[2003] UKIAT 135
- Case title: AS (Risk as failed asylum seeker, Expert evidence)
- Appellant name: AS
- Status of case: Reported
- Hearing date:
- Promulgation date:
- Publication date:
- Last updated on:
- Country: Burma/Myanmar
- Judges: Mr J Freeman, Mr C P Mather
- Keywords Risk as failed asylum seeker, Expert evidence
The decision
IN THE IMMIGRATION APPEAL TRIBUNAL
AS (Risk as failed asylum seeker – expert evidence) Burma [2003] UKIAT 00135
Heard: 13.10.2003
Signed: 25.07.2013
Sent out: 11 November 2003
IMMIGRATION AND ASYLUM ACTS 1971-99
Before:
John Freeman (chairman)
and
Mr CP Mather (vice-president)
Between:
Appellant
and:
Secretary of State for the Home Department,
Respondent
DECISION ON APPEAL
Miss T Starr (counsel instructed by Sasdev & Co) for the appellant
Miss J Webb for the respondent
This is an appeal from a decision of an adjudicator (Mr TRP Hollingworth), sitting at Nottingham on 8 April, dismissing an asylum and human rights appeal by a citizen of Burma. Leave was given on a number of points, mainly challenging the adjudicator’s credibility findings. There are others, with which we shall begin.
2. This appellant’s history is somewhat unusual. He gave an account of trouble with the military régime (the same then as now), resulting in detention and ill-treatment in 1989-90, when he was only 15-16. Then in 1994 he left Burma on an apparently valid passport to study at his father’s expense in Turkey, where he remained till he came to this country, again on an apparently valid Burmese passport, on 5 October 2002, claiming asylum on the 19th.
3. The appellant is a Sunni Muslim: though he raised no personal complaint about how he was able to practise his religion in Burma, there is a point taken on that in the grounds of appeal, at ground 8. The adjudicator did not need to deal, as he did at § 33, with the appellant’s freedom to worship in Turkey, which was perfectly obvious: however this (ground 8.1) was no more than a negative point. The “country expert” (Mr Win Soe, to whom we shall return) says nothing about any religious persecution. The adjudicator would clearly have been wrong (see ground 7), if he had regarded “sustained persecution” on this basis as essential, though it is by no means clear from § 33 that he is to be read as doing so. The question for us is whether there is anything to show a real risk at all for this appellant as a Muslim in Burma.
4. When we looked at the State Department report (for 2001, the latest provided by the appellant’s solicitors), it became clear that, though Muslims in Arakan province (bordering on Bangladesh) have in the past had, and may continue to have serious problems, and though there have been a number of incidents elsewhere, there is nothing in general to prevent Muslims in Rangoon (the capital, and this appellant’s home town) from practising their religion in peace. Miss Starr realistically acknowledged that, in the light of this, no point based on religion could succeed.
5. The other point which arises, independently of the appellant’s credibility or otherwise, is whether he would face any real risk on return as a failed asylum-seeker. This is based on the “country expert”’s report at § 20, though it is not expressly raised in ground 9, which deals with the adjudicator’s attitude to that. Unfortunately that gentleman did not have before him, as do we, the copy of the appellant’s passport retained by his solicitors. Instead of asking whether one was available (and, having interviewed the appellant himself - see § 12 – he could easily have found out that it was), he chose to speculate in this way:
20. The Military Intelligence have boasted that they would get information of an asylum application within weeks of the application and await the return of the applicant to punish the failed asylum seeker. I can say with a certain degree of confidence that the Military Intelligence would ask questions of a person who has overstayed in the West and would suspect that person of claiming asylum and defaming the present authorities - punishment would inevitably follow Further, and in any event, the US State Department Report indicates that the Burmese authorities do not accept Burmese deportees. Mr Abdul will have a passport which was illegally obtained and that would be apparent on the face of it. Any travel document, which could be given to hum to facilitate his return, will immediately identify him as a deportee from the West as he has failed to fulfil asylum requirements.
21. The authorities would carry out checks on Mr Abdul and it would be apparent that his father is in detention, that he exited the country illegally and claimed asylum in the UK. In the circumstances, Mr Abdul would be detained and thereafter, ill-treated.
6. Not only is there nothing on the face of the passport to show that it is other than regularly obtained, but the appellant himself says in his own statement at § 6 that his father had been released, after three months in detention in 2001. We shall come back to that point on its own merits later; but its importance for the moment relates to Mr Win Soe’s status as a “country expert”. Although the appellant’s statement was signed on 3 April 2003, and Mr Win Soe’s report on the 8th, it is apparent from the papers before us that both had been in existence unsigned before that. Nevertheless, Mr Win Soe had interviewed the appellant before drafting his report, and ought not to have made such a mistake on what might have been a crucial aspect of the case. Nor ought he to have made the assumption he did about the appellant’s passport without asking to see it.
7. Those factors, in someone who himself gives a history of actual involvement in Burmese politics, in our view require Mr Win Soe’s evidence to be treated with the very greatest caution, in this or any other case where it may be relied on. If there is anything in the point about this appellant’s passport at ground 6, or the consequential one about his inevitably being treated as a failed asylum-seeker on his eventual return to Burma, it must depend on his own evidence, to which we shall now come.
8. Miss Starr realistically accepted that, in the light of latter-day Tribunal jurisprudence, the point taken at ground 5, and mentioned in the grant of leave, about the adjudicator’s use of “convinced” was not one which could succeed. While adjudicators would do better to avoid this expression, once automatically taken to imply a mistaken importation of the criminal standard of proof, the context in this case is clear. When the adjudicator said (at § 30) “… but, frankly, I am not convinced in any way about this”, it is quite clear that he meant to indicate a comprehensive disbelief of the appellant (to at least the Karanakaran [2000] Imm AR 271 standard) on this point, as on others. The question for us is whether he is shown on grounds 1 – 4 or 6 to be clearly wrong in that approach, or not.
9. There was an attempt by the solicitors to file further grounds, which reached us only during the course of the hearing; but Miss Starr had already wisely disclaimed any such attempt to elaborate the appellant’s case any further. One point mentioned in the further grounds relates to the appellant’s age during what are said to have been his troubles in 1989-90. While Miss Starr was able to refer us to background evidence (quite apart from Mr Win Soe’s) about someone as young as 14 getting into trouble in this way, we do not think the adjudicator at § 23 is to be read as regarding it as impossible that this appellant should have been detained for a year at that age. (In fact he would have been 15, but nothing turns on that). He was on the other hand perfectly justified in taking the appellant’s age at the time into account as a relevant factor.
10. The other points which arise on the events of 1989-90 appear at grounds 1 and 4. We do not think the adjudicator was entitled to draw the conclusions he did (see ground 4) from what he thought was the lack of any claimed injury on the part of the appellant’s father in the course of his detention during that same time. However, even if one ground is made out on the events of that time, 12 years elapsed before the appellant found it necessary to seek asylum in this country, and it is his situation on possible return now which mainly concerns us, and with which we shall deal at 12 onwards.
11. On the other hand, the appellant’s inability to name the group for which he suffered so much at such an early age (see ground 1) was certainly a relevant factor. While innominate opposition groups may exist or have existed at some points in the political history and geography of the world, Miss Starr was unable to refer us to any evidence of their flourishing in Burma. Both the well-known internal movement of Aung San Suu Kyi (the National League for Democracy), and overseas groups, such as Mr Win Soe’s “Solidarity for Democracy in Burma” and the others he mentions, have their names. As Miss Webb pointed out, the adjudicator did no more at § 23 than note the appellant’s inability to give one for his group as a relevant point, not one which was fatal to his credibility.
12. The only point of any real potential significance in this case is the one which appears at grounds 2 and 3, and is specifically noted at § 1 of the grant of leave. This turns on events during the appellant’s stay in Turkey, and specifically his claim at § 6 of his statement that his father had been arrested in 2001, and detained for three months. That is something the adjudicator was clearly wrong (at § 26) to pass over with the words “Nor, for what it is worth, did anything of great significance happen to the Appellant’s family on the Appellant’s account”. The question for us is whether that three months’ detention of the appellant’s father in 2001 could reasonably be seen as leading to any real risk for himself on return in 2003.
13. That in turn requires discussion of the point about the appellant’s passports at ground 6. The adjudicator dealt with this at some length at §§ 30-31. The appellant has throughout accepted that Burmese passports are not issued without a check by the authorities on the political reliability of the holder. However he says that, when his father sent him to study in Turkey in 1994, he got his passport through an agent. There is nothing to show that this passport was not issued in the appellant’s own name, and in an apparently regular way by the proper authorities in Burma, though, it is said, contrary to the duty of the officer concerned to make proper inquiries. No doubt it would have been officially stamped when the appellant left for Turkey, so that the authorities would have had an official record of his departure. He has never been back to Burma; so they must be well aware that he has been continuously out of the country for the last nine years.
14. That passport, according to the appellant, ran out in 1998. He is silent about how he managed to live in Turkey without a valid one between then and 2000. Whether the 1994 passport was or was not regarded by the Burmese authorities as a genuine one, it would no doubt, like any other passport, have been impossible to renew it, once it had already expired; so the copy before us is of a new passport, declaring itself issued in Yangon (Rangoon) on 14 August 2000, and valid for four years. The appellant’s case is that this was obtained, not by him through the usual channels (which would have been the nearest Burmese Embassy, in Cairo); but by his father, again “under the counter” in Burma, and sent to him in Turkey by hand of another student. There is no indication of why this should all have been done two years after the old one had expired; but two years before the appellant decided to leave Turkey for this country.
15. The current passport bears the appellant’s full name, and a serial number. It bears a British visit visa, issued on 23 May 2002; then there are Turkish entry and exit stamps dated 2 and 4 September, with corresponding Greek stamps on a visa, showing that the appellant made an excursion to that country between those dates. Next there are Turkish entry and exit stamps for 2 and 5 October: it is not clear where the appellant had been in between 4 September and 2 October; but the stamp for 5 October must show the appellant’s final departure for this country, where he is said to have arrived on that day. He had already been given leave to enter on the visit visa on 27 May, as shown by the arrival stamp for Heathrow of that date, on what he said at his screening interview (A6, Q2.16) was a one-week training course. Needless to say, there is no record of when he left this country.
16. What is clear is that the appellant’s current passport has been accepted as genuine by the immigration authorities of three different countries on various occasions. The appellant was already a seasoned traveller when he arrived here on 5 October, and it is clear (see 15) that that was not his first arrival. We regard both the Home Office and the adjudicator as well justified in the point they took (see § 32) about the appellant’s failure to claim on 5 October, or before the 19th; and what he says about how he got the passport has to be seen in the light of that.
17. It also has to be seen in the light of his failure to mention, at Q 53 of his interview on 27 November, that this was not a properly-issued passport at all. Miss Starr suggested that he might have been under some confusion, when he answered that question by saying that his passport and visa had been valid at the time he arrived here, as between a passport which was valid, and one merely apparently so. However we cannot see why someone of his experience should not have mentioned at that point that his passport had been obtained by his father “under the counter”, if that had been true. In our view, the adjudicator was fully justified in rejecting that account.
18. It follows that there is nothing to show that the Burmese authorities had anything against the appellant when they issued his passport on 14 August 2000. Whether or not his father was detained for a time in 2001, it would have been clear to them, and would remain so, that this appellant, in Turkey seven years already by then, had nothing to do with whatever he had got into trouble for. Nor, as Miss Starr suggested, would there be anything suspicious when the appellant eventually returned to Burma, in his passport not having an exit stamp from there, since there is nothing to show they were not well aware he was abroad when they issued it. Despite the adjudicator’s failure to mention the appellant’s father’s 2001 detention, we have no doubt that he was right in the result he reached on the appeal as a whole.
Appeal
John Freeman (chairman)
AS (Risk as failed asylum seeker – expert evidence) Burma [2003] UKIAT 00135
Heard: 13.10.2003
Signed: 25.07.2013
Sent out: 11 November 2003
IMMIGRATION AND ASYLUM ACTS 1971-99
Before:
John Freeman (chairman)
and
Mr CP Mather (vice-president)
Between:
Appellant
and:
Secretary of State for the Home Department,
Respondent
DECISION ON APPEAL
Miss T Starr (counsel instructed by Sasdev & Co) for the appellant
Miss J Webb for the respondent
This is an appeal from a decision of an adjudicator (Mr TRP Hollingworth), sitting at Nottingham on 8 April, dismissing an asylum and human rights appeal by a citizen of Burma. Leave was given on a number of points, mainly challenging the adjudicator’s credibility findings. There are others, with which we shall begin.
2. This appellant’s history is somewhat unusual. He gave an account of trouble with the military régime (the same then as now), resulting in detention and ill-treatment in 1989-90, when he was only 15-16. Then in 1994 he left Burma on an apparently valid passport to study at his father’s expense in Turkey, where he remained till he came to this country, again on an apparently valid Burmese passport, on 5 October 2002, claiming asylum on the 19th.
3. The appellant is a Sunni Muslim: though he raised no personal complaint about how he was able to practise his religion in Burma, there is a point taken on that in the grounds of appeal, at ground 8. The adjudicator did not need to deal, as he did at § 33, with the appellant’s freedom to worship in Turkey, which was perfectly obvious: however this (ground 8.1) was no more than a negative point. The “country expert” (Mr Win Soe, to whom we shall return) says nothing about any religious persecution. The adjudicator would clearly have been wrong (see ground 7), if he had regarded “sustained persecution” on this basis as essential, though it is by no means clear from § 33 that he is to be read as doing so. The question for us is whether there is anything to show a real risk at all for this appellant as a Muslim in Burma.
4. When we looked at the State Department report (for 2001, the latest provided by the appellant’s solicitors), it became clear that, though Muslims in Arakan province (bordering on Bangladesh) have in the past had, and may continue to have serious problems, and though there have been a number of incidents elsewhere, there is nothing in general to prevent Muslims in Rangoon (the capital, and this appellant’s home town) from practising their religion in peace. Miss Starr realistically acknowledged that, in the light of this, no point based on religion could succeed.
5. The other point which arises, independently of the appellant’s credibility or otherwise, is whether he would face any real risk on return as a failed asylum-seeker. This is based on the “country expert”’s report at § 20, though it is not expressly raised in ground 9, which deals with the adjudicator’s attitude to that. Unfortunately that gentleman did not have before him, as do we, the copy of the appellant’s passport retained by his solicitors. Instead of asking whether one was available (and, having interviewed the appellant himself - see § 12 – he could easily have found out that it was), he chose to speculate in this way:
20. The Military Intelligence have boasted that they would get information of an asylum application within weeks of the application and await the return of the applicant to punish the failed asylum seeker. I can say with a certain degree of confidence that the Military Intelligence would ask questions of a person who has overstayed in the West and would suspect that person of claiming asylum and defaming the present authorities - punishment would inevitably follow Further, and in any event, the US State Department Report indicates that the Burmese authorities do not accept Burmese deportees. Mr Abdul will have a passport which was illegally obtained and that would be apparent on the face of it. Any travel document, which could be given to hum to facilitate his return, will immediately identify him as a deportee from the West as he has failed to fulfil asylum requirements.
21. The authorities would carry out checks on Mr Abdul and it would be apparent that his father is in detention, that he exited the country illegally and claimed asylum in the UK. In the circumstances, Mr Abdul would be detained and thereafter, ill-treated.
6. Not only is there nothing on the face of the passport to show that it is other than regularly obtained, but the appellant himself says in his own statement at § 6 that his father had been released, after three months in detention in 2001. We shall come back to that point on its own merits later; but its importance for the moment relates to Mr Win Soe’s status as a “country expert”. Although the appellant’s statement was signed on 3 April 2003, and Mr Win Soe’s report on the 8th, it is apparent from the papers before us that both had been in existence unsigned before that. Nevertheless, Mr Win Soe had interviewed the appellant before drafting his report, and ought not to have made such a mistake on what might have been a crucial aspect of the case. Nor ought he to have made the assumption he did about the appellant’s passport without asking to see it.
7. Those factors, in someone who himself gives a history of actual involvement in Burmese politics, in our view require Mr Win Soe’s evidence to be treated with the very greatest caution, in this or any other case where it may be relied on. If there is anything in the point about this appellant’s passport at ground 6, or the consequential one about his inevitably being treated as a failed asylum-seeker on his eventual return to Burma, it must depend on his own evidence, to which we shall now come.
8. Miss Starr realistically accepted that, in the light of latter-day Tribunal jurisprudence, the point taken at ground 5, and mentioned in the grant of leave, about the adjudicator’s use of “convinced” was not one which could succeed. While adjudicators would do better to avoid this expression, once automatically taken to imply a mistaken importation of the criminal standard of proof, the context in this case is clear. When the adjudicator said (at § 30) “… but, frankly, I am not convinced in any way about this”, it is quite clear that he meant to indicate a comprehensive disbelief of the appellant (to at least the Karanakaran [2000] Imm AR 271 standard) on this point, as on others. The question for us is whether he is shown on grounds 1 – 4 or 6 to be clearly wrong in that approach, or not.
9. There was an attempt by the solicitors to file further grounds, which reached us only during the course of the hearing; but Miss Starr had already wisely disclaimed any such attempt to elaborate the appellant’s case any further. One point mentioned in the further grounds relates to the appellant’s age during what are said to have been his troubles in 1989-90. While Miss Starr was able to refer us to background evidence (quite apart from Mr Win Soe’s) about someone as young as 14 getting into trouble in this way, we do not think the adjudicator at § 23 is to be read as regarding it as impossible that this appellant should have been detained for a year at that age. (In fact he would have been 15, but nothing turns on that). He was on the other hand perfectly justified in taking the appellant’s age at the time into account as a relevant factor.
10. The other points which arise on the events of 1989-90 appear at grounds 1 and 4. We do not think the adjudicator was entitled to draw the conclusions he did (see ground 4) from what he thought was the lack of any claimed injury on the part of the appellant’s father in the course of his detention during that same time. However, even if one ground is made out on the events of that time, 12 years elapsed before the appellant found it necessary to seek asylum in this country, and it is his situation on possible return now which mainly concerns us, and with which we shall deal at 12 onwards.
11. On the other hand, the appellant’s inability to name the group for which he suffered so much at such an early age (see ground 1) was certainly a relevant factor. While innominate opposition groups may exist or have existed at some points in the political history and geography of the world, Miss Starr was unable to refer us to any evidence of their flourishing in Burma. Both the well-known internal movement of Aung San Suu Kyi (the National League for Democracy), and overseas groups, such as Mr Win Soe’s “Solidarity for Democracy in Burma” and the others he mentions, have their names. As Miss Webb pointed out, the adjudicator did no more at § 23 than note the appellant’s inability to give one for his group as a relevant point, not one which was fatal to his credibility.
12. The only point of any real potential significance in this case is the one which appears at grounds 2 and 3, and is specifically noted at § 1 of the grant of leave. This turns on events during the appellant’s stay in Turkey, and specifically his claim at § 6 of his statement that his father had been arrested in 2001, and detained for three months. That is something the adjudicator was clearly wrong (at § 26) to pass over with the words “Nor, for what it is worth, did anything of great significance happen to the Appellant’s family on the Appellant’s account”. The question for us is whether that three months’ detention of the appellant’s father in 2001 could reasonably be seen as leading to any real risk for himself on return in 2003.
13. That in turn requires discussion of the point about the appellant’s passports at ground 6. The adjudicator dealt with this at some length at §§ 30-31. The appellant has throughout accepted that Burmese passports are not issued without a check by the authorities on the political reliability of the holder. However he says that, when his father sent him to study in Turkey in 1994, he got his passport through an agent. There is nothing to show that this passport was not issued in the appellant’s own name, and in an apparently regular way by the proper authorities in Burma, though, it is said, contrary to the duty of the officer concerned to make proper inquiries. No doubt it would have been officially stamped when the appellant left for Turkey, so that the authorities would have had an official record of his departure. He has never been back to Burma; so they must be well aware that he has been continuously out of the country for the last nine years.
14. That passport, according to the appellant, ran out in 1998. He is silent about how he managed to live in Turkey without a valid one between then and 2000. Whether the 1994 passport was or was not regarded by the Burmese authorities as a genuine one, it would no doubt, like any other passport, have been impossible to renew it, once it had already expired; so the copy before us is of a new passport, declaring itself issued in Yangon (Rangoon) on 14 August 2000, and valid for four years. The appellant’s case is that this was obtained, not by him through the usual channels (which would have been the nearest Burmese Embassy, in Cairo); but by his father, again “under the counter” in Burma, and sent to him in Turkey by hand of another student. There is no indication of why this should all have been done two years after the old one had expired; but two years before the appellant decided to leave Turkey for this country.
15. The current passport bears the appellant’s full name, and a serial number. It bears a British visit visa, issued on 23 May 2002; then there are Turkish entry and exit stamps dated 2 and 4 September, with corresponding Greek stamps on a visa, showing that the appellant made an excursion to that country between those dates. Next there are Turkish entry and exit stamps for 2 and 5 October: it is not clear where the appellant had been in between 4 September and 2 October; but the stamp for 5 October must show the appellant’s final departure for this country, where he is said to have arrived on that day. He had already been given leave to enter on the visit visa on 27 May, as shown by the arrival stamp for Heathrow of that date, on what he said at his screening interview (A6, Q2.16) was a one-week training course. Needless to say, there is no record of when he left this country.
16. What is clear is that the appellant’s current passport has been accepted as genuine by the immigration authorities of three different countries on various occasions. The appellant was already a seasoned traveller when he arrived here on 5 October, and it is clear (see 15) that that was not his first arrival. We regard both the Home Office and the adjudicator as well justified in the point they took (see § 32) about the appellant’s failure to claim on 5 October, or before the 19th; and what he says about how he got the passport has to be seen in the light of that.
17. It also has to be seen in the light of his failure to mention, at Q 53 of his interview on 27 November, that this was not a properly-issued passport at all. Miss Starr suggested that he might have been under some confusion, when he answered that question by saying that his passport and visa had been valid at the time he arrived here, as between a passport which was valid, and one merely apparently so. However we cannot see why someone of his experience should not have mentioned at that point that his passport had been obtained by his father “under the counter”, if that had been true. In our view, the adjudicator was fully justified in rejecting that account.
18. It follows that there is nothing to show that the Burmese authorities had anything against the appellant when they issued his passport on 14 August 2000. Whether or not his father was detained for a time in 2001, it would have been clear to them, and would remain so, that this appellant, in Turkey seven years already by then, had nothing to do with whatever he had got into trouble for. Nor, as Miss Starr suggested, would there be anything suspicious when the appellant eventually returned to Burma, in his passport not having an exit stamp from there, since there is nothing to show they were not well aware he was abroad when they issued it. Despite the adjudicator’s failure to mention the appellant’s father’s 2001 detention, we have no doubt that he was right in the result he reached on the appeal as a whole.
Appeal
John Freeman (chairman)