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EXTRA DIVISION, INNER HOUSE, COURT OF SESSION
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Lord Macfadyen
Lord Kingarth
Sir David Edward, Q.C.
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[2007] CSIH 59
XA43/06
OPINION OF THE COURT
delivered by LORD MACFADYEN
in
APPLICATION FOR LEAVE TO APPEAL
under section 103B of the
Nationality Immigration and Asylum Act 2002
by
M.A.M.S.
Applicant;
against
THE SECRETARY OF STATE FOR
THE HOME DEPARTMENT
Respondent:
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Act: Forrest; Drummond Miller, W.S.
Alt: A. Stewart; Office of the
Solicitor to the Advocate General
5 July 2007
[1] This is an
application for leave to appeal to this court from a decision of the Asylum and
Immigration Tribunal refusing the applicant's appeal against the adjudicator's
decision refusing the appeal from the respondent's refusal of his asylum and
related human rights claims. Permission
to appeal to this court was previously refused by the Asylum and Immigration
Tribunal.
[2] The Asylum
and Immigration Tribunal held that the adjudicator's findings were findings
which were open to her in the circumstances and the focus of the application
before us was therefore on the adjudicator's determination rather than on that
of the Asylum and Immigration Tribunal.
[3] The applicant
is a 28 year old citizen of Sudan.
He fled to the United Kingdom in March 2004 and on his arrival
here he claimed asylum. In paragraphs
55 to 57 of her determination the adjudicator discussed her reasons for
rejecting the credibility of the applicant's account of his reasons for fearing
persecution because of his ethnicity and imputed political opinions if he were
returned to Sudan.
She recorded that the applicant stated that the Sudanese Government
believed him to belong to the rebel groups based in the south of Sudan.
She expressed the conclusion that she did not find it credible that if the
Sudanese Government thought he was involved in those groups he would have been
released from detention on two occasions, in June 2001 and November 2003. She added, in paragraph 56, that it lacked
credibility that, after the Sudanese army kept him in a camp for four years and
tortured him on suspicion of his being a rebel, he was then returned to his own
village. A third point, made in
paragraph 57, relating to the credibility of an account of funds for the
applicant's flight having been raised by his mother by selling her gold, was
not relied on in the presentation of the application in this court.
[4] In paragraph
58 of her determination the adjudicator said:
"There is a ceasefire in force in Sudan today and a peace accord is being
negotiated. I have considered the
position of returning asylum seekers to Sudan.
I do not believe that this Appellant would be on the list of wanted
people and based on the background evidence, in particular the CIPU Report, I find that this Appellant would have no difficulty
in returning to Sudan today. The Danish Fact-Finding Report with added
letter state [sic] that the
Netherlands Embassy was not aware of any examples of people suffering any harm
while being questioned and that there is no suggestion that the returnees were
regularly detained. The only reason a
returnee might be questioned would be in connection with tax payments due by
them".
In paragraph 59 the adjudicator added:
"I find that based on the background
evidence the appellant could return to Khartoum and live there if he did not want to
return to his own village".
[5] In paragraph
62 of her determination the adjudicator went on to comment adversely on the
credibility of the applicant's story saying that he had told lies throughout
his account. She set out various
instances in support of that conclusion.
[6] For the
applicant, Mr. Forrest advanced two submissions. The first was that the adjudicator was not
entitled to come to the conclusions she did on credibility in paragraphs 55 and
56. He did not similarly attack the
sufficiency of the basis for the conclusions on credibility in paragraphs 57
and 62. The point taken was that to
judge the credibility of the applicant's story by reference to what might be
thought reasonably to be expected as the reaction of the Sudanese forces was
not a rational approach since they could not be expected to act in any
particular way. It seems to us that,
whether that approach by the adjudicator was flawed or not, the point leaves
untouched the conclusion expressed in paragraph 58, namely that the applicant
would not be persecuted if he were returned to Sudan.
If that conclusion remains uncontroverted the issue of credibility
recedes from prominence and does not affect the outcome of the
application. The same may be said of the
second point made by Mr. Forrest, which related to the first sentence of
paragraph 59. Whether or not the
adjudicator dealt properly with whether the applicant could safely seek refuge in
Khartoum is of no moment if it is properly
found that he could safely return to his own village in the Sudan, as the adjudicator held in
paragraph 58 of her determination.
[7] Moreover,
even if the adjudicator erred in her approach to credibility in paragraphs
55 and 56, we are not satisfied that that would be sufficient to overcome
the adverse findings on credibility in paragraphs 57 and 62 which remained
unchallenged.
[8] For these
reasons we are not persuaded that the appeal can be said to have reasonable
prospects of success. We therefore
refuse the application for leave to appeal.
