Scottish Court of Session Decisions

OUTER HOUSE, COURT OF SESSION [2012] CSOH NUMBER34
P10/11	OPINION OF MORAG WISE, Q.C. (Sitting as a Temporary Judge) in the Petition BL (AP) Petitioner; for Judicial Review of decision of the Upper Tribunal (Immigration & Asylum Chamber) to refuse the Petitioner permission to appeal Respondent: ­­­­­­­­­­­­­­­­­________________

Petitioner: Caskie; Drummond Miller

Respondent: Lindsay, Q.C.; Office of the Advocate General

29 February 2012

Introduction
[1] The petitioner is a citizen of Burma, who arrived in the United Kingdom on 9 July 2009. He sought asylum on 17 July 2010, but his application was refused by the Secretary of State. An appeal against that decision was dismissed by an immigration judge of the First Tier Tribunal (Immigration and Asylum Chamber). The petitioner then applied for permission to appeal that decision on the basis that a point of law arose from a decision made by the First Tier Tribunal. The petitioner now seeks reduction of the decision of 6 December 2010 to refuse to grant him permission to appeal.

Submissions for the Petitioner
[2] In opening his argument in support of a motion to sustain the petitioner's plea-in-law, Mr Caskie explained that the parties were now agreed on the application of the test in Eba v Advocate General for Scotland (Public Law Project and others intervening) [2011] 3 WLR 149 to the present case. If the petitioner could establish that there were grounds to reduce the decision in question, then it was agreed that a matter of general importance such as that required by the Eba test existed.

[3] The substance of Mr Caskie's argument was that the senior immigration judge of the Upper Tribunal, who considered the application for permission to appeal, was obliged to consider whether there was "any point of law arising from a decision made by the First Tier Tribunal" (Tribunals and Enforcement Act 2007 s.11 (1)). It was submitted that if such a point of law arose, then the senior immigration judge should have granted permission to appeal. It was accepted that the question of whether a relevant point of law arose centred on the question of whether the case of TL and Others (Sur Place Activities - Risk) Burma CG [2009] UKAIT 00017 was arguably erroneous in law. If it was not, then it was accepted that permission should not have been granted. Two matters of law were raised as preliminary to this central question. First, it was important to understand what a Country Guidance case was. In R (Iran) and Others v Secretary of State for Home Department [2005] EWCA Civ 982 a series of cases were brought together by the Court of Appeal to give guidance to the Asylum and Immigration Tribunal on the application of its limited jurisdiction to consider appeals only on the basis that an error in law had occurred. It was submitted that the guidance provided by the Court of Appeal in that case remained relevant. That guidance included assistance on the nature and import of Country Guidance cases. In essence, while Country Guidance cases are not binding as such, they require to be applied where similar facts exist and a failure to apply a Country Guidance decision without good reason would constitute an error of law (R (Iran) at paragraph 27). Counsel then referred to the practice directions of the Immigration and Asylum Chambers of the Fist Tier Tribunal and the Upper Tribunal. At paragraph 12 of that guidance, it is confirmed that a reported determination of the Tribunal bearing the letters "CG" shall be treated as an authoritative finding on the Country Guidance issue identified in the determination, based upon the evidence before the members of the Tribunal that determine the appeal. Accordingly, unless it has been expressly superseded or replaced by any later CG determination, or is inconsistent with other authority that is binding on the Tribunal, such a Country Guidance case is authoritative in any subsequent appeal in so far as the appeal relates to the Country Guidance issue in question and depends upon the same or similar evidence. The direction goes on to record that because of the principle that like cases should be treated in like manner, any failure to follow a clear, apparently applicable Country Guidance case or to show why it does not apply to the case in question, is likely to be regarded as grounds for appeal on a point of law. Mr Caskie then turned to a list of Country Guidance determinations lodged as No. 6/7 of process. So far as Burma was concerned, there were two Country Guidance determinations listed. These included the case of TL and Others (Sur Place Activities - Risk) Burma CG [2009] UKAIT 00017.

[4] Attention then turned to what was termed "the Danian issue". Mr Danian was a citizen of Nigeria. It was concluded that he had placed himself at risk of persecution if he returned to Nigeria by support for opposition groups in the United Kingdom to which he had no political commitment but that upon return there was a risk that the authorities would not focus on why he had participated in opposition activities but would simply be concerned that he had done so and impute to him a political opinion that he did not have and that he would then face persecution. The Danian case reached the Court of Appeal - [2000] Imm AR 96 where it was held that a refugee with a well founded fear of persecution is entitled to protection where a political opinion would be imputed to him by his persecutors. More recent consideration to the issue was given in YB (Eritrea) v Secretary of State for the Home Department [2008] EWCA Civ 360. That case was decided following the coming into force of the Qualification Directive 2004/83/EC which provided a uniform qualification for refugees. In essence, the Court of Appeal in YB (Eritrea) concluded first, that opportunistic activity sur place is not an automatic bar to asylum and secondly, that where information was not known about the activities of a particular foreign embassy but there was information suggestive of a bleak human rights record in the country concerned, it was a small step to conclude that the authorities in question would monitor the activities of their nationals who demonstrate against the regime and take action against at least some of those who demonstrated (see paragraph 18 of YB). Mr Caskie submitted that for Burma, no assumption required to be made about what in fact the embassy was involved in because a third secretary of the embassy defected and gave evidence to the Tribunal.

[5] Turning to the Country Guidance cases, counsel referred first to the Burmese case of HM (Risk Factors for Burmese Citizens)Burma CG [2006] UKAIT 00012. HM had come to the UK to join her fiancé who was a political exile from Burma. Their relationship had broken down after a month and as a result HM returned to her home country. On arrival at the airport in Burma she was detained and to a degree mistreated as she was thought to be a spy. She then fled and came to the UK illegally where she claimed asylum. HM herself was not at all political although her family had something of a political history. The issue was whether she would face persecution if she returned to Rangoon without papers and if so, whether such mistreatment would be a result of her persecutors imputing political opinion to her. In reaching their determination, the Tribunal considered the evidence of a Mr Martin Morland, who had been the British Ambassador to Burma in the late 1980s. Since his retirement, Mr Morland had maintained an active interest in Burmese affairs. In short, his evidence, that the Burmese authorities were suspicious of associations with the West, that there was an underlying intolerance of any manifestation of political dissent and that the authorities' behaviour was unpredictable was all accepted by the Tribunal. Although it was accepted that the case of HM was relevant more to the difficulties that would be faced by individuals returning to Burma without a passport or relevant documents, it provides helpful generic conclusions (at paragraph 93). Even a Burmese citizen who has left Burma legally and with papers may face a real risk of persecution if the authorities have reason to regard him or her as a political opponent.

[6] The particular issue of political activity was more substantively dealt with in the second of the Burmese Country Guidance cases, TL and Others (Sur Place Activities - Risk) Burma CG [2009] UKAIT 00017. In that case, a woman from a highly political family had entered the UK and claimed asylum. She and her two daughters subsequently attended demonstrations in London and the issue was whether she might be at risk through that if she was identified by the authorities as demonstrating at the Burmese Embassy. Evidence was heard from a freelance photographer with an interest in the Burmese community in the UK. He had taken photographs of all demonstrations outside the Burmese Embassy. At every demonstration he had attended, he had observed persons inside the Embassy taking photographs of the demonstrators. There was some acceptable evidence from a Mr Kyi, a former Burmese diplomat who defected in 1989. Mr Kyi confirmed the practice of photographs and videos being sent to Rangoon after each demonstrator outside at the Embassy had been identified by military attaches. Again there was evidence from Mr Morland but in this case there was a full attack by the Home Office on both the expertise and views of Mr Morland. It was suggested at the Tribunal that he had left out information that did not support what was claimed to be his agenda of criticising the Burmese authorities. However, the Tribunal reached the conclusion that similar evidence from him was accepted by the Tribunal in HM and as the Secretary of State had not commissioned a report from an expert herself, any criticisms did not detract from the value of Mr Morland's evidence as an expert witness. Thus it was concluded, at paragraph 92,that the Country Guidance given by the Tribunal in HM remained valid. The view was also expressed that those Burmese nationals participating on a regular basis were likely to have been photographed by the Burmese authorities and identified. The Tribunal was satisfied that if such a person was returned to Burma and there was an additional factor which would trigger the attention of the Burmese authorities such as the lack of a valid Burmese passport or the absence of permission to exit Burma or previously having come to the adverse attention of the authorities as an opponent of those authorities or having a connection with known political opponents, there was a real risk of persecution and Article 3 ill-treatment on return to Burma.

[7] Mr Caskie focused on the conclusions of the Tribunal at paragraph 94. In particular, concentrated on sub-paragraph 4 of the conclusions which stated that if a person participating in demonstrations outside the Burmese Embassy on a regular basis were returned to Burma and there was an additional factor which would trigger the attention of the Burmese authorities (such as lack of a valid passport), there was a real risk of persecution and Article 3 ill-treatment on return. Counsel argued that there was no basis for the additional factor referred to in that sub-paragraph. The additional factor could not be the taking of photographs by the authorities and sending these to Burma because there was already a finding that such practices happened. It was submitted that there was no justification for the requirement of a sur place activity plus something else (i.e. an additional factor) before the party claiming asylum could be said to be at risk of persecution on her return. Thus it was contended that there was no evidence to support the Tribunal's conclusion in the case of TL. While it was accepted that there had been a submission based on an unsourced note that a claimant's level of involvement in the pro-democracy movement in the UK would be relevant to whether or not a grant of asylum was appropriate (see paragraph 81) the Tribunal did not conclude that they had preferred such an unsourced note over the recognised expert evidence of Mr Morland. The evidence of Mr Morland was that there was no distinction between high and low level anti-government activity so far as risk was concerned and as the Tribunal had accepted his evidence as an expert, any suggestion that there was a distinction between the level of activity of the demonstrators could be regarded as no more than that. Thus there was no basis for the conclusion of the Tribunal at paragraph 93 that they found it difficult to accept that the Burmese Government would persecute someone who they knew to be a hanger on with no real commitment to the oppositionist cause who was demonstrating merely in order to enhance a false claim for asylum. It was submitted that there was no accepted evidence on which the conclusion in paragraph 93 is based. If paragraph 93 had referred back and given weight to the unsourced note of paragraph 81 or the letter from the Deputy Head of Mission at the British Embassy in Rangoon dated 1 August 2008 referred to in paragraph 83, matters would be different. However, that had not been done.

[8] Counsel submitted further that it was not necessary for him to succeed in the petition for the court to conclude that his argument was correct, simply that it was worth pursuing. If there was an arguable error of law identifiable in TL then leave to appeal should have been granted. Under reference to Section 11(1) of the Tribunals, Courts and Enforcement Act 2007, it was clear that a right of appeal to the Upper Tribunal required to be on a point of law. The question was whether an arguable point of law arose in this case. If so, the petitioner should be allowed to appeal to the Upper Tribunal. Mr Caskie accepted that the first instance decision of the immigration judge No. 6/1 of process could not be criticised if the decision in TL was correct. At paragraph 45 of that decision, the immigration judge had concluded that although it was likely that the Burmese authorities in the UK would be able to photograph and identify the appellant, there was no additional factor which would trigger the attention of the Burmese authorities on the appellant's return. Without that additional factor, it was concluded that it was unlikely that the Burmese authorities would persecute the applicant. No. 6/4 of process which set out the reasons for the application for permission to appeal, identified the argument that the decision of the Tribunal in TL was perverse in requiring irrelevant additional factor to be in place before the appellant was entitled to protection as the basis for appeal. The refusal of permission to appeal complained of, No. 6/5 of process, stated in terms that the determination in TL was not perverse being a Country Guidance decision followed by the immigration judge. That was the correct test but if the senior immigration judge had arguably erred in the conclusion that the determination in TL was not perverse then permission to appeal should be granted.

Submissions for the Respondent
[9] Mr Lindsay, QC invited me to sustain the third plea-in-law for the respondent. He confirmed that notwithstanding the premise of the second plea-in-law in the answers, he now accepted that if Mr Caskie's argument was well founded then there would be an important principle in relation to the Country Guidance cases. He pointed out that R (Iran) v Secretary of State for the Home Department [2005] Imm AR 535 had been regularly applied in this jurisdiction. In particular, the Inner House approved that decision in the case of FH v Secretary of State for the Home Department 2010 SC 239. Senior counsel summarised the two points he had to make to rebut Mr Caskie's argument. These were first, that the limited nature of the supervisory jurisdiction did not allow interference in the way intended for by the petitioner. The court could not interfere with findings in fact from another forum in another jurisdiction. Secondly, if the case of TL was scrutinised and all of its conclusions read then no perversity could be illustrated. It should be noted that there was an explanation as to what the additional factor was. The Tribunal did not accept that every person returning would be at risk if they had been in a demonstration.

[10] On the first of these arguments, Mr Lindsay reiterated the limited nature of the supervisory jurisdiction. Before the court could interfere, there required to be either illegality, irrationality in a Wednesbury sense or procedural impropriety. It was not clear which of these three grounds Mr Caskie was relying on. It was noteworthy that there was no criticism of the immigration judge's reasoning in this case. Indeed, counsel for the petitioner had described it as a "perfect paragraph". Further, while the argument that TL may have been wrong was before the senior immigration judge, there was no suggestion that any such argument had been run before the immigration judge at first instance. In R (Iran) the court made clear that Country Guidance cases are not factual precedents. A finding in one Country Guidance case will not bind an immigration judge. It is perfectly acceptable for an immigration judge to explain why the particular circumstances of a case he may not follow a Country Guidance case. To some extent the absence of the argument having been made to the immigration judge at first instance constrained the ability of this court to judicially review the decision not to give permission to appeal it. A distinction was drawn between an error of law and a factual conclusion. The issue of an allegation that unfairness resulted from a mistake of fact was examined R (Iran) at paragraphs 28-33. The Court of Appeal had identified four requirements before a finding of unfairness could amount to an error of law. These were:

i. there must have been a mistake as to an existing fact, including a mistake as to the availability of evidence on a particular matter;

ii. it must be possible to categorise the relevant fact or evidence as "established" in the sense that it was uncontentious and objectively verifiable;

iii. the appellant (or his advisors) must not have been responsible for the mistake;

iv. the mistake must have played a material (not necessarily decisive) part in the Tribunal's reasoning.

In this case, it was clear that the finding by the immigration judge at first instance was made on the basis of there having been no submission made as that the case of TL was somehow wrong. Further, it was hard to see how any mistake could have played a material part in the Tribunal's reasoning. The decision in TL gave guidance but was not prescriptive. The facts of each case mattered. All that the case of TL did was narrate in which cases there would be an automatic risk of persecution. The fact that any alleged mistake must have played a material part in the Tribunal's reasoning had been approved by the Inner House in FH v Secretary of State for the Home Department 2010 SC 239 (see paragraph 12). In summary, if there was a mistake in the Country Guidance case, it could not be characterised as an error of law. Unless the petitioner could overcome all four hurdles set out in R (Iran) the petition must fail because without meeting all four, a mistake of fact could not be regarded as an error of law.

[11] Senior counsel's second argument was that TL was in any event correctly decided. He argued that Mr Caskie's point was akin to one that might be taken in a reclaiming motion after a proof where the conclusions of the Lord Ordinary were said not to be supported by the evidence. In order for an appellate court to take a view, it would need a transcript of the evidence, all of the productions and so on. One could not properly argue the matter by just citing passages from the Lord Ordinary's opinion. Accordingly, to properly make a case that the Tribunal's conclusions were not supported by evidence, one would have to look to the primary material that had been before them in TL. However, even in the event that the decision could be looked at for its terms, the conclusions in TL required to be read altogether. The additional factor referred to in sub-paragraph 4 of paragraph 94 of TL it could not be said to be "sur place plus" as contended for by Mr Caskie. Rather, the additional factor was simply something that triggered the attention of the authorities. All that was said in TL was that there requires to be something that would alert the authorities to the claimant in question on her return to Burma. So far as the report from the democratic voice of Burma (Norway) referred to in paragraph 82 of TL was concerned, it was clear that Mr Morland had not particularly relied on that report because it was a single source only. Thus he did not necessarily accept that the government officials in Burma checked everyone. However, what the Tribunal concluded was that there had to be something to trigger a check and that being photographed was not sufficient if there was no trigger factor to alert the authorities. There was no reason to suggest that TL was not correctly decided on this point. It is not that there is a requirement for an additional factor, it was simply that an additional factor was just a trigger that would alert the authorities and allow a Tribunal to reach a certain conclusion.

[12] Mr Lindsay submitted also that the decision in TL had been in place for over two years. The only comment he could find on it was in an English High Court decision in R (Thein) v Secretary of State for the Home Department [2011] EWHC 557 (Admin). There was nothing in that case that cast any doubt on the Country Guidance case law in relation to the issue of "hangers on" at demonstrations. The issue in Thein had been the application of the guidance in TL but not its correctness or otherwise.

[13] On the issue of what was required for an arguable point of law, Mr Lindsay referred to Hoseini v Secretary of State for Home Department 2005 SLT 550. However, that case referred to the previous test. The up to date rules were found in the Asylum and Immigration Tribunal (Procedure) Rules 2005/230. Part 3 deals with appeals to the Upper Tribunal. The guidance refers to a reasonable prospect of success. In Mr Lindsay's submission, the argument identified by counsel for the petitioner did not have a reasonable prospect of success because it was obviously wrong. In any event, the four hurdles required before there could be scrutiny of an alleged mistake of fact had not been overcome.

Reply on behalf of the Petitioner
[14] In a brief reply Mr Caskie argued that Mr Lindsay's submission in relation to R (Iran) v Secretary of State for the Home Department [2005] Imm AR 535 was irrelevant. He submitted that the error in TL was that the Tribunal had reached a conclusion not supported by any of the accepted evidence. So far as the criticism that the matter had not been raised before the immigration judge at first instance was concerned, counsel referred to paragraph 12 of the practice directions and in particular to paragraph 12.4 which provides that because of the principle that like cases should be treated in like manner, any failure to follow a clear apparently applicable Country Guidance case or to show why it does not apply to the case in question is likely to be regarded as grounds for appeal on a point of law.

[15] Counsel also submitted that sub-paragraphs (4), (5) and (6) of paragraph 94 of the decision in TL required to be read together. The "hanger on" issue had to be read in conjunction with paragraph 35 which narrated the evidence of Mr Morland on the point. He argued that there was no gap in the evidence and no leap that required to be taken. Accordingly the leap between the acceptable evidence that nothing more than attendance at demonstrations was required and the "additional factor" referred to in the Country Guidance case was an error. There were many examples where Country Guidance cases have been overturned. In one there had been a failure to take account of evidence led. The four walls of the Country Guidance case were sufficient to decide whether or not it was in error. Reverting to the decision in TL itself, Mr Caskie argued that paragraph 93 of the decision illustrated that there was no basis for the conclusion that making a claim for asylum would not itself result in persecution on a return to Burma. He submitted that it was the taking of the photograph and subsequent identification that led to the risk and that would be done regardless of the reason for presence at the demonstration.

[16] Finally in relation to the case of R (Thein) v Secretary of State for the Home Department [2011] EWHC 557 (Admin) relied upon by Mr Lindsay, counsel submitted that the argument in that case was that the Tribunal had failed to properly measure whether the claimant was a "hanger on". It could be distinguished from the present case where it was now being argued that no distinction could or should be drawn between a hanger on and an active participant at such demonstrations.

Discussion
[17] The starting point for discussion in this case is the decision of the first instance immigration judge on 23 August 2010 ( No 6/1 of process). His decision was that as the petitioner's activities in Burma were not such as to have brought him to the attention of the authorities. Having cited the passages in the Country Guidance case of TL in full, the immigration judge accepted that it was likely that the Burmese authorities in the UK would be able to photograph and identify the petitioner if they so wished. However, on the facts of this particular case he was satisfied that there was no additional factor that would trigger the attention of the Burmese authorities on the petitioner's return. There was no evidence that BL would be known to the authorities to have a real commitment to the cause such that he would, without any additional risk factor, be at risk. There was evidence of how BL came to be involved with the demonstrations and that he was nothing more than a hanger on. It was concluded that it was unlikely that the Burmese authorities would persecute him on a return. In short, the issue here is whether the senior immigration judge ought to have granted permission to appeal that decision having heard that the point that was now to be taken was that TL was arguably erroneous in law. It is well established that before a decision such as that made by the senior immigration judge could be interfered with, there would require to be some irrationality or perversity in a Wednesbury sense.

[18] In addressing that issue, it seems to me that the status of Country Guidance cases is important. It is clear that Country Guidance cases require to be applied where similar facts exist and that a failure to do so without good reason would constitute an error of law - R (Iran) and Others v Secretary of State for the Home Department [2005] EWCA Civ 982 at paragraph 27. Accordingly, Country Guidance cases are important decisions on which reliance is routinely placed. It does appear that there are a number of examples of Country Guidance cases being challenged. Mr Caskie was able to cite several examples of Country Guidance cases being overturned as erroneous in law including AA Zimbabwe v Secretary of State for the Home Department [2007] EWCA Civ 149. In this case, the petitioner will be unable to pursue his case further unless he can show that the decision in TL was arguably wrong. It was not contended that the immigration judge incorrectly applied TL. He had summarised and applied the case perfectly according to Mr Caskie. However if TL was itself arguably wrong then the parties were agreed that an important point of principle would arrive and the test in Eba v Advocate General for Scotland (Public Law Project and Others intervening) [2011] 3 WLR 149 would be met.

[19] It seems clear that a party seeking asylum in this jurisdiction may be at risk of persecution on return to their home country as a result of participation in opposition activities although much depends on whether the individual in question would have imputed to him by the authorities of his own country a certain political opinion - Danian v The Secretary of State for the Home Department [2000] Imm AR 96.

[20] The guidance particular to Burma on such an issue is set out in TL & Others (Sur Place Activities - Risk) Burma CG [2009] UKAIT 00017. The relevant parts of the general conclusion set out in that case for future guidance are in the following terms:

" (1) The country guidance given by the Tribunal in HM (Risk factors for Burmese citizens) Burma CG [2006] UKAIT 00012 remains valid. Despite the release of some long term detainees no significant or reliable change has occurred in the approach of the authorities in Burma to be able to say that the human rights situation there is any better than it was at the time the Tribunal in HM promulgated its determination.

(2) The identities and roles of activists in Burmese pro-democracy organisations based in London are likely to be known to the Burmese authorities.

(3) Participation in demonstrations outside the Burmese embassy in London by Burmese nationals is likely to be recorded by the Burmese authorities in London and made known to the Burmese authorities in Burma. Those Burmese nationals participating on a regular basis are likely to have been photographed by the Burmese authorities and identified.

(4) If such a person were returned to Burma and there is an additional factor which would trigger the attention of the Burmese authorities (e.g. lack of a valid Burmese passport; absence of permission to exit Burma; previously having come to the adverse attention of the authorities as an opponent of the regime; or having a connection with known political opponents there is a real risk of persecution and article 3 ill-treatment on return.

(5) It may be that a pro-democracy demonstrator outside the Burmese embassy known to the authorities to have a real commitment to the cause without an additional risk factor would equally be at risk but each case must be determined on its own facts.

(6) It is unlikely that the Burmese authorities would persecute someone whom they knew to be a hanger-on with no real commitment to the oppositionist cause who was demonstrating merely in order to enhance a false claim for asylum but each case must be decided on its own facts.

(7) In granting permission to leave Burma the authorities are not concerned with the places which the passport holder may visit nor the length of time during which they may be absent from Burma. The Burmese authorities are not interested per se in the places visited by a returning Burmese national who had had permission to leave Burma nor how long they stayed away."

In my view, what those conclusions set out are that there are some circumstances in which it could be said without further inquiry that there is a real risk of persecution on a return to Burma, namely where someone who had participated in demonstrations in London was being returned to that country in circumstances which would trigger the attention of the Burmese authorities. In the absence of any material to conclude that the Burmese authorities would be alerted by the return of the particular individual that return may or may not result in a risk of persecution, thus an analysis of the facts of the particular case will be required. It is incorrect to characterise the guidance as requiring an additional factor such as the lack of proper papers before a conclusion that a return will create risk can be reached. There may well be other reasons why the particular individual concerned can show that he is risk without such an additional factor being present. As Mr Lindsay put it, all that the case of TL did was narrate the cases in which there would be an automatic risk of persecution. In the present case the immigration judge followed that guidance and found in the particular circumstances in which he came to be involved with the demonstrations, BL would be treated by the authorities as nothing more than a hanger on and that it was unlikely that he would be persecuted on a return to Burma.

[21] The nub of Mr Caskie's criticism of TL was that the conclusions narrated above were not justified by the evidence. There was evidence available in that case from the democratic voice of Burma (Norway) to the effect that Government officials had categorised detainees into four groups based on their level of involvement in anti-government demonstrations. While the Tribunal accepted that the Burmese Government did not always distinguish between high and low level anti-government activity (which was the view of Mr Morland) and it was acknowledged that people who had done no more than attend protests or clap their hands in support might be detained (para 82 TL, para 82, that must be read with paragraphs 93 and 94). The distinction drawn in those paragraphs is simply between the situations where there is a near certainty that the authorities would be waiting for the relevant person's return in order to detain them and those where they may be less interested. The Tribunal had material from a variety of sources on which to base its conclusions. That material was not before me and while the case of TL is capable of scrutiny by itself the criticism made is that an incorrect conclusion was reached in TL on the available evidence. I do consider that to be a factual conclusion rather than an error of law. On the face of the decision, there was material to support the conclusions reached in TL. Although Mr Morland had been accepted as an expert, that did not prevent the Tribunal drawing certain distinctions between categories of demonstrators based on all of the available evidence. The first conclusion reached is that the Country Guidance for Burma given in HM ( Risk factors for Burmese citizens) Burma CG [2006] UKAIT 00012 remains valid. That guidance includes the statement that it has not been shown that those returned to Burma who are in possession of a valid passport or visa face a real risk of persecution unless the authorities have reason to regard him as a political opponent. The case of TL elaborates on that with reference to the specific issue of participation in demonstrations. There was conflicting evidence before the Tribunal about whether or not those who were mere hangers on at demonstrations and were not known to oppose the regime would be at risk on a return. I do not accept that the Tribunal does not make clear what evidcne was being accepted. At paragraph 93 it is stated ;-

" Nevertheless, despite Mr Morland's view that the Burmese authorities were unpredictable in their treatment of individuals and would regard demonstration outside the embassy in London as an affront to the regime, we find it difficult to accept that the Burmese government would persecute someone whom they knew to be a hanger-on with no real commitment to the oppositionist cause who was demonstrating merely in order to enhance a false claim for asylum."

Thus it is clear that on this particular point, having taken the material from all sources into account, including the report from the Democratic Voice of Burma ( Norway) mentioned at paragraph 82, the Tribunal expressly disagreed with Mr Morland. In my view it is not for this court, exercising a limited supervisory jurisdiction, to interfere with that factual conclusion.

[22] In the absence of any contention that the Country Guidance case of TL precludes those without an additional factor which would trigger the attention of the authorities from being able to put themselves in the category of being at risk of persecution on a return, it seems to me that there is no substantive basis for arguing that TL was wrongly decided. Accordingly I reject the contention that there was a reasonable prospect of the petitioner succeeding in such an argument. Counsel for the petitioner accepted that if I did not accept that TL was arguably erroneous in law then the senior immigration judge was correct to refuse permission to appeal.

Decision
[23] For the reasons stated above I consider that there is no force in the argument presented for the petitioner that TL was wrongly decided. It follows that I shall sustain the third plea-in-law for the respondent and refuse the petition, reserving meantime all questions of expenses.