity with Kirundi is not up to the standard attributed by the objective evidence to all Burundians. The objective evidence justifies an expectation that all Burundians will speak Kirundi, although perhaps with regional variations. There is therefore ground to infer that someone who claims to speak merely a little bit of Kirundi is not Burundian. That inference is further supported by the fact that the petitioner sought to explain his limited knowledge of Kirundi by saying that in the area where he lived people did not speak Kirundi at all. That explanation was contradictory of the objective evidence, and the adjudicator was on that ground entitled to reject it. The rejection of that explanation left the petitioner's evidence about speaking only a little bit of Kirundi unexplained. In these circumstances the adjudicator was in my opinion entitled to regard the petitioner's evidence about the extent of his knowledge of Kirundi as tending to support the conclusion that he is not a native of Burundi.

[25] Turning to the fact that the petitioner's first language is Swahili, that is consistent with his being Burundian if he proved that he came from a part of Burundi where Swahili was the first, or at least a widely used, language. If, however, the village of which he claimed to be a native was not in a part of Burundi where Swahili was the first or a widely spoken language, that tended to suggest that his claim to be Burundian is untrue. Inexplicably, in the light of the focus on the language issue in the supplementary reasons for refusal in the letter of 6 January 2003, the petitioner's supplementary statement is silent on the language issue. Moreover, equally inexplicably, in the submissions made to the adjudicator (paragraphs 46-48) the point concentrated upon was that the objective evidence shows that Swahili is the first language in Buyenzi. But no attempt was made to connect the petitioner with Buyenzi. Before me the attempt was to place the village from which the petitioner claims to come in the area "around" the capital where, according to the objective evidence, Swahili is widely spoken. That approach is in my opinion flawed. Even if, by scaling off the map, despite the impossibility of telling what area the capital occupies, it can be inferred that Mtimbuzi can be described as falling within an area around the capital, there is no secure basis in the evidence for inferring that it is in that area around the capital identified in the Country Report as being an area in which Swahili is widely spoken. The result is, in my opinion, that the adjudicator was entitled to conclude that the petitioner had not given satisfactory evidence to explain why, consistent with his coming from Mtimbuzi, his first language was Swahili.

[26] Drawing the two strands of the language issue together, I am satisfied that the adjudicator was entitled to conclude that the petitioner had failed to discharge the burden of proving that he was from Burundi. The fact that his first language is Swahili, when taken with his limited knowledge of Kirundi, raised a doubt about his claim to be from Mtimbuzi, which it was incumbent on him to dispel by further evidence. The adjudicator was entitled to conclude that he had failed to do so. The petitioner has not, in my opinion, demonstrated that in reaching that conclusion the adjudicator failed to take account of relevant evidence or acted unreasonably.

[27] For the reasons given by Miss Drummond in her submissions, there is in my view no merit in the suggestion that the adjudicator should have regarded the plausibility of the petitioner's account of the ill treatment which he and his family suffered as supportive of his claim to be Burundian.

[28] In these circumstances, it has not been shown that the Tribunal erred in refusing permission to appeal. The Reasons for Decision set out in the Tribunal's determination in my view dealt fully and sufficiently with the grounds of appeal.

Result
[29] For these reasons the petition is refused.