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Wani & Ors, Re Application for Judicial Review [2005] ScotCS CSOH_73 (08 June 2005)

OUTER HOUSE, COURT OF SESSION

[2005] CSOH 73

P1665/04

OPINION OF LORD BRODIE

in the Petition of

JOYCE WANI, ANNA AWALA and KEFA AWALA

Petitioners;

for

Judicial Review of the determination of the Adjudicator, dated 8 July 2002, and of a the Immigration Appeals Tribunal, dated 15 August 2002

________________

Petitioners: Sutherland; Wilson Terris, SSC

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

8 June 2005

Introduction
[1] The petitioners are Joyce Wani and her two children, Anna Awala and Kefa Awala. The first petitioner's date of birth is 24 February 1970. The second petitioner's date of birth is 8 July 1998. The third petitioner's date of birth is 24 May 2000. The petitioners are nationals of Sudan. They are presently resident in Glasgow. The petitioners fled Sudan in 2001, arriving in the United Kingdom on a flight from Zaire on 21 January of that year. The first petitioner claimed asylum immediately upon arrival, the second and third petitioners being included in that claim as dependants. The claim was refused. The Reasons for Refusal letter is dated 21 March 2001. Directions for the first petitioner's removal from the United Kingdom were given on 8 May 2001. The petitioners appealed the decision that the first respondent and her dependants were not entitled to asylum. The appeal was heard before an adjudicator at Glasgow on 26 June 2002 and refused on 8 July 2002. Put shortly, the Adjudicator was not prepared to accept as credible the essentials of the first petitioner's account of what had happened to her in Sudan and how she had been able to come to the United Kingdom. The petitioners sought leave to appeal the Adjudicator's Determination to the Immigration Appeal Tribunal. Leave was refused by the Tribunal on 15 August 2002.

[2] In this petition for judicial review the petitioners seek reduction of the Determination of the Adjudicator dated 8 July 2002 and the Determination of the Immigration Appeal Tribunal, refusing leave to appeal, dated 15 August 2002. The petition came before me for a first hearing on 13 May 2005. The petitioners were represented by Mr Sutherland. The respondent to the petition, the Secretary of State for the Home Department, was represented by Miss Carmichael.

Relevant statutory provisions
[3] The salient statutory provisions relevant to this application for judicial review were very helpfully identified for me by Miss Carmichael before she moved to her substantial submissions. I did not understand Mr Sutherland to take issue with any aspect of Miss Carmichael's exposition. I gratefully adopt it and record it below.

Appeal to the adjudicator and application for leave to appeal to the Immigration Appeal Tribunal: the petitioners' appeal
[4] The present petitioners' claim for asylum, their appeal from the decision that they were not entitled to asylum and their application for leave to appeal to the Immigration Appeal Tribunal were dealt with in terms of the then current legislation: Part IV of the Immigration and Asylum Act 1999 and the Immigration and Asylum Appeals (Procedure) Rules 2000, SI 2000/2333 (the "Procedure Rules").

Section 65 of the 1999 Act provides that a person who alleges that an authority (which means the Secretary of State, an immigration officer or a person responsible for the grant or refusal of entry clearance) has acted in breach of his human rights, may appeal to an adjudicator. Acting in breach of human rights means acting or failing to act in a way which is made unlawful by section 6 (1) of the Human Rights Act 1998 (that is, in a way which is incompatible with a Convention right). Convention rights include those set out in Article 3 of the European Convention on Human Rights of 1950. Article 3 of the 1950 Convention provides that no one shall be subjected to torture or to inhuman or degrading treatment or punishment. An appeal under section 65 may therefore be referred to (as it was referred to by the Adjudicator in the present case) as a "Human Rights Appeal under Article 3 of the 1950 Convention". Section 69 of the 1999 Act provides that a person who is refused leave to enter the United Kingdom may appeal on the ground that his removal in consequence of that refusal would be contrary to the Convention Relating to the Status of Refugees of 1951 and the 1967 Protocol to that Convention. A refugee, in terms of the 1951 Convention as amended by the Protocol, is any person who, owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country. The 1951 Convention imposes certain duties on receiving states party to the Convention in relation to a person who is a refugee. Among these duties is that set out in Article 33.1 which is in these terms:

"No Contracting State shall expel or return ('refouler') a refugee in any manner whatsoever to the frontiers of territories where his life or freedom would be threatened on account of his race, religion, nationality, membership of a particular social group or political opinion."

An appeal under section 69 may therefore be referred to (as it was referred to by the Adjudicator in the present case) as an "Asylum Appeal under the 1951 Convention".

[5] Paragraph 21 (1) of schedule 4 to the 1999 Act provides that on an appeal to him under Part IV of the Act the adjudicator must allow the appeal if he considers, inter alia, the decision or action against which the appeal is brought is not in accordance with the law, but otherwise he must dismiss the appeal. Paragraph 21 (3) of schedule 4 provides that for the purposes of sub-paragraph (1), the adjudicator may review any determination of a question of fact on which the decision or action was based.

[6] In terms of paragraph 22 of schedule 4 a party to an appeal to an adjudicator, if dissatisfied with his determination, may appeal to the Immigration Appeal Tribunal. On such an appeal the Tribunal may affirm the adjudicator's determination or make any other determination which the adjudicator could have made. Given the entirely general terms of paragraph 22 (1) such an appeal might be on a matter of law or a matter of fact. Part III of the Procedure Rules applies. In terms of rule 18 of the Procedure Rules an appeal from a determination of an adjudicator requires the leave of the Tribunal. An application for leave requires to be in writing and to identify the alleged errors of fact or law in the adjudicator's determination which would have made a material difference to the outcome, together with all the grounds relied on for the appeal. The Tribunal is not required to consider any grounds other than those included in the written application and leave should only be granted where the Tribunal is satisfied that the appeal would have real prospect of success or that there is some other compelling reason why the appeal should be heard.

Subsequent amendment: consequences for remedy
[7] The 1999 Act was amended by the Nationality Immigration and Asylum Act 2002. There has been further amendment. As from 4 April 2005, provisions of the 2002 Act which related to appeals to adjudicators and to the Immigration Appeal Tribunal were, in terms of section 26 of the Asylum and Immigration (Treatment of Claimants etc.) Act 2004, replaced with substituted provisions the effect of which is to institute a new unitary body for the consideration of asylum appeals. The new unitary body is the Asylum and Immigration Tribunal: Nationality Immigration and Asylum Act 2002 section 81, as amended; Asylum and Immigration (Treatment of Claimants etc.) Act 2004 (Commencement No. 5 and Transitional Provisions) Order 2005, SI 2005/565 (the "2005 Order"). Sections 100 to 103 of and schedule 5 to the 2002 Act cease to have effect and new sections, 103A to 103E, are added. These new sections make provision for review of and appeal from the new Tribunal's decisions. The former procedure of appeal is abolished with the abolition of the position of adjudicator and the abolition of the Immigration Appeal Tribunal.

[8] The abolition of the former procedure of appeal to an adjudicator and then to the Immigration Appeal Tribunal (and, indeed, the replacement of statutory review by the court, as introduced by section 101 (2) of the 2002 Act, by a procedure under the substituted section 103A (1) for application to the court for an order requiring the Asylum and Immigration Tribunal to reconsider) without transitional provisions which clearly comprehend the case of the determination of a Scottish application for judicial review which is heard subsequent to 4 April 2005 has implications for the remedy that the court should consider in the present case.

[9] The 2005 Order does include transitional provisions. Article 9 makes reference to appeals under "the old appeals provisions", that is appeals under, inter alia, Part IV of the 1999 Act. Article 6 (1) applies where an appeal under the old appeals provisions has resulted in a pending application for statutory (as opposed to judicial) review. Such an application has to be treated after commencement as an application under section 103A (1) of the 2002 Act, as amended by the 2004 Act. However, it would appear, and this was Miss Carmichael's submission, that the case of a pending application for judicial review is not specifically addressed by any transitional provision, no doubt because of the short timetable governing applications for judicial review in England and the different Scottish procedure having been overlooked. Miss Carmichael suggested that this might give rise to difficulty in the present case were I to be persuaded that the Immigration Appeal Tribunal should have granted leave to appeal against the Adjudicator's decision and that I accordingly reduced the determination of the Tribunal but, following the decision of Lord Macfadyen in Ruslanus Irzekevikius v Secretary of State for the Home Department, 14 July 1999, unreported, did not reduce the Adjudicator's Determination. Miss Carmichael proposed (and Mr Sutherland agreed) that this difficulty might be avoided, were I to be against her on her submission that the petition should be dismissed, if I were simply to reduce both the Determination by the Immigration Appeal Tribunal and that by the Adjudicator. It would then be open to the petitioners to appeal of new.

The Adjudicator's Determination and Reasons

The first petitioner's account
[10] In paragraph 3 of his Determination and Reasons the Adjudicator explained that the first petitioner's claim as set out in her Statement of Evidence was based on her race, ethnic origin or nationality and her political opinions. Then, in paragraph 3 and following paragraphs, he narrated the evidence upon the basis of which the first petitioner claimed to have a well-founded fear of being persecuted and of having her human rights infringed, as follows.

"3. .... She maintained that she and her husband were both Christians. Her husband was a member of the Sudanese Liberation Movement (SPLM). She maintained that Christians in southern Sudan were discriminated against by the National Islamic Front who were powerful in the area and the Sudanese Government who also discriminated against Christians. She claimed that her husband was one of the leaders of the SPLM in the area in which they lived in southern Sudan. She used to help him with his work at home.

4. She claimed that on 7 December 2000 five men came to their house and said that they had been sent by the authorities to detain her husband. They said that they would come back for her later. She said that her husband was severely tortured and taken away. She has not seen him since. On 9 January 2001 soldiers of the Sudanese Government came to her village looking for her and her family and made threats that they would kill her if she did not leave the village. It was as a result of this that she decided to leave. She also maintained that her eldest son had been kidnapped by Muslims in 1999 and forced to provide labour. She could not report any of these incidents to the authorities as she said it would not get her anywhere.

9. In cross-examination she told Mr Mathias that she came from the Juba area in Sudan which was under the control of the Sudanese Government but that the area was contested by the SPLA Rebel Group. She was a housewife and her husband did not have employment, he was simply involved with the SPLA. She claimed that the Pastor of her local church arranged for her to be taken to the Congo from Sudan. She travelled along with other people fleeing Sudan and some aide workers in a UN pick-up truck. When she left Sudan the Pastor introduced her to another man with whom she travelled and once in the Congo they went to the airport and boarded the plane to London. This man had his own passport and told her to travel with him as his wife as she had no passport. The Pastor had told her that this man would help her and that she should follow him. She did not know she was coming to the United Kingdom and has no relatives here.

10. She left her eldest daughter behind with friends with whom she was staying after her husband had been detained. The reason for this was that the Pastor had told her that the person with whom she was travelling could not afford to take anyone else. The Pastor had arranged her departure and had paid for everything. When asked why the church would pay for her escape she said that the church people in Sudan are the ones who help people with problems who cannot afford to pay for a trip of this type. She had never met the man with whom she travelled before. She did not know whether or not he came from Sudan all she knew was that his name was Mike. She did not know whether or not she needed a visa to leave Sudan.

11. She went on to say that before she left Sudan she had been living in the church compound. After her husband disappeared she went to stay with her husband's friend however he had thought that it would be safer for her to go to the compound as if she was found in his house he might get into trouble. She said that the men who came to arrest her husband did not say why they were there but they did say that they would come back for her. After her husband was arrested she went to live with the friend but when she was at the friend's house she went back to her own house to see if her husband was returned. She was told at that time that the soldiers had come back to her house looking for her on 9 January 2001. She said that the fact that they had returned after her husband had been arrested implied that they wanted to arrest her as well. She said that they were ruthless people who would do harm to anybody. She did not do much for her husband but helped with things like treating wounded people. The church people knew that her husband was involved with the SPLA and would bring clothes, bandages and medicines to their home and he would then take these items away."

The Adjudicator's findings and reasons
[11] The Adjudicator's reasons for dismissing the petitioners' appeals are set out in paragraphs 16 to 21 of his Determination and Reasons as follows.

"16. In order to succeed under the Refugee Convention the appellant must show that owing to a well funded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, he is outside the country of his nationality and unable or, owing to such fear, is unwilling to avail himself of the protection of that country. The standard of proof for establishing such a fear is that of a reasonable degree of likelihood as discussed in Karanakaran (2000) IMM AR 271. Since the tribunal decision on Kacaj (01/TH0634) it is clear that the standard in relation to ECHR is the same.

17. The situation in Sudan is set out in the CIPU Report. At paragraph 5.6 it is stated that Christians form approximately 4%-10% of the population. At paragraph 5.8 it is suggested that there is discrimination against the Christians and other minorities. Section 5 of the report suggests that the human rights record in Sudan is poor. There is reference to cases of torture, harassment, arbitrary arrest, detention and killing by the security forces with the result that vast numbers of people have been killed or displaced. At paragraph 5.4 there is reference to the continuing conflict between the Government and the SPLA.

18. At paragraph 5.41 there is a reference to the constitution allowing freedom of religion but at paragraph 5.46 there is reference to security forces harassing and using threats and violence against persons on the basis of their religious beliefs. Paragraphs 5.50 and 5.51 deal with freedom of travel. It would appear that citizens wishing to leave Sudan must have an exit visa stamped in their passports. The following paragraph suggests that Sudanese Nationals who have been abroad can return to Sudan without encountering any problems. There is however specific reference to the fact that members of the SPLA who have been abroad and would like to return to Sudan would be at risk of persecution as would people returning to Sudan from countries having strained or hostile relations with Sudan. The subsequent paragraphs in section 5 of the report suggest that there are still many examples of arbitrary arrests and detention and torture.

19. It is against this background that I have considered carefully the evidence of the appellant. I have come to the conclusion that the appellant is not credible. There are two aspects of her account which I simply cannot accept and which lead me to the conclusion that her core account is not credible. The first aspect which caused me difficulty was the question of her leaving Sudan. Her account that the church Pastor arranged for her to go initially to the Congo and that the church arranged for someone else who provided air tickets for her onward journey is simply incredible. I would have been prepared to accept that the church might have assisted her in escaping so far as the Congo but to suggest that the church would pay air fares for herself and her two children to leave is quite simply implausible. She was questioned at some length by Mr Mathias about this but could not provide any reason as to why the church would have behaved in this way. She did say that she left her own area and went to the Congo in a UN pick-up truck and it may well be that she was simply one of a party of refugees who were being taken out of Sudan but in my view she must have made other arrangements for her onward journey and the fact that she was not prepared to disclose these affects her credibility.

20. The other aspect of her account which I could not accept was her suggestion that her husband was arrested and detained and that threats were made against her to the effect that the soldiers would return for her. If she was of any interest to the soldiers who arrested her husband then she would have been detained at the same time. Her evidence was that five men arrived at the house on 7 December 2000 who beat her husband and then took him away. If the appellant was of any interest to them I think that she would have been arrested at the same time. If the soldiers had any interest in the appellant but felt unable to arrest her at the same time as her husband it is unlikely that they would have told her that they would come back for her as this would obviously encourage her to leave her home village and go and stay with someone else which is what she claims to have done. In view of the doubts which these two areas of her account have raised I am not prepared to accept her core account of what she says happened to her as credible. On this basis the asylum appeal will be dismissed.

21. The appellant's representative has submitted that the appellant's rights under Article 3 of the 1950 Convention are engaged. I have examined the arguments put forward in support of this submission but in the light of the facts as established have found no substance in them. In considering Article 3 I have to decide whether there is a breach of the prohibition on torture or inhuman or degrading treatment or punishment. In this case I have to consider whether or not there are substantial grounds of believing that the appellant would be subjected to treatment which contravened Article 3 if she were to be returned to Sudan. Although the CIPU Report at paragraph 5.50 states that Sudanese citizens wanting to leave must have an exit visa the following paragraph goes on to state that Sudanese Nationals who have been abroad for some time can enter Sudan without any problems. On the findings in fact which I have made I am not accepting that the appellant is a member of the SPLA or falls into any of the other categories specified in paragraph 5.51 who might be at risk. On the findings in fact which I have made there is nothing to establish that the appellant is at any greater risk on return than anyone else and for that reason the human rights appeal will also be dismissed."

The submissions of parties

Submissions for the petitioners
[12] Mr Sutherland stated that he proposed to argue the application somewhat differently from the way it was presented in the petition. The Adjudicator had not found the first petitioner's account to be credible and accordingly did not accept that the petitioners had a well-founded fear of being persecuted or that they were at risk of infringement of their human rights. The Adjudicator's reasons for finding the first petitioner to be incredible are set out in paragraphs 19 and 20 of his Determination and Reasons. It was Mr Sutherland's submission that the Adjudicator had not been entitled to deal with the issue of credibility in the way that he had and, in particular, he had not been entitled to find incredible the two features of her account referred to in paragraphs 19 and 20. Mr Sutherland accepted that this attack on the Adjudicator's Determination was not well focused in the Grounds of Appeal, number 6/5 of process, which had been submitted to the Immigration Appeal Tribunal. Nevertheless, the Grounds specifically mentioned both paragraphs 19 and 20. It should have been obvious to the Tribunal that the Adjudicator had made an error. It was of relevance to consider the terms of the Determination by the Tribunal on the petitioners' application for leave, number 6/6 of process. It could be seen from that that the Tribunal had appreciated that the petitioners wished to challenge the basis for the Adjudicator's finding on credibility.

[13] Mr Sutherland did not dispute that the Adjudicator was entitled, indeed obliged, to come to a view on the credibility or otherwise of the evidence of an appellant against an immigration decision. For example, an appellant might be found to be incredible if there was clear evidence or an accepted state of knowledge contradictory of the appellant's account (Mr Sutherland gave the example of an appellant describing travel documents as having been printed on a particular colour of paper when it was well known that the relevant documents were always printed on a quite different colour of paper). Equally, an appellant might be found to be incredible if there was something self-contradictory in his account. An appellant might also be found to be incredible if what he spoke to was simply inconsistent with human experience. What was not legitimate was for an adjudicator to come to a subjective view as to what was unlikely in the appellant's account and then to find the appellant incredible on the basis of this entirely subjective assessment, as had happened here.

[14] In support of his submissions, Mr Sutherland drew my attention to what is said by the authors of Macdonald and Webber Immigration Law and Practice in the United Kingdom (5^th edit) at paragraph 12.28: decisions based on adverse credibility are increasingly being subjected to careful scrutiny at appeal and at review to ensure that they are properly reasoned to take account of relevant evidence. While questions of credibility were matters for the tribunal of fact, an adjudicator should be cautious in rejecting as incredible an account by an anxious and inexperienced asylum seeker. Mr Sutherland referred to paragraph 12.29 of Macdonald and Webber where there is this:

"Since it is not in the nature of repressive societies to behave reasonably, the strange or unusual cannot be dismissed as incredible or improbable, particularly if there is supporting material of similar accounts in the relevant human rights literature, and decision-makers should be constantly on their guard to avoid implicitly recharacterising the nature of the risk based on their own perceptions of reasonability."

Mr Sutherland also referred to what appeared in Supperstone and O'Dempsey on Immigration and Asylum (4^th edit) at pages 480 to 482; to the decision of the English Court of Appeal, in Karanakaran v Secretary of State for the Home Department [2000] 3 All ER 449 [2000] Imm AR 271; and to Assessment of Credibility in Claims for Refugee Protection, a memorandum, dated 31 January 2004, issued by the General Counsel and Director of the Refugee Protection Division of the Canadian Immigration and Refugee Board, at paragraphs 2.3.5 and 2.5.5.

[15] Having indicated what he said was the correct approach for an adjudicator to follow when considering whether an appellant's evidence should be held to be credible, Mr Sutherland turned first to paragraph 19 and then to paragraph 20 of the Adjudicator's Determination in the present case.

[16] In paragraph 19 of his Determination and Reasons, the Adjudicator explains that he has concluded that the core of the first petitioner's account is not credible by reason of his being unable to accept as true two aspects of that account. The first aspect was how the first petitioner came to leave Sudan and, in particular, the circumstance that her church had paid the air fares of the three petitioners from Zaire to the United Kingdom. This, the Adjudicator said, was "quite simply implausible". He concluded that the first petitioner must have made other arrangements. That she was not prepared to disclose what they were adversely affected her credibility. Mr Sutherland was critical of the Adjudicator's approach. How, he asked rhetorically, does the Adjudicator know that a Sudanese church would not take pity on the first petitioner and provide her with assistance. The Adjudicator might be entitled to find such action to be unlikely, but he was not entitled to go the distance of finding it quite simply implausible. It was only because he had taken the view that he had about how the first petitioner said she had come to leave Sudan that the Adjudicator had been able to conclude that she must have made other arrangements that she was not prepared to disclose.

[17] Mr Sutherland made a similar criticism of what appeared in paragraph 20 of the Adjudicator's Determination and Reasons. There the Adjudicator expresses the view that, had the first petitioner been of any interest to the soldiers who took away her husband on 7 December 2000 then she too would have been arrested at that time, whereas she was not. The Adjudicator further states that it is unlikely that the soldiers would have told her that they would come back for her (as she had claimed in her account) as this would obviously encourage her to leave her home village and go and stay with someone else, and so evade arrest. Again, it was Mr Sutherland's submission that the Adjudicator was simply not entitled to proceed on an entirely subjective assessment about what the supposedly rational soldier in the Sudanese army would or would not do. There was therefore no basis for finding the core of the first petitioner's account to be incredible. If, contrary to his submission, the court was to find that the Adjudicator was entitled to approach the matter of credibility as he had, then Mr Sutherland had nothing further to add in support of his application. However, if the court was with him either in relation to paragraph 19 or in relation to paragraph 20 the petitioners were entitled to succeed in that it was only by reference to his doubts on both aspects that the Adjudicator had found the first petitioner to be incredible.

[19] Miss Carmichael concluded her submissions by questioning whether the issue as it had been developed by Mr Sutherland had been adequately identified in the Grounds of Appeal which had been before the Immigration Appeal Tribunal. Credibility had been canvassed in a broad sense at paragraphs 10, 11 and 12 of the Grounds of Appeal but the "grounds" did not engage the question as to whether the Adjudicator was entitled to come to the view that he had in relation to credibility. It could not be said that the point which Mr Sutherland had now advanced was an obvious one, having regard to the terms of the Determination. Reference was made to the decision of the Court of Appeal in R v Secretary of State for the Home Department ex parte Robinson [1998] QB 929 that of Lord Reed in Mutas Alabas v Secretary of State for the Home Department, 2 July 2004, unreported on this point, at paragraphs 17 and 23. Miss Carmichael did, however, concede that when one looked at the Determination by the Immigration Appeal Tribunal, number 6/6 of process, it would appear that the Tribunal had understood the Grounds as putting in issue the Adjudicator's assessment of credibility, albeit not precisely in the way that had been elaborated by Mr Sutherland.

Discussion
[20] In order to succeed in this application for judicial review the petitioners require to demonstrate that the Immigration Appeal Tribunal acted unlawfully in refusing leave to appeal against the Adjudicator's refusal of the their appeal, albeit that it is agreed between counsel, for the reasons given by Miss Carmichael, that if the Tribunal is held to have acted unlawfully then both its Determination and the Determination by the Adjudicator should be reduced. In order to determine whether the Tribunal acted unlawfully it is necessary to have regard to what matters were before it. In terms of rule 18 (6) of the Procedure Rules, the Tribunal shall not be required to consider any grounds other than those included in the application for leave. Thus, on the face of the rule, the Tribunal is limited in its determination as to whether leave should be granted by the arguments that have been advanced on behalf of the petitioner. However, as Lord Reed points out in Mutas Elabas supra at paragraphs 21 and 22, the result of the decision in R v Secretary of State for the Home Department ex parte Robinson (and that in R v Secretary of State for the Home Department, ex parte Kolcak [2001] Imm A R 666) is somewhat to qualify the terms of rule 18: the Tribunal should grant leave to appeal if it discerns a point of Convention law, or, indeed, a point on an issue of fact, which has a strong prospect of success, whether or not it is raised in the grounds included in the application for leave. This is not to say that the Tribunal is required to search for any arguable point but it must grant leave if consideration of the material and, in particular, the adjudicator's determination, discloses an obvious point which has strong prospects of success. Thus, a failure to discern an obvious point which has strong prospects of success amounts to an error of law on the part of the Tribunal which makes its determination susceptible to review by this court.

[21] Miss Carmichael has questioned whether the issue as it had been developed by Mr Sutherland had been adequately identified in the Grounds of Appeal which had been before the Immigration Appeal Tribunal. She has submitted that the Grounds did not engage the question as to whether the Adjudicator was entitled to come to the view that he had in relation to credibility. I agree with that submission. Accordingly, I do not consider that rule 18 (6) of the Procedure Rules required the Tribunal to consider as a ground of appeal the point that was developed before me by Mr Sutherland. The question then becomes whether the point was nevertheless an obvious one with strong prospects of success. Miss Carmichael submitted that it was not. I do not consider that that is so. The Adjudicator's Determination is relatively short. The Adjudicator's decision turns on his conclusion that the first petitioner's account cannot be accepted as credible. I consider that the Tribunal required to scrutinise the basis upon which the Adjudicator felt able to come to that decision. As Miss Carmichael conceded, it would appear from its Determination that the Tribunal did just that, before coming to the conclusion that neither reason given by the Adjudicator was arguably flawed. I therefore take the Tribunal to have seen the argument that the Adjudicator's reasoning in support of his decision on credibility to be an obvious one, albeit not one with strong prospects of success. I would respectfully agree that the point was obvious. I would respectfully disagree with the view that it should not be regarded as having strong prospects of success.

[22] It is for the applicant for asylum to establish his claim. To do so he will have to satisfy the relevant decision maker as to the occurrence of events in the past and the risk of the occurrence of events in the future. How the decision maker is to deal with the material relevant to the decision is discussed in Karanakaran supra. An important part of that material is likely to be the account given by the applicant himself, in whatever form it comes before the decision maker. The credibility of that account will have to be evaluated. This evaluation must be carried out with great care and sensitivity but it must be done, and that by reference to the tests of consistency and inconsistency ordinarily applied in court. That may involve looking at what the applicant has to say about peripheral as well as central issues: Asif v Secretary of State for the Home Department supra at 189C. What, however, is not proper is to reject an applicant's account merely on the basis of an assertion that it is not credible or not plausible. To say that an applicant's account is not credible is to state a conclusion. An adjudicator is a tribunal of fact. A finding as to credibility is his particular province. Where evidence is given orally, the adjudicator will have the benefit of hearing that evidence. That advantage is to be borne in mind by any court that is requested to review an adjudicator's determination. Nevertheless, it is incumbent upon an adjudicator to give reasons for an adverse conclusion on credibility which are both comprehensible and cogent. In the absence of such reasons a determination falls to be regarded as irrational.

[23] As I am reminded by the opinion of the Court in Asif v Secretary of State for the Home Department supra at 189E, it is not for a court judicially reviewing an immigration decision or decisions to decide whether an adjudicator's judgement as to an appellant's credibility was right or wrong. The question is whether the view that he arrived at was one which a reasonable adjudicator could have reached on the material before him, bearing in mind his obligation to give reasons which explain why he came to the view that he did. I have narrated Mr Sutherland's criticisms of what appears in paragraph 19 and then what appears in paragraph 20 of the Determination and Reasons. As far as paragraph 19 is concerned I have not been persuaded that the Adjudicator arrived at a view as to the credibility of the account given by the first petitioner as to the circumstances in which she was enabled to fly to the United Kingdom which no reasonable adjudicator could have reached on the material before him or that the Adjudicator has adopted an illegitimate technique in assessing credibility or that he has failed to give adequate reasons for his finding, which may all be no more than saying the same thing in slightly different ways. It was Mr Sutherland's contention that the Adjudicator's decision depended upon an assertion about how a church in Sudan might act which, without evidence, he was not entitled to make. He drew attention to the Adjudicator's use of the expression "quite simply implausible" which, in his first speech, Mr Sutherland equated with "being so obviously untrue that I am entitled to discard it", although as he further developed his argument in a second speech I understood him represent the Adjudicator as having effectively said that what the first petitioner had described was impossible. That, submitted Mr Sutherland, was not a conclusion that was available to the Adjudicator in the absence of evidence from another source that directly contradicted the first petitioner's account or, alternatively, something self-contradictory in that account. As an illustration of a church doing something very similar to what the first petitioner had described, Mr Sutherland drew my attention to an article which had appeared in the Melbourne newspaper, The Age, on 14 March 2005 and which he had discovered by means of an internet search. A printout was lodged as number 6/7 of process.

[24] Contrary to Mr Sutherland's contention, it is my opinion that the Adjudicator was entitled to approach the element within the first petitioner's account which is discussed in paragraph 19 of the Determination in the way that he did. I acknowledge that the Adjudicator employed strong and stark expressions to describe his immediate impression of the first petitioner's account of the church paying the necessary air fares: "simply incredible" and then "quite simply implausible". However, that is not to say anything more than that he did not find this account of unexplained generosity on the part of an institution which can reasonably be taken to have limited resources, to have the quality of being worthy of belief. I do not find that materially different from saying that the account appeared to the Adjudicator to be inherently unlikely. Accepting Mr Sutherland's point that churches may be taken to be benevolent institutions, it appears to me that the Adjudicator was entitled to look for some explanation as to why (and how) such a significant act of benevolence should have been directed at this particular family. The first petitioner's account did not include such an explanation. Importantly, paragraph 19 of the Determination includes the information that the first petitioner had been questioned at length by the Home Office Presenting Officer about this aspect of her account but that she had been unable to provide any reason as to why the church should have behaved in this way. In my opinion the Adjudicator's approach did not involve him in making any particular assumption about the way in which a church in the Sudan would act. Rather, he was sceptical in the face of an account which, having regard to human nature and the ways of the world, called for fuller explanation or, to use the language of the Court in Asif v Secretary of State for the Home Department supra at 189E, raised a real question as to whether it was true. In his second speech Mr Sutherland said that the furthest the Adjudicator was entitled to go was to find this element the first petitioner's account unlikely. As I have tried to explain, I do not consider that the Adjudicator did anything more than that. Mr Sutherland referred me to paragraph 2.3.5 in the memorandum issued by the Canadian Immigration and Refugee Board, Assessment of Credibility in Claims for Refugee Protection. Agreeing with Miss Carmichael, I have reservations about the utility of citing material which is no more than illustrative of judicial technique in other Commonwealth jurisdictions, but I have no difficulty with any of the propositions which appear in paragraph 2.3.5. They appear to me to be entirely consistent with authority laid down rather closer to home, including Asif supra. As I have already indicated, I accept that a tribunal of fact making an adverse finding on credibility must only do so on reasonably drawn inferences and not simply on conjecture or speculation. Inferences concerning the plausibility of evidence must have a basis in that evidence. An applicant's testimony should not be lightly or readily dismissed and when it is reasons must be given. It is not sufficient simply to indicate that a particular account is implausible. It is not sufficient for the finder of fact to do no more than indicate a preference for what he considers to be a more reasonable explanation of events nor is it appropriate for the finder of fact to construct his own hypothesis as to how events unfolded. No doubt there will be cases where actions which appear implausible if judged by Canadian (or Scottish) standards, might be plausible when considered within the context of the of the applicant's social and cultural background. However, the Canadian memorandum acknowledges, and this is also the case with fact finding in the context of an asylum appeal in the United Kingdom, that the tribunal of fact need not necessarily accept an applicant's account simply because it is not contradicted at the relevant hearing. The tribunal of fact is entitled to make reasonable findings based on implausibilities, common sense and rationality, and may reject evidence if it is not consistent with the probabilities affecting the case as a whole. In addition to the propositions summarised above, paragraph 2.3.5 of the memorandum contains a passage from a decision of the British Columbia Court of Appeal in Faryna v Chorny 1952 2 DLR 354 at 357 which includes the following:

"In short, the real test of the truth of the story of a witness [where there is conflict of evidence] must be its harmony with the preponderance of the probabilities which the practical and informed person would readily recognize as reasonable in that place and in those conditions."

Insofar as what appears in paragraph 2.3.5 advances the argument, it appears to me it lies in its recognition that while a decision on credibility must be reached rationally, in doing so the decision maker is entitled to draw on his common sense and his ability, as a practical and informed person, to identify what is or is not plausible. On that basis an account may be found to be inherently implausible. In relation to element of the first petitioner's account that is discussed in paragraph 19 of the Adjudicator's Determination and Reasons, I consider that the Adjudicator did no more than that. For the reasons that he gives, his conclusion is one which a reasonable adjudicator was entitled to come to. That Mr Sutherland has found a story (which I take to be true) in The Age that has some features in common with the first petitioner's account (and some which are not in common) is, in my opinion, neither here nor there.

[25] I take a different view as to the way in which the Adjudicator dealt with the element in the first petitioner's account which is discussed in paragraph 20 of the Determination and Reasons. This element was obviously of central importance to the questions as to whether the first petitioner had a well-founded fear of persecution and as to whether there was a risk that her human rights would be breached. The Adjudicator does not expressly say whether he accepted the first petitioner's account of what had happened to her husband (who she had said was a local leader of the Sudanese Liberation Movement) but he clearly did not accept her account of the soldiers who had detained her husband threatening that they would return for her. The Adjudicator gives his reasons as follows:

"If the appellant was of any interest to them I think that she would have been arrested at the same time. If the soldiers had any interest in the appellant but felt unable to arrest her at the same time as her husband it is unlikely that they would have told her that they would come back for her as this would obviously encourage her to leave her home village and go and stay with someone else which is what she claims to have done."

I do not see this reasoning to be based on any evidence. I have concluded that the Adjudicator was entitled to find the paragraph 19 element in the first petitioner's account to be incredible because of its inherent implausibility taken with the first petitioner's inability to give any explanation that might make it less implausible when questioned. In so doing I have seen there to have been an important role for the Adjudicator's common sense as a rational, practical and informed person when it comes to assessing an account such as that discussed in paragraph 19. I see the account discussed in paragraph 20 to be rather different. It relates to the conduct of the Sudanese security forces. The Adjudicator accepted the description of the situation in Sudan which is contained in the Country Assessment by the United Kingdom Country Information and Policy Unit (referred to in the Determination and Reasons as the "CIPU Report"). That includes the information that there are cases of torture, harassment, arbitrary arrest, detention and killing by the security forces, associated with discrimination against Christians and other minorities. I accept that the Adjudicator is a specialist decision maker with the expertise that goes with that status. Nevertheless, I consider that the common sense, rationality, practical experience and general information to be imputed to a reasonable adjudicator are of only very limited use when it comes to making judgements about the likely behaviour of the Sudanese security forces, given the terms of CIPU report. What is said by the authors in paragraph 12.29 of Macdonald and Webber, which was cited by Mr Sutherland, appears to me to be apposite. Miss Carmichael submitted that it is open to an adjudicator to come to a view as to the internal coherence of an account of events, even events occurring in "a state or situation in which persecution is an established fact of life", to use the language of the Court in Asif supra at 189A, and to conclude that the account just does not make sense. That, she said, is what the Adjudicator had done here. In the context of the evidence that had been given by the first petitioner that was an entirely proper approach. I do not dispute the generality of Miss Carmichael's submission but I cannot avoid the conclusion that, for all that appears in his reasoning, what the Adjudicator did was to indulge in speculation as to what Sudanese soldiers would or would not do in the circumstances revealed by the first petitioner's account. Without more information I do not consider that it can be said that there is anything inherently implausible or unlikely about the first petitioner's account. Miss Carmichael identified the issue, correctly in my opinion, as being whether the Adjudicator's reasoning could be supported. As far as paragraph 20 is concerned my judgement is that it cannot.

Decision
[26] The Adjudicator's rejection of the first petitioner's account depended on the view he took both on the paragraph 19 element and the paragraph 20 element. Counsel were agreed that if either pillar of his reasoning was removed because it could not be supported then, by reason of the consequences of the coming into force of the 2004 Act, his Determination, as well as the Determination of the Immigration Appeal Tribunal, would fall to be reduced. Accordingly, as I have found that the part of the Adjudicator's reasoning directed at his rejection of the paragraph 20 element of the first petitioner's account cannot be supported, I shall reduce both the Determination by the Immigration Appeal Tribunal and the Determination by the Adjudicator. I shall reserve all questions of expenses.