Scottish Court of Session Decisions

Section 65 of the 1999 Act provides that a person who alleges that an authority (which means the Secretary of State, an immigration officer or a person responsible for the grant or refusal of entry clearance) has acted in breach of his human rights, may appeal to an adjudicator. Acting in breach of human rights means acting or failing to act in a way which is made unlawful by section 6 (1) of the Human Rights Act 1998 (that is, in a way which is incompatible with a Convention right). Convention rights include those set out in Article 3 of the European Convention on Human Rights of 1950. Article 3 of the 1950 Convention provides that no one shall be subjected to torture or to inhuman or degrading treatment or punishment. An appeal under section 65 may therefore be referred to (as it was referred to by the Adjudicator in the present case) as a "Human Rights Appeal under Article 3 of the 1950 Convention". Section 69 of the 1999 Act provides that a person who is refused leave to enter the United Kingdom may appeal on the ground that his removal in consequence of that refusal would be contrary to the Convention Relating to the Status of Refugees of 1951 and the 1967 Protocol to that Convention. A refugee, in terms of the 1951 Convention as amended by the Protocol, is any person who, owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country. The 1951 Convention imposes certain duties on receiving states party to the Convention in relation to a person who is a refugee. Among these duties is that set out in Article 33.1 which is in these terms:

An appeal under section 69 may therefore be referred to (as it was referred to by the Adjudicator in the present case) as an "Asylum Appeal under the 1951 Convention".

Insofar as what appears in paragraph 2.3.5 advances the argument, it appears to me it lies in its recognition that while a decision on credibility must be reached rationally, in doing so the decision maker is entitled to draw on his common sense and his ability, as a practical and informed person, to identify what is or is not plausible. On that basis an account may be found to be inherently implausible. In relation to element of the first petitioner's account that is discussed in paragraph 19 of the Adjudicator's Determination and Reasons, I consider that the Adjudicator did no more than that. For the reasons that he gives, his conclusion is one which a reasonable adjudicator was entitled to come to. That Mr Sutherland has found a story (which I take to be true) in The Age that has some features in common with the first petitioner's account (and some which are not in common) is, in my opinion, neither here nor there.

I do not see this reasoning to be based on any evidence. I have concluded that the Adjudicator was entitled to find the paragraph 19 element in the first petitioner's account to be incredible because of its inherent implausibility taken with the first petitioner's inability to give any explanation that might make it less implausible when questioned. In so doing I have seen there to have been an important role for the Adjudicator's common sense as a rational, practical and informed person when it comes to assessing an account such as that discussed in paragraph 19. I see the account discussed in paragraph 20 to be rather different. It relates to the conduct of the Sudanese security forces. The Adjudicator accepted the description of the situation in Sudan which is contained in the Country Assessment by the United Kingdom Country Information and Policy Unit (referred to in the Determination and Reasons as the "CIPU Report"). That includes the information that there are cases of torture, harassment, arbitrary arrest, detention and killing by the security forces, associated with discrimination against Christians and other minorities. I accept that the Adjudicator is a specialist decision maker with the expertise that goes with that status. Nevertheless, I consider that the common sense, rationality, practical experience and general information to be imputed to a reasonable adjudicator are of only very limited use when it comes to making judgements about the likely behaviour of the Sudanese security forces, given the terms of CIPU report. What is said by the authors in paragraph 12.29 of Macdonald and Webber, which was cited by Mr Sutherland, appears to me to be apposite. Miss Carmichael submitted that it is open to an adjudicator to come to a view as to the internal coherence of an account of events, even events occurring in "a state or situation in which persecution is an established fact of life", to use the language of the Court in Asif supra at 189A, and to conclude that the account just does not make sense. That, she said, is what the Adjudicator had done here. In the context of the evidence that had been given by the first petitioner that was an entirely proper approach. I do not dispute the generality of Miss Carmichael's submission but I cannot avoid the conclusion that, for all that appears in his reasoning, what the Adjudicator did was to indulge in speculation as to what Sudanese soldiers would or would not do in the circumstances revealed by the first petitioner's account. Without more information I do not consider that it can be said that there is anything inherently implausible or unlikely about the first petitioner's account. Miss Carmichael identified the issue, correctly in my opinion, as being whether the Adjudicator's reasoning could be supported. As far as paragraph 20 is concerned my judgement is that it cannot.