[2004] UKIAT 119
- Case title: ST (Corroboration, Kasolo)
- Appellant name: ST
- Status of case: Reported
- Hearing date:
- Promulgation date:
- Publication date:
- Last updated on:
- Country: Ethiopia
- Judges: Mr H J E Latter, Mrs R Faux JP
- Keywords Corroboration, Kasolo
The decision
H-TW-V2
Heard at Field House
ST (Corroboration – Kasolo) Ethiopia [2004] UKIAT 00119
On 20 April 2004
Prepared 20 April 2004
IMMIGRATION APPEAL TRIBUNAL
Date Determination notified:
27 May 2004
Before:
Mr H J E Latter - Vice President
Mrs R Faux JP
Between
APPELLANT
and
SECRETARY OF STATE FOR THE HOME DEPARTMENT
RESPONDENT
Representation:
For the Appellant: Mr Z Jafferji of Counsel
For the Respondent: Mr I Richards, Home Office Presenting Officer
DETERMINATION AND REASONS
1. The Appellant, a citizen of Ethiopia, appeals against the determination of an Adjudicator, Mrs R Goldfarb, who dismissed his appeal against the decision made on 2 June 2003 refusing him leave to enter following the refusal of his claim for asylum.
2. The Appellant arrived in the United Kingdom at Heathrow Airport on 11 April 2003 and claimed asylum on arrival. The basis of his claim can be briefly be summarised as follows.
3. The Appellant is a well-known football player in Ethiopia. In 2001 he became a member of the EDP and had the responsibility of recruiting new members to the party. He began having problems when he was selected to pay for the national team. If he was playing abroad the other players would have their own passports but his passport was kept by the Football Federation. He was also assigned additional security during his football activities. The Football Federation attempted to force him to play for government teams which are military teams. He was told that if he refused to play either he or his family members would be in danger. He did refuse to play. He knew that if he accepted a position he would be recruited as a solider.
4. The Appellant was given a warning and about two weeks later one of his brothers was killed by government soldiers. His refusal to play continued and he suffered harassment from the military. On one occasion he found that his car had been smashed. Two days later soldiers came to his home and told him that if he did not leave his own football team and stop his involvement with the EDP he would be killed. There was another occasion when he was leaving his house and two soldiers were waiting for him. One of them hit him in the face with the butt of a gun. The appellant fell down and was knocked unconscious. He was taken to hospital where he stayed for a week. He had an operation on his eyelid where he had been hit. He then recovered for two or three weeks.
5. The Appellant approached the Ethiopian Cultural Minister to ask if he could have a letter in support of an application to obtain a visa to leave the country and play football in the United Kingdom. The government put pressure on his football club to write to the British Embassy as they did not want him to leave. He realised how critical the situation was for both himself and his wife. He approached an agent to help them cross the border into Kenya. They arrived in Nairobi on 1 January 2003. They remained there for three months awaiting the agent’s further actions and in April 2003 he was able to board a plane for the United Kingdom.
6. The Adjudicator did not believe the account given by the Appellant. She has set out her findings and conclusions in paragraphs 32-35 of her determination. The Appellant had asserted that he kept his own political affiliations secret from his football club although they were known to the Football Federation. The Adjudicator did not consider this credible. The Football Federation was said to be trying to force the Appellant to play for government teams which were military teams but there was no objective evidence to support this assertion.
7. The appellant had said that because of his failure to play for the military team his brother had been killed and that later his own car had been smashed up. The Adjudicator commented that there was no evidence before her to support any of those assertions. She acknowledged that it was often difficult for claimants in asylum cases to provide documentation but she did consider that it would not have been difficult for the Appellant to have provided a death certificate relating to his brother. He had suffered injuries to his eye and had received hospital treatment. It would not have been unduly difficult to have provided some written evidence in support of that assertion.
8. The Adjudicator did not believe that the appellant was of any interest to the authorities nor that there was a serious risk if returned to Ethiopia that he would suffer ill-treatment amounting to persecution. She commented that there was no evidence to support his assertions. She had given the case the most anxious scrutiny and had exercised extreme caution before finding that the Appellant was lacking in credibility. She referred to paragraphs 203 and 204 of the United Nations Handbook and to the case of Chiver (10758). The appeal was dismissed on both asylum and human rights grounds.
9. In the grounds of appeal it is argued that the Adjudicator attached too much weight to the absence of documentary evidence and had erred in law by implying that corroboration was necessary: Kasolo (13190). It is argued that the Adjudicator made corroboration a necessary ingredient to making a positive finding on credibility and thereby misdirected herself. It was on this ground only that permission to appeal was granted.
10. At the hearing before the Tribunal Mr Jafferji argued that the references the Adjudicator made to the absence of documentary evidence in paragraphs 32, 33 and 35 of her determination showed the undue weight she had attached to its absence. It indicated that she had erred in her approach to the assessment of the evidence. In substance she had required corroboration and this was the reason she had found the Appellant not to be credible.
11. Mr Jafferji applied for permission to vary his grounds to argue that the Adjudicator had failed to deal with the issue of whether there was a risk to the Appellant on return as a failed asylum seeker. This had been raised in the Appellant's skeleton argument before the Adjudicator but it had not been considered in the determination. Even if the Appellant's account was disbelieved, there was a risk that because of his occupation and the fact that he had made an unsuccessful claim for asylum, he would face persecution from the authorities on return. Mr Jafferji conceded that there was no evidence to support a contention that failed asylum seekers per se were at risk on return but the risk to the Appellant came from his own particular standing as a well-known footballer.
12. Mr Richards submitted that the Adjudicator had not misdirected herself on the issue of corroboration. The burden of proof remained on the Appellant. The Adjudicator was entitled to comment on the absence of documentary evidence when assessing what weight to attach the Appellant's oral evidence. He argued that the Appellant should not be permitted to amend his grounds at this late stage. There was no indication whether the failed asylum seeker point was pursued before the Adjudicator. If there was any substance in the point, it was surprising that it had not been raised in the grounds of appeal.
13. The Tribunal will deal firstly with the application to vary the grounds of appeal. The application is made at the last moment. The only explanation for the late application is that the point was spotted by Mr Jafferji when he recently received the papers. The point is certainly raised in the skeleton argument that the Appellant would be at risk as a failed asylum seeker but there is nothing in the determination to indicate that the point was pursued before the Adjudicator. If it was and if it formed an integral part of the submissions, there is no explanation why the point was not raised in the grounds of appeal. Further, the Tribunal is not satisfied that the ground would have any real prospect of success. As Mr Jafferji concedes there is no evidence to support a contention that failed asylum seekers are at risk in Ethiopia for that reason alone. Even assuming that this application becomes known to the Ethiopian authorities, the Tribunal is not satisfied that there is any basis for a finding that it would lead to the Appellant being persecuted or treated contrary to Article 3 on return.
14. The main issue in this appeal is whether the Adjudicator’s findings on the issue of credibility are undermined by her comments on the absence of documentary evidence. There is no requirement for corroboration and in Kasolo the Tribunal held that it was a misdirection to imply that corroboration was necessary. In our judgment the Adjudicator has not made this error. She acknowledged in paragraph 33 of her determination that asylum claimants often have difficulties in providing documentation to support their accounts. She reminded herself of the provisions of paragraphs 203 and 204 of the UNHCR Handbook. Paragraph 203 reads as follows:
“After the applicant has made a genuine effort to substantiate his story there may still be a lack of evidence for some of his statements. As explained above (paragraph 196) it is hardly possible for a refugee to prove every part of his case and, indeed if this were a requirement the majority of refugees would not be recognised. It is therefore frequently necessary to give the applicant the benefit of the doubt.”
Paragraph 196 refers to the fact that an applicant may not be able to support his statements by documentary or other proof and cases in which an applicant can provide evidence of all his statements will be the exception rather than the rule. The Adjudicator reminded herself of these general principles and the Tribunal is not satisfied that the Adjudicator required corroboration before accepting the Appellant's account of events.
15. The fact that corroboration is not required does not mean that an Adjudicator is required to leave out of account the absence of documentary evidence which might reasonably be expected. An appeal must be determined on the basis of the evidence produced but the weight to be attached to oral evidence may be affected by a failure to produce other evidence in support. The Adjudicator was entitled to comment that it would not have been difficult for the Appellant to provide a death certificate concerning his brother or some evidence to support his contention that he had received hospital treatment. These were issues of fact for the Adjudicator to assess. When the Adjudicator says in paragraph 35 that there is no evidence to support his assertions, it is clear, and both representatives accept, that the Adjudicator is referring to evidence which supports or corroborates the oral evidence of the Appellant.
16. In summary the Tribunal is not satisfied that the Appellant erred in law in her assessment of the Appellant's evidence. She has not imposed a requirement for corroboration nor has she taken irrelevant factors into account. Her findings were open to her for the reasons she gave.
17. It follows that this appeal is dismissed.
H J E LATTER
VICE PRESIDENT
Heard at Field House
ST (Corroboration – Kasolo) Ethiopia [2004] UKIAT 00119
On 20 April 2004
Prepared 20 April 2004
IMMIGRATION APPEAL TRIBUNAL
Date Determination notified:
27 May 2004
Before:
Mr H J E Latter - Vice President
Mrs R Faux JP
Between
APPELLANT
and
SECRETARY OF STATE FOR THE HOME DEPARTMENT
RESPONDENT
Representation:
For the Appellant: Mr Z Jafferji of Counsel
For the Respondent: Mr I Richards, Home Office Presenting Officer
DETERMINATION AND REASONS
1. The Appellant, a citizen of Ethiopia, appeals against the determination of an Adjudicator, Mrs R Goldfarb, who dismissed his appeal against the decision made on 2 June 2003 refusing him leave to enter following the refusal of his claim for asylum.
2. The Appellant arrived in the United Kingdom at Heathrow Airport on 11 April 2003 and claimed asylum on arrival. The basis of his claim can be briefly be summarised as follows.
3. The Appellant is a well-known football player in Ethiopia. In 2001 he became a member of the EDP and had the responsibility of recruiting new members to the party. He began having problems when he was selected to pay for the national team. If he was playing abroad the other players would have their own passports but his passport was kept by the Football Federation. He was also assigned additional security during his football activities. The Football Federation attempted to force him to play for government teams which are military teams. He was told that if he refused to play either he or his family members would be in danger. He did refuse to play. He knew that if he accepted a position he would be recruited as a solider.
4. The Appellant was given a warning and about two weeks later one of his brothers was killed by government soldiers. His refusal to play continued and he suffered harassment from the military. On one occasion he found that his car had been smashed. Two days later soldiers came to his home and told him that if he did not leave his own football team and stop his involvement with the EDP he would be killed. There was another occasion when he was leaving his house and two soldiers were waiting for him. One of them hit him in the face with the butt of a gun. The appellant fell down and was knocked unconscious. He was taken to hospital where he stayed for a week. He had an operation on his eyelid where he had been hit. He then recovered for two or three weeks.
5. The Appellant approached the Ethiopian Cultural Minister to ask if he could have a letter in support of an application to obtain a visa to leave the country and play football in the United Kingdom. The government put pressure on his football club to write to the British Embassy as they did not want him to leave. He realised how critical the situation was for both himself and his wife. He approached an agent to help them cross the border into Kenya. They arrived in Nairobi on 1 January 2003. They remained there for three months awaiting the agent’s further actions and in April 2003 he was able to board a plane for the United Kingdom.
6. The Adjudicator did not believe the account given by the Appellant. She has set out her findings and conclusions in paragraphs 32-35 of her determination. The Appellant had asserted that he kept his own political affiliations secret from his football club although they were known to the Football Federation. The Adjudicator did not consider this credible. The Football Federation was said to be trying to force the Appellant to play for government teams which were military teams but there was no objective evidence to support this assertion.
7. The appellant had said that because of his failure to play for the military team his brother had been killed and that later his own car had been smashed up. The Adjudicator commented that there was no evidence before her to support any of those assertions. She acknowledged that it was often difficult for claimants in asylum cases to provide documentation but she did consider that it would not have been difficult for the Appellant to have provided a death certificate relating to his brother. He had suffered injuries to his eye and had received hospital treatment. It would not have been unduly difficult to have provided some written evidence in support of that assertion.
8. The Adjudicator did not believe that the appellant was of any interest to the authorities nor that there was a serious risk if returned to Ethiopia that he would suffer ill-treatment amounting to persecution. She commented that there was no evidence to support his assertions. She had given the case the most anxious scrutiny and had exercised extreme caution before finding that the Appellant was lacking in credibility. She referred to paragraphs 203 and 204 of the United Nations Handbook and to the case of Chiver (10758). The appeal was dismissed on both asylum and human rights grounds.
9. In the grounds of appeal it is argued that the Adjudicator attached too much weight to the absence of documentary evidence and had erred in law by implying that corroboration was necessary: Kasolo (13190). It is argued that the Adjudicator made corroboration a necessary ingredient to making a positive finding on credibility and thereby misdirected herself. It was on this ground only that permission to appeal was granted.
10. At the hearing before the Tribunal Mr Jafferji argued that the references the Adjudicator made to the absence of documentary evidence in paragraphs 32, 33 and 35 of her determination showed the undue weight she had attached to its absence. It indicated that she had erred in her approach to the assessment of the evidence. In substance she had required corroboration and this was the reason she had found the Appellant not to be credible.
11. Mr Jafferji applied for permission to vary his grounds to argue that the Adjudicator had failed to deal with the issue of whether there was a risk to the Appellant on return as a failed asylum seeker. This had been raised in the Appellant's skeleton argument before the Adjudicator but it had not been considered in the determination. Even if the Appellant's account was disbelieved, there was a risk that because of his occupation and the fact that he had made an unsuccessful claim for asylum, he would face persecution from the authorities on return. Mr Jafferji conceded that there was no evidence to support a contention that failed asylum seekers per se were at risk on return but the risk to the Appellant came from his own particular standing as a well-known footballer.
12. Mr Richards submitted that the Adjudicator had not misdirected herself on the issue of corroboration. The burden of proof remained on the Appellant. The Adjudicator was entitled to comment on the absence of documentary evidence when assessing what weight to attach the Appellant's oral evidence. He argued that the Appellant should not be permitted to amend his grounds at this late stage. There was no indication whether the failed asylum seeker point was pursued before the Adjudicator. If there was any substance in the point, it was surprising that it had not been raised in the grounds of appeal.
13. The Tribunal will deal firstly with the application to vary the grounds of appeal. The application is made at the last moment. The only explanation for the late application is that the point was spotted by Mr Jafferji when he recently received the papers. The point is certainly raised in the skeleton argument that the Appellant would be at risk as a failed asylum seeker but there is nothing in the determination to indicate that the point was pursued before the Adjudicator. If it was and if it formed an integral part of the submissions, there is no explanation why the point was not raised in the grounds of appeal. Further, the Tribunal is not satisfied that the ground would have any real prospect of success. As Mr Jafferji concedes there is no evidence to support a contention that failed asylum seekers are at risk in Ethiopia for that reason alone. Even assuming that this application becomes known to the Ethiopian authorities, the Tribunal is not satisfied that there is any basis for a finding that it would lead to the Appellant being persecuted or treated contrary to Article 3 on return.
14. The main issue in this appeal is whether the Adjudicator’s findings on the issue of credibility are undermined by her comments on the absence of documentary evidence. There is no requirement for corroboration and in Kasolo the Tribunal held that it was a misdirection to imply that corroboration was necessary. In our judgment the Adjudicator has not made this error. She acknowledged in paragraph 33 of her determination that asylum claimants often have difficulties in providing documentation to support their accounts. She reminded herself of the provisions of paragraphs 203 and 204 of the UNHCR Handbook. Paragraph 203 reads as follows:
“After the applicant has made a genuine effort to substantiate his story there may still be a lack of evidence for some of his statements. As explained above (paragraph 196) it is hardly possible for a refugee to prove every part of his case and, indeed if this were a requirement the majority of refugees would not be recognised. It is therefore frequently necessary to give the applicant the benefit of the doubt.”
Paragraph 196 refers to the fact that an applicant may not be able to support his statements by documentary or other proof and cases in which an applicant can provide evidence of all his statements will be the exception rather than the rule. The Adjudicator reminded herself of these general principles and the Tribunal is not satisfied that the Adjudicator required corroboration before accepting the Appellant's account of events.
15. The fact that corroboration is not required does not mean that an Adjudicator is required to leave out of account the absence of documentary evidence which might reasonably be expected. An appeal must be determined on the basis of the evidence produced but the weight to be attached to oral evidence may be affected by a failure to produce other evidence in support. The Adjudicator was entitled to comment that it would not have been difficult for the Appellant to provide a death certificate concerning his brother or some evidence to support his contention that he had received hospital treatment. These were issues of fact for the Adjudicator to assess. When the Adjudicator says in paragraph 35 that there is no evidence to support his assertions, it is clear, and both representatives accept, that the Adjudicator is referring to evidence which supports or corroborates the oral evidence of the Appellant.
16. In summary the Tribunal is not satisfied that the Appellant erred in law in her assessment of the Appellant's evidence. She has not imposed a requirement for corroboration nor has she taken irrelevant factors into account. Her findings were open to her for the reasons she gave.
17. It follows that this appeal is dismissed.
H J E LATTER
VICE PRESIDENT