As (Risk as failed asylum seeker – expert evidence)
| Jurisdiction | England & Wales |
| Judge | John Freeman,Mr CP Mather |
| Judgment Date | 26 October 2017 |
| Neutral Citation | [2003] UKIAT 135 |
| Court | Immigration Appeals Tribunal |
| Date | 26 October 2017 |
[2003] UKIAT 135
IN THE IMMIGRATION APPEAL TRIBUNAL
IMMIGRATION AND ASYLUM ACTS 1971-99
John Freeman (Chairman)
and
Mr CP Mather (Vice-President)
Miss T Starr (counsel instructed by Sasdev & Co) for the appellant
Miss J Webb for the respondent
AS (Risk as failed asylum seeker — expert evidence) Burma
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.
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 19 th.
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.
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.
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.
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 8 th, 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.
Those factors, in someone who himself gives a history of actual involvement in Burmese politics, in...
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