(Immigration and Asylum Chamber) Appeal Number: AA/07097/2013
THE IMMIGRATION ACTS
Heard at Field House
On 11th November 2013
On 27th November 2013
UPPER TRIBUNAL JUDGE REEDS
hatim Ahmed el fakiali
For the Appellant: Ms F Kaedic, Solicitor on behalf of Trott & Gentry LLP Solicitors
For the Respondent: Mr I Jarvis, Senior Presenting Officer
DETERMINATION AND REASONS
1. The Appellant, a citizen of Sudan born on 1st January 1968, appeals with permission against the decision of the First-tier Tribunal (Judge Beg) who dismissed the appeal against the decision of the Respondent dated 12th July 2013 to remove the Appellant from the United Kingdom by way of directions under paragraph 8-10 of Schedule 2 to the Immigration Act 1971 and to refuse his claim for asylum.
2. The history of the appeal is as follows. The Appellant claims to have travelled to the United Kingdom clandestinely by lorry arriving on 15th June 2003. He claimed asylum on the same day.
3. The basis of the Appellant’s claim for asylum was that he was a member of the Tunjur tribe in Sudan and approximately five years ago became involved with a Quranic Group which he claimed was forbidden in Sudan. The group are neither Sunni nor Shia Muslims and do not believe in the Hadeeth and practise their religion with some differences from the mainstream Islamic faith. In his interview the Appellant stated that the group were an “awareness group” to show the real value of the Quran and to expose the false Islamic government and the Islamic parties.
4. It is the Appellant’s claim that he was arrested on 2nd September 2011 whilst attending a Quranic Group and that for five days of his detention was ill-treated and interrogated about relationships the group had with political parties and the movement in Darfur. After ten days he was released and signed an agreement to stop following his ideas and activities.
5. On 20th April 2013 the Appellant claimed that he was arrested again by the authorities whilst attending a Quranic Group meeting at his home. The circumstances of this were that his father-in-law came to the house unexpectedly and called the police. The police raided his home and found three forbidden books in the house. He and other members of the group were detained for four days and accused of apostasy under Article 126 of the Sudanese Criminal Code. It is said that his brother paid a guarantee for his release and he was released on bail to report daily at the police station. He then stayed with a cousin for about one month before leaving Sudan with the assistance of an agent.
6. The basis of his claim was that he feared return to Sudan as he would be wanted by the authorities having escaped whilst on bail and because the authorities in Sudan including the police and security forces would consider him to be an “unbeliever” and that he would face further arrest, detention and ill-treatment.
7. The Appellant left Sudan on a lorry on 24th May 2013, travelled via Libya where he stayed for two weeks and arrived in the United Kingdom on 15th June 2013.
8. In a letter dated 12th July 2013 the Respondent rejected the Appellant’s claims for asylum. There were a number of reasons given in that letter, noting that the Appellant was born in Shandi and had never lived in Darfur. The Respondent considered his claim to be a member of the Tunjur tribe but whilst the Appellant had some knowledge of the culture and history of the tribe, his knowledge was insufficient to outweigh positive evidence of knowledge of the Tunjur tribe. As to the Quranic Group, the Respondent stated that no evidence could be found to confirm the group existed or that individuals in the group as named by the Appellant or its leaders of the group had any profile whatsoever. The Respondent also did not accept that the Appellant carried out activities to recruit people to the group or that he personally approached people at his workplace, in the local area and students. The Respondent considered that that was inconsistent with the country information and that such activities were rarely practised in Sudan. There were other inconsistencies noted in respect of the Appellant’s claim to have been arrested on 20th April 2013 and detained for four days.
9. The Appellant exercised his right to appeal that decision and gave notice on 29th July 2013.
10. The appeal came before the First-tier Tribunal (Judge Beg) on 27th August 2013. The Tribunal heard oral evidence from the Appellant as set out in the determination and also from a witness, Mr Al Tayaeb Hassan Ahmed. In a determination promulgated on 3rd September 2013 the First-tier Tribunal Judge dismissed the Appellant’s appeal on asylum, humanitarian protection and human rights grounds (Articles 2, 3 and 8). In summary the judge did not accept that the Appellant had demonstrated to the lower standard of proof that he was from the Tunjur tribe but in the alternative even if it was accepted, the Appellant had not suffered any discrimination that members of that tribe had suffered because they were located in communities within the Darfur Province and this Appellant had never lived in Darfur. As to the basis of his claim based on his membership of the Quranic Group, the judge made a number of adverse findings of credibility relating to the membership of that group, the activities which he claimed to have been involved in and did not find his account credible that he had been arrested on 2nd September 2011 or 20th April 2013. The judge found at paragraph 35 that having considered the evidence in the round and on the lower standard of proof she had not found the Appellant a credible witness. In the alternative, the judge noted that even if she had found him a member of the Quranic Group she did not find that he would come to the adverse attention of the Sudanese authorities. Furthermore even if the judge accepted that the Appellant was arrested on 2nd September 2011 he was released without charge but she did not accept in any event that the Appellant was re-arrested on 20th April 2013 (see paragraph 35). She found that the Appellant had
“fabricated his claim that he was released on bail and did not answer to that bail and is therefore wanted by the authorities. I do not find the Appellant has been charged with apostasy under the criminal law. He is able to practise his faith in his own home”.
11. Consequently the judge dismissed the appeal having not found that the Appellant was a refugee nor that he would be at risk of suffering serious harm on return.
12. The Appellant sought permission to appeal that decision, the Grounds of Appeal having been settled by Mr Bonavero, Counsel who did not appear before the First-tier Tribunal.
13. Permission was granted by First-tier Tribunal (Judge Fisher) on 20th September 2013. The reasons were given as follows:-
“The grounds seeking permission have been drafted by Counsel who did not represent the Appellant at the hearing. They assert that the judge erred in her approach to the facts and law. At paragraph 2, it is observed that the judge appears to accept that the Appellant was a member of the Quranic Group but, in paragraph 36, the judge goes on to conclude that he is able to practice his faith in his own home. The grounds assert that this finding is not a complete answer to the Appellant’s claim for humanitarian protection, because she was required to consider whether his desire to proselytise as part of his religious identity. Furthermore, the grounds claim that the judge’s findings on the Appellant’s credibility are flawed to the extent that they are unsustainable. It is said that she has misunderstood the Appellant’s explanation for downloading articles from the internet. The grounds also assert that the judge has engaged in speculation, and that she appears to have required the Appellant to corroborate certain aspects of his claim.
The determination is detailed. However, it is difficult to ascertain the judge’s factual conclusions with any precision. At paragraph 35, she states that she did not find the Appellant to be a credible witness. Despite that, in the next sentence, she states that if the Appellant is a member of the Quranic Group, she is not satisfied that he has come to the attention of the authorities. In the following sentence, she states that if she accepts that he was arrested on the first occasion claimed, he was released without charge. Furthermore, although he has discounted his claim to have spoken to educated and open-minded people in workplaces and universities about the group’s belief, I find that there is a certain tension between these ‘conclusions’, the comment in paragraph 36, where she states that the Appellant is able to practise his faith in his own home and the principle expounded in HJ Iran v SSHD  UKSC 31, especially as she goes on to conclude that he does not have a well-founded fear of persecution as a consequence.
Although somewhat finely balanced, I find it arguable that the judge erred in law on the above basis. The remaining grounds appear less meritorious, but I stress all grounds are arguable. Permission to appeal is granted.”
14. Ms Kaedic, appeared on behalf of the Appellant before the Upper Tribunal. She relied upon the grounds as drafted by Counsel. She supplemented those grounds with the following oral submissions. She submitted that the judge had made an error of law in her approach as to credibility (set out in grounds 9-15). There was an issue as to when the Appellant had gathered evidence that he had downloaded and the judge had mistaken this by finding the Appellant had downloaded the information before the second arrest in order to make an asylum claim. The relevant paragraphs of the determination are 11 and 13 where she summarised the evidence. At paragraph 13 he gave his evidence as to why he had downloaded the article but that was different from the judge’s conclusion at paragraph 29. There appears to be a confusion in the findings as to why he downloaded the evidence. The summary of the evidence was that he downloaded the articles for the group’s purposes but later said that he had brought them to show the authorities in the United Kingdom. Thus the judge and misunderstood the evidence on a core issue in the case.
15. There was further confusion in the findings as a whole which could be seen at paragraph 35. The judge found that she did not find the Appellant to be a credible witness. However the judge did not make a finding whether he was a member of the Quranic Group and she does not say why she did not find him to be a member of that group and there is an ambiguity in the findings. As to the evidence of his wife at paragraph 35, the finding there has no relevance because his wife did not follow his beliefs and that she was not asked any form of questions by the authorities. This demonstrated a misunderstanding in the cultural issues. The Appellant’s wife was not interested in the group nor was she actively following or pursued its activities thus there was a misunderstanding in that respect by the judge. There was a further misunderstanding about the Appellant’s father-in-law reporting what had happened at the house. The evidence was he found the Appellant in a meeting and reported it to the police. The judge’s findings demonstrate that she did not understand the evidence as the Appellant’s father-in-law was opposed to teaching and followed mainstream Islams, it was entirely plausible that he would react like that (see paragraphs 32 and 35 of the determination).
16. As to paragraph 36, the judge said that he could practise his own faith in his home. However that was not the idea behind his beliefs which was that he needed to spread those religious ideas and challenge the State’s view of Islam. Those were the kind of beliefs that could not be carried out in the home and he could not proselytise at home.
17. As to paragraph 31, the judge found that it was not plausible that he would have approached people at his workplace with his ideas. However they are not complete strangers and he had some knowledge of them previously.
18. Thus Ms Kaedic submitted that the judge did not understand the evidence and did not make findings on all the relevant core issues and in those circumstances the decision was not a safe one and should be set aside and another hearing held where proper findings should be made.
19. I then heard submissions from Mr Jarvis. No Rule 24 response had been served, nonetheless he submitted that there was no error of law disclosed in the determination of the First-tier Tribunal (Judge Beg). He relied upon the case of TK (Burundi) v SSHD  EWCA Civ 40. He further submitted that the submissions made by Ms Kaedic went beyond those originally raised in the grounds by Mr Bonavero, namely findings about the Appellant’s wife, that was not raised in the grounds, findings about approaching people or strangers to comment upon the beliefs, that was not in the grounds and there had been no application to amend the grounds and therefore permission did not extend to any new points. I indicated to Mr Jarvis that those points that had been made fell under the umbrella of the general ground raised against the determination of the First-tier Tribunal, namely that the credibility findings that were made did not take into account the evidence and in those circumstances they did not appear to me to be new points. In those circumstances Mr Jarvis dealt with them in any event.
20. Mr Jarvis submitted that whilst the judge appeared to accept he was a member of a Quranic Group, that is not the case from the determination. The judge said at paragraph 35 that she did not find the Appellant a credible witness and at several points at paragraph 35 noted the words “even if” thus it was apparent from the judge’s determination that she did not accept his claim as she had not found him to have given a credible account concerning the events in Sudan. The use of the words “even if” refer to the judge considering the claim on an alternative basis. This is nothing new; judges make findings in the alternative and often make mixed findings and there is nothing remarkable in Judge Beg doing this. Whilst permission appears to have been granted on the basis that the findings are not clear, the findings made demonstrates a mixed approach and there was nothing unlawful or confusing about that. It is clear the judge did not accept the claim of the Appellant at all.
21. He posed the question as to how material was the membership of the Quranic Group and whether or not it was a political or religious claim made by him or mixed? Mr Jarvis submitted that it was more nuanced than this and that the Appellant had said he was a Muslim who carried out certain tenets of the faith but did not accept certain aspects of it and thus it was a political theological attack but the judge had found the Appellant had provided no other information concerning the fate of the 129 people who had been arrested. There was no other background material or any other material to demonstrate that those who held non-Sunni beliefs are subject to any form of persecution. The Appellant’s case was that apostates can be punished under the law but no further material had been provided. The Appellant claimed that his belief system would be regarded as a non-believer but there was no evidence to show that a non-believer would be punished. The Respondent in the refusal letter (referred to at paragraph 5 of the grounds) only relates to general country material of those carrying out activities seen by the authorities as against the State. The Appellant would have to establish that his faith and the way that he practised it or had beliefs would bring him to the attention of the authorities.
22. In this respect there was no evidence save for the two newspaper articles. Whilst it was challenged in the grounds that there was a misunderstanding by the judge by comparison of paragraphs 11 and 13, and that there was a misrecording, there has been no witness statement from Counsel or indeed any extract of the Record of Proceedings to show that there was any such misunderstanding. The basis for suggesting that there was a misunderstanding on the evidence is not made out by the Appellant. In any event at paragraph 28 the judge concluded that it was not plausible that he would have downloaded the material at all and that was a finding that was not challenged in the grounds thus it was not a material error even if it were an error. The judge also did not accept his detention and it is entirely clear that the judge did not accept the evidence. As to his membership of the Tunjur tribe, the judge rejected the evidence of the witness Mr Ahmed (see paragraph 25), she did not place any weight on the letter (see paragraph 26).
23. The judge did not accept his second arrest nor did she accept that the Appellant was charged and rejected the circumstances of the first detention (paragraph 31). The judge found that there was no corroborative medical evidence of torture and whilst the grounds say that an asylum seeker is not required to corroborate his claim, the decision of TK (Burundi) does make it clear that if there is evidence that should be readily available the failure to provide such information can be taken into account by a judge. It does not mean that it can always be taken against the Appellant but the judge made a credibility point in this case by noting that no medical evidence of torture had been produced, such evidence is commonly produced in asylum cases. The judge also found that he was released without charge. The findings were entirely open to the judge to make including those now raised in the grounds for example those regarding the Appellant’s wife and the actions of the father-in-law. The grounds are merely a disagreement with the findings that were made which were open to the judge.
24. As to the submission made about the “cultural context” it has not been demonstrated in what way the culture of Sudan would lead to a specific conclusion. This has just been a term used to disagree with the judge’s conclusions. In respect of the Appellant’s wife it was not a cultural issue and there is no perversity shown in the judge’s findings.
25. As to the Appellant’s ability to practise his faith there is nothing unlawful about the findings made there. The judge did not believe the Appellant in the first place and in any event his view is a theoretical one and not a proselytising one. The judge rejected his involvement with the group and that there was a significant absence of background evidence of the group and consequences of those who had been arrested and prosecuted. For those reasons he did not meet the first test in FJ (Iran) because he did not show that he was a person with religious beliefs that would be persecuted.
26. Ms Kaedic by way of reply reiterated that proper findings had not been made by the judge who had misunderstood the evidence.
27. The issue of where the beliefs would take him outside the Orthodox Islamic beliefs, it was his case that he did not believe in Sunni Islam and therefore that took him outside the mainstream Sudanese faith. He believed in separation of politics and religion (see the asylum interview) and therefore this would run counter to the State and he is outside Orthodox beliefs. It puts him in the position of an unbeliever and outside the faith. Ms Kaedic further submitted that the father-in-law’s actions were entirely plausible. His beliefs seriously challenge Sharia law but the judge did not make any finding about that. The other findings were based on a misunderstanding on the evidence thus it was not safe. She submitted that if an error was found it should be remitted for a fresh hearing because a different Tribunal might reach a different conclusion.
28. At the conclusion of the hearing I reserved my determination.
29. I remind myself that I should only interfere with the judge’s determination if an error of law can be found. I have considered with care the submissions made on behalf of the Appellant as to the asserted errors of law in the First-tier Tribunal Judge’s determination. It is submitted that the judge’s adverse findings of credibility are flawed and in the alternative that there has been a misunderstanding of the evidence in a number of respects. The judge misunderstood the evidence as to why he had downloaded articles from the internet (by reference to paragraphs 11 and 13) and at paragraph 35 it is asserted that the judge made a finding based on misunderstanding “cultural issues” concerning the Appellant’s wife and further that there was a misunderstanding on the evidence by the judge as to why the Appellant’s father-in-law would have reported to him. It is said that it was entirely plausible on the evidence that he would have done so. Therefore it is submitted that the judge’s findings overall are ambiguous, confused and are therefore unsustainable findings which require the determination to be set aside in its entirety.
30. I have considered the submissions but have done so in the light of the determination which must be read as a whole. Whilst Ms Kaedic (and to some extent the grant of permission) make reference to the fact that the judge’s findings on factual issues are difficult to ascertain or are confused and with particular reference to paragraph 35, I do not find this to be the case. The determination should be read as a whole and in doing so, it is entirely plain from the findings that are clearly made by the judge that the judge did not find this Appellant to have given a credible account concerning the core issue of his claim, that is to have been a member of the Quranic Group, who was arrested by the authorities and was detained and ill-treated on two occasions. The judge made a number of adverse credibility findings concerning the core account. Those findings can be summarised as follows. As to his general credibility he claimed to be a member of the Tunjur tribe. The judge’s findings are set out at paragraphs 24 and 25 of the determination. She found that whilst the Appellant was able to answer some of the questions relating to the Tunjur tribe, that notwithstanding that
“he has not been properly able to explain or provide cogent evidence of his membership of the Tunjur tribe, how he was able to get a university education and live an affluent lifestyle in Sudan where he had employment with International House, when most members of the tribe suffer discrimination and lack of opportunities.” (see paragraph 24)
31. The judge also had the opportunity to hear from a witness, Mr Ahmed and at paragraph 25 the judge gave sustainable and evidence-based reasons as to why she attached limited weight to the evidence of Mr Ahmed. She noted that there was no evidence before the Tribunal that Mr Ahmed himself was a member of the Tunjur tribe and that he had accepted the Appellant’s membership of that tribe because he had been introduced to him by Ahmed who was a friend and someone known in the community. The judge referred to an inconsistency in the evidence; whereas the Appellant referred to Ahmed as a relative of Al Tayaeb Hassan Ahmed, where Mr Ahmed on the other hand said that he was not a relative but just a friend and someone known in the community. Thus the judge concluded that Mr Ahmed and the Appellant knew very little about each other; Mr Ahmed did not know whether the Appellant was married or had children or what the basis of his claim for asylum was. The Appellant in turn did not know whether Mr Ahmed was married or had children. They had met by coincidence in Liverpool. Furthermore Mr Ahmed said that he was asked to come to court to give evidence about the donations he collected for refugees and did not state that he had been asked to give evidence about the Appellant’s membership of the Tunjur tribe. The judge also outlined a further discrepancy in the evidence with regard to the collection of donations. Thus she found the evidence of Mr Ahmed to be inconsistent with that of the Appellant and vice versa thus attached limited weight to it.
32. At paragraph 26 she considered the letter from the Council of Peace and Unite from the Tunjur tribe in the United Kingdom dated 22nd August 2013. For the reasons given at paragraph 26 she found there was no explanation from the writer of letter as to how he knew the Appellant was from the Tunjur tribe. Having considered that evidence in the round, the judge rejected the Appellant’s account that he had demonstrated that he was a member of the Tunjur tribe. She noted that even if she accepted that he had been a member of the tribe, it had not been said that he had suffered any discrimination that the background material in the refusal letter referred to such people suffering because they were located in communities within the Darfur Province. As the judge noted the Appellant had never lived in the Darfur Province and had the advantage of a university education and job and thus there was no evidence that he had been discriminated against or targeted living in Khartoum even if his origins were with the Tunjur tribe. There have been no challenges to those findings but they are relevant in this respect because they are general adverse credibility findings made in relation to the evidence of the Appellant.
33. The judge then went on to deal with the core issues relating to his membership of the Quranic Group. Despite the grounds stating that the judge appeared to accept that he was a member of the group, that is plainly not the case if one reads paragraph 35 carefully and in the light of the earlier findings that are made in the body of the determination where the judge gives reasons as to why she rejects the Appellant’s account. At paragraph 27 the judge set out the Appellant’s evidence that he gave in the asylum interview concerning the nature of the group and noticed in this context that the Respondent at paragraph 18 of the refusal letter noted there was no evidence to confirm that such a Quranic Group existed and there was no profile of the leaders. The judge made reference to the Appellant’s evidence claiming that he had referred to the group’s website called ahl-alquran.com and referred to Dr Mansour as the author of books found at his home. The Appellant relied upon two articles which he had downloaded and brought to the UK with him concerning the group and the view the authorities took of the group (they were articles from daily newspapers in Sudan). The judge made a number of observations about those articles and their relevance. The judge noted that the articles were “relatively old” and were published on the “13th September 2011” (paragraph 28). She observed they related to the trial of 129 people on charges of apostasy following a religious sect called the Quaranist. However she noted that the Appellant had failed to produce any further evidence with regard to what actually happened to the 129 people that were charged. In this context, the judge took into account the Appellant’s own evidence that on the second arrest one of those arrested was a person whom the Appellant had remained in contact with whilst being in the UK, who remained in Sudan. The judge observed that there was no evidence that this man had been subjected to prosecution or persecution by the Sudanese authorities as a result of belonging to the Quranic Group.
34. The judge’s findings on the downloading of those articles are set out at paragraphs 28 and 29. It is submitted by Ms Kaedic that there is a misunderstanding of the evidence of the Appellant which had been recorded at paragraphs 11 and 13. It is right to observe that the misunderstanding of this evidence has not been supported by any Record of Proceedings being submitted from Counsel’s note or that of the Presenting Officer. The submission is based on what is recorded at paragraphs 11 and 13 of the determination. Paragraph 11 stated this
“The Appellant said that the articles at pages 1 and 3 of the objective bundle are newspaper articles that he obtained on 16th April 2012 when he was still in Sudan. He said the reason they were not submitted to the Home Office before the day of the appeal hearing is because the Home Office requested the documents to be translated into English and as they were in Arabic, they had to be translated. He said he thought his statement would have been enough. He said he printed off the documents about a year before he left Sudan. He said the group follows political issues and collects articles. He said in Sudan a person charged under the criminal law can either change his beliefs or ideology or face execution. …”
At paragraph 13 it is recorded that
“He said the articles that he obtained online were obtained in 2012 as the group was following what was happening. The Appellant said that he brought the articles with him to the United Kingdom in case he needed them if the authorities asked for documents.”
35. The findings of the judge are set out at paragraphs 28 and 29. Those findings should be set out in full given the assertion made in the grounds that there has been a misunderstanding of the evidence. The judge said this:-
“28. The Respondent noted at paragraph 18 of the refusal letter that no evidence could be found to confirm that the Quranic Group exists and there is no profile of the leaders. At question 161 of the asylum interview the Appellant referred to the group’s website called ahl-alquran.com. He also referred at question 69 to Dr Mansour the author of one of the books found in his home by the authorities. The Appellant relies upon two online articles, the newspapers Al Sahafa and Al Ahrams which are both daily newspapers in Sudan. I find the articles are relatively old and were published on 13th September 2011. The Appellant gave evidence that he kept the articles and brought them with him to the United Kingdom as evidence of his group and of the view the authorities take of the Quranic Group. I find that the Appellant would not have taken the risk of downloading and keeping the articles which refer to the arrest and criminal charges against 129 people whilst he was still living in Sudan and on his own evidence actively involved in the Quranic Group.
29. I do not find it credible that if the Appellant was arrested on 2nd September 2011 and was therefore known to the authorities as a member of the Quranic Group, that he would taken the risk of downloading the articles on 16th April 2012 and keeping them with him. I do not find it credible that the Appellant would have placed himself at risk while still living in Sudan. He said that he downloaded the articles in case he needed to provide evidence when making a claim for asylum. I find that by 16th April 2012 the Appellant had not been arrested on his claimed second arrest. Yet by April 2012 he was already making plans to claim asylum abroad and collecting evidence. The Appellant claimed in the asylum interview and confirmed this in oral evidence that his second arrest took place on 20th April 2013 over a year after he downloaded the articles. It was his second arrest that made him leave Sudan to seek asylum abroad. I find that the Appellant’s credibility is damaged.”
36. I do not find that the judge misunderstood the evidence of the Appellant at all. It is plain that she considered the Appellant’s own evidence recorded at paragraphs 11 and 13 and made findings upon that evidence at paragraph 29. The judge said in respect of the Appellant’s conduct in downloading the articles “He said he downloaded the articles in case he needed to provide evidence when making a claim for asylum” (see paragraph 29). He had downloaded them the year before so as the judge noted that by 16th April 2012 he had not been arrested on his claimed second arrest although he had already been making plans to claim asylum abroad and collect evidence. The second arrest took place on 20th April 2013 confirmed by the Appellant in his oral evidence and the asylum interview which is a year after he downloaded the articles.
37. What the grounds fail to recognise are the judge’s findings at paragraph 28 which deal with the point raised by Ms Kaedic that it was the Appellant’s account not only that he had downloaded them to bring with him but that he had downloaded them in Sudan because that was what the group did. The judge made a clear finding about this; the judge said this at paragraph 28:-
“The Appellant gave evidence that he kept the articles and brought them with him to the United Kingdom as evidence of his group and of the view the authorities take of the Quranic Group. I find that the Appellant would not have taken the risk of downloading and keeping the articles which refer to the arrest and criminal charges against 129 people whilst he was still living in Sudan and on his own evidence actively involved in the Quranic Group.”
The judge went on to also state at paragraph 29:-
“I do not find it credible that if the Appellant was arrested on 2nd September 2011 and was therefore known to the authorities as a member of the Quranic Group, that he would taken the risk of downloading the articles on 16th April 2012 and keeping them with him. I do not find it credible that the Appellant would have placed himself at risk while still living in Sudan.”
Thus parts of paragraph 28 and 29 relate to the articles being downloaded in Sudan but the judge did not believe his account, based on his evidence as a whole, that it was credible that he would have done so given the level of risk that the Appellant’s own evidence had made reference to. There is no challenge to those findings made at paragraphs 28 and 29 and it is plain from the determination that there is no misunderstanding on the judge’s part of the Appellant’s evidence. Thus it is also plain the judge did not accept that he would have downloaded those documents in Sudan (whenever they were downloaded or for whatever reason) as due to the nature of the risk to him and that was based on the Appellant’s own evidence. Thus there is no misunderstanding.
38. As to the other findings, as to the arrest on 2nd September 2011 and his claim to have been detained and ill-treated in detention, the judge made the point that there was no medical evidence to confirm the claim of torture in detention. Ms Kaedic submits that there is no requirement upon asylum seekers to corroborate their account. The general rule is of course that asylum seekers are not required to provide corroboration for the obvious reasons. However as Mr Jarvis submits, and relies upon the decision of TK (Burundi), whilst it is a misdirection to imply that corroboration was necessary for a positive credibility finding, the fact that corroboration is not required does not mean that a judge is required to leave out of account the absence of documentary evidence which could reasonably be expected. It was open to the judge to comment that the Appellant had not provided a medical report. Medical evidence is often relied upon by Appellants seeking asylum as such evidence is capable of supporting their claim to have been ill-treated as part of the factual matrix of their account. The judge recorded in this case that there was no medical report and thus was merely drawing a conclusion from the absence of that evidence which could reasonably be expected to be produced. This was a finding that was open to the judge to make and she was entitled to do so, so long as the judge bore in mind the difficulties faced by asylum seekers in producing corroborative evidence. In any event this was not the only finding and not much weight was placed upon that. There were a number of other adverse findings made relevant to the arrest.
39. The judge rejected the Appellant’s account that he undertook activities for the group at paragraph 31. The Appellant had claimed in his oral evidence that his activities for the Quranic Group consisted of talking to educated and open-minded people in workplaces and universities about the group’s beliefs. The judge found
“I do not find it credible that the Appellant would openly talk to strangers in workplaces and universities about the group’s belief if members of the group were targeted in Sudan by the authorities and considered to be apostates. Anyone of the strangers who he talked to could have reported him to the authorities.”
During her submissions Ms Kaedic submitted that that was a misunderstanding of the evidence and that it was entirely plausible that he would openly talk to people in the workplace because they were strangers he would know them. I do not find that there was any misunderstanding by the judge and that that group is merely a disagreement with the finding reached by the judge. At paragraph 31 the judge refers to the Appellant’s own evidence about talking to people in universities and workplaces. Given the Appellant’s own evidence concerning the risk of harm that was attached to such discussions, it was open to the judge to reach the conclusion that it was not credible that he would take such a risk by talking openly about such matters to those who were strangers to him in workplaces and universities. That was a finding that was entirely open to the judge to make, it was based on the Appellant’s own evidence (see paragraph 33) and therefore is simply a disagreement with the judge’s finding.
40. The second arrest was also rejected. At paragraph 33 the judge found that there was no evidence that the twelve people who were allegedly arrested with the Appellant were subsequently charged with criminal offences and convicted. The judge also found that if the Appellant had been genuinely charged under Article 126A of the Sudanese Criminal Code he would not have been released on bail when the authorities could have detained him further under the law. That was a finding entirely open to the judge and was based on the country materials set out in the refusal letter at paragraphs 19(d) and (e). The background material related to the treatment of criminal suspects in Sudan indicating that warrants were not required for arrest, criminal procedure nor permits authorities to detain individuals for three days without charge which may be extended up to a further 45 days and that individuals accused of violating national security are frequently detained indefinitely without charge. Given that background information, it is noted that the authorities “could have detained you pending your trial. You claim the charges you face were extremely serious and carry the death penalty”. The Appellant had given evidence in his interview that the authorities considered him to be the leader of the group and that it offered protection from prosecuting two members of the group in return for their testimony against him and that he had previously failed to comply with the conditions of a previous release. On the basis of the Appellant’s own evidence, the judge reached the conclusion that if the authorities had a particular and serious adverse interest in the Appellant, and that there was a risk he would not comply with the conditions of his release (as he had not in the first alleged detention), that was found to be inconsistent with his claim that he was released. Those are findings that were based on the evidence and were open to the judge to make.
41. At paragraph 34 the judge considered the Appellant’s evidence that he was released from detention after a financial guarantee paid from his brother in Saudi Arabia. This is a second point upon which the judge noted that there was no corroborative evidence that the Appellant’s brother from Saudi Arabia was visiting Sudan. Again there is no requirement for corroboration but where such evidence would reasonably be likely to be available, that was a matter that the judge was entitled to take into account. The judge further makes the point that the Appellant’s evidence was that authorities “did not know that he was living abroad” (in relation to the Appellant’s brother). However the judge found that if the Appellant was charged with offences that carried the death penalty (this was the claim of the Appellant) the authorities would have made some investigations about the person who stood guarantee for him for his release from detention. That was a point entirely open to the judge to make based on the factual matrix of the Appellant’s account.
42. As to the finding about the Appellant’s wife and the lack of questioning, this was submitted to show a misunderstanding of the “cultural context” of Sudanese society. That has not been supported by any form of country material nor do I find that it is supported by the judge’s findings. The judge was simply making the point that the Appellant’s account was that the Appellant’s wife had told him on the telephone that the authorities had come looking for him and that she told them she did not know anything. That was contrasted with the evidence where the judge found that despite that, there was no evidence that the Appellant’s wife or siblings were questioned by the authorities to find out whether they also held the same beliefs as the Appellant. The judge considered it in the light of the Appellant’s claim that he was someone actively propagating his views and in those circumstances it was reasonable that the authorities would question or interrogate others who were close to the Appellant, bearing in mind not only that it was the father-in-law who had reported him but in any event as noted by the judge, the authorities had attended at the Appellant’s home. There is no misunderstanding about the evidence in that respect and that was a finding that was entirely open to the judge to make.
43. Drawing all those matters together, it is plain when reading the determination as a whole and in particular paragraph 35 in the context of that, that the judge did not accept that the Appellant was a credible witness and said so. The judge did not find that the Appellant had demonstrated that his account of circumstances in Sudan, including his membership of the Quranic Group had been demonstrated to the lower standard. Contrary to the assertion made in the grounds that the judge appeared to accept that he was a member of the Quranic Group, that is not the finding of the judge at all as is plain from paragraph 35 when read in conjunction with the earlier findings. The judge did not accept he was a member nor that he had carried out the activities nor did he find the Appellant had given credible evidence concerning the two arrests noting the lack of evidence in support and the other findings set out. Paragraph 35 clearly refers to findings in the alternative. That is demonstrated by the use of the words “even if” the Appellant his a member of the Quranic Group. That clearly points to the judge’s findings made earlier in the determination that she did not accept that he was such a member nor that he had given a credible account about experiences in Sudan. Therefore the primary findings remain as set out in the earlier paragraphs and it has not been demonstrated to this Tribunal that those primary adverse findings have been made on any misunderstanding of the evidence nor has it been shown that there was any perversity on the part of the judge in reaching such findings on the evidence that was placed before her. I conclude that those findings were ones that were entirely open to the judge to make, having considered the oral and written evidence of the Appellant and in the light of the country materials. The judge disbelieved the Appellant’s account in its totality. In those circumstances, any alternative findings are irrelevant. At paragraph 36 the judge said
“The Appellant has fabricated his claim that he was released on bail and did not answer to that bail and is therefore wanted by the authorities. I do not find the Appellant has been charged with apostasy under the criminal law”
thus finding that there was no risk on return to this Appellant based on the primary findings of fact as made by the judge.
44. As for the second ground, it is asserted that there is a flawed approach by the judge concerning the issue of religious persecution. I do not find that this is made out on the findings of fact made by the judge. Contrary to the assertion at paragraph 2 of the grounds, the judge did not accept that the Appellant was a member of the Quranic Group for the reasons I have stated earlier, nor that he had carried out the activities that he had claimed or that he was wanted by the authorities having been arrested, detained, bailed and then left the country. In those circumstances the judge found that he had not given a credible account of having such a faith. In those circumstances the judge’s comment that he was “able to practise his faith in his own home” need to be seen in the light of any alternative findings which in this case were not strictly necessary to be made. The judge’s primary findings was that she did not accept that the Appellant had engaged in the religious practise in the way that he claimed for the reasons the judge gave. This approach was not simplistic as asserted in the grounds; the judge did not believe that the Appellant had given a credible account when the determination is read as a whole.
45. Consequently for those reasons, I do not find that it has been demonstrated that the judge made an error of law in the determination and it shall stand.
46. The decision of the First-tier Tribunal does not involve the making of an error on a point of law. The decision shall stand.
Signed Date 14/11/2013
Upper Tribunal Judge Reeds