Petition Of Mutas Elabas For Judicial Review Of A Special Adjudicator And Immigration Appeal Tribunal
| Jurisdiction | Scotland |
| Judge | Lord Reed |
| Docket Number | P1189/03 |
| Date | 02 July 2004 |
| Court | Court of Session |
| Published date | 02 July 2004 |
| OUTER HOUSE, COURT OF SESSION | |
| P1189/03
| OPINION OF LORD REED in Petition of MUTAS ELABAS Petitioner; for Judicial Review of determinations of a Special Adjudicator and of an Immigration Appeal Tribunal ________________ |
Petitioner: Devlin; Drummond Miller, W.S.
Respondent: Drummond; Solicitor to the Advocate General
2 July 2004
[1]The petitioner was born on 6 May 1975 and is a national of Sudan. He arrived in the United Kingdom clandestinely. On 17 November 1997 he applied for asylum. By letter dated 20 February 2001 his application was refused by the Secretary of State for the Home Department. On 7 March 2001 he was served with a notice of decision to issue removal directions. He then appealed against the refusal of asylum to an adjudicator. The appeal was heard on 5 September 2001. The petitioner was represented at the hearing by counsel. By a determination dated 25 September 2001 the adjudicator refused the appeal. The petitioner then applied to the Immigration Appeal Tribunal for leave to appeal against the determination of the adjudicator. Leave to appeal was refused in terms of a determination dated 5 December 2001. In the present proceedings the petitioner seeks the reduction of the determinations of the adjudicator and of the tribunal. The only respondent is the Secretary of State.
[2]In order to qualify for asylum under the Immigration Rules (HC 251, 1990), the applicant must have the status of a refugee under article 1A(2) of the Geneva Convention relating to the Status of Refugees (Geneva, 28 July 1951; Cmnd 9171), as amended by the 1967 Protocol (New York, 31 January 1967; Cmnd 3906). The first matter to be established under the article is that the claimant is outside the country of his nationality owing to a well-founded fear of persecution.
[3]The petitioner's application for asylum was supported by a statement prepared with the assistance of his representatives. In the statement, the petitioner said that his problems had started on 21 October 1995, when his father had been arrested by the Sudanese security police. His father was thereafter held in custody:
"We managed to get information that my father was accused of being a member of UMMA. (He actually was a member)."
According to the Country Assessment for Sudan prepared by the Home Office's Country Information and Policy Unit, UMMA is a Mahdist political party based on the Koran and Islamic traditions. It is one of Sudan's main opposition political parties. It signed a peace accord with the Sudanese Government in November 1999, following which its leaders returned to Sudan from exile.
[4]In the statement, the petitioner also said that security men had come to his house, in Kosti, about 20 days after his father's arrest, wanting his father's documents. From then on, security men came to the house about twice a month. They would threaten the petitioner and his mother. These visits continued while the petitioner was doing his military service.
[5]In the statement, the petitioner also said that he had started compulsory military service in August 1997. After physical training, he was informed that he was to commence weapons training on 3 October 1997 at an establishment on the outskirts of Khartoum. A convoy of buses, each containing conscripts and armed officers, went instead to Khartoum airport. The conscripts then realised that they were to be flown to the southern Sudan, to fight in the civil war against the Sudan People's Liberation Army (SPLA). Many of the conscripts then tried to escape. The officers were overpowered. Seven conscripts escaped. The petitioner climbed the airport wall and made his way back to his home. On 11 October 1997, with the assistance of his uncle, he was taken on board a ship leaving Sudan, and left the country. He did not have family anywhere except Kosti.
[6]The petitioner's application for asylum was also supported by a letter from the Scottish Refugee Council dated 30 August 2000. The writer stated that he had discussed matters with the petitioner, and that the petitioner had suggested some amendments to his earlier statement. In particular, the letter stated:
"Subsequent to the submission of Mr El Abas' [statement] it has been established that his father was not a member of the UMMA party but a paramilitary force which was sympathetic to the aims of the SPLA. This was established in discussion with his maternal uncle. Little more about the nature [of] this organization has been revealed to Mr El Abas. This has been established in discussion with his uncle following the drafting of the initial statement."
The letter also stated that the petitioner did not wish to serve in the civil war. The writer contended that the petitioner's refusal to serve in the war justified a claim for asylum, on the basis that his refusal was motivated by an implied political opinion (namely, a rejection of the legitimacy of the conflict in south Sudan), and he faced a possible death sentence as a punishment for his desertion.
[7]The petitioner was interviewed by an immigration officer, with the assistance of an interpreter, on 24 October 2000. The material questions and answers are recorded as follows:
"Q4.Why didn't you want to go to the south?
A.I don't believe in the trouble in the south. This is my father's philosophy. My father believes it is not right for the northern people to go and fight the southern people.
Q5.Who lives in the south?
A.I am from Kosti town which is not far from the south.
...
Q7.Why did you leave Sudan?
A.A few security officers came to my house. They keep asking about my father.
Q8.Why did you leave Sudan?
A.The pressure is too much for me. The pressure of investigating the issue of my father.
...
Q10.What do you fear in Sudan?
A.I was scared my family could be threatened.
Q.11.Why would they be threatened?
A.The pressure about documents.
Q12.Why would they be threatened?
A.When my father mentioned documents in his son's hands.
...
Q15.What do you fear should you return?
A.Anything could happen. I could be put in jail or tortured. Because there was an outstanding charge [of] the possession of my father's documents.
Q16.Why would they only now act regarding documents?
A.Because my father told security officers about these documents that I had in 1997.
Q17.What date?
A.I can't remember. The beginning of 1997.
Q18.Why did security forces do nothing between beginning '97 and time you left?
A.The truth is my father didn't tell the security officers that I keep these documents. It was only fabrication by security officers.
Q19.Why do you fear they would do something?
A.These visits became active and they keep questioning my family about me.
...
Q21.What are they asking your family?
A.They believe that I have these documents.
Q22.What are these documents?
A.Leaflets. About SPLA. They were frightened that these documents could be distributed in the country.
Q23.Why did they arrest your father?
A.They accused him of being involved with SPLA.
Q24.Was he in SPLA?
A.I don't know."
[8]The Secretary of State's letter refusing the application for asylum stated inter alia:
"4.You have claimed that you are a deserter from the army because you did not want to fight Christians in the South. The Secretary of State notes that you have given no ideological basis to explain your unwillingness to undertake military service and, on the evidence available, he does not consider that your unwillingness to do military service arose from a genuine political, religious or moral conviction... You have stated that you fear imprisonment or torture if you return to Sudan because you are a deserter, however the Secretary of State is aware that, in practice, army deserters and military service draft evaders are re-drafted into the army... [T]he Secretary of State is of the opinion that you would not be at risk of persecution if you were returned to Sudan. He considers that you have not provided any evidence to suggest that you would suffer a disproportionate punishment for desertion or draft evasion for one of the reasons stated in the 1951 United Nations Convention relating to the Status of Refugees. He considers that your claim to fear persecution based on your draft evasion lacks credibility.
5.The Secretary of State has taken into account your claim that the security forces arrested your father because he was a member of the UMMA party on 21 October 1995. You claimed that they came to your house 20 days after his arrest wanting documents that they claimed he had given you. You claimed that they regularly visited your house twice a month threatening to beat you if you did not give them the alleged documents. You then started your military training on 10 August 1997 and finally left Sudan on 15 October 1997. When interviewed on 24 October 2000, you stated that the reason you left Sudan was because the security officers came to your house asking about your father in later 1997 (question 7 refers). You also claimed that the security forces knew of the alleged document in early 1997, however they did not come to question you until later in 1997. The Secretary of State has noted the discrepancy between your original statement when you claimed they questioned you twice a month from November 1995 until you left in October 1997 and the account you gave during your asylum interview when you stated they questioned you in late 1997. He believes that these inconsistencies cast doubt on the credibility of your claim...
6Furthermore, your statement claimed that your father was a member of the UMMA party, however the Scottish Refugee Council's letter dated 30 August 2000 claimed that this was an error and your father was actually a member of a paramilitary force sympathetic to the aims of the Sudan People's Liberation Army (SPLA). When interviewed on 24 October 2000, you were asked whether your father was in the SPLA and you replied 'I don't know' (question 24 refers). The Secretary of State has taken this inconsistency...
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