Boum v. Secretary Of State For The Home Department [2006] ScotCS CSOH

Opinion of Lord Macphail

in the petition of

Veronique Angele Boum (AP) [Petitioner] v The Secretary of State for the Home Department [Respondent]

for

Judicial Review of a decision of an Immigration Appeal Adjudicator and for a decision of the Immigration Appeal Tribunal

[Date]

This is an application for the judicial review of two decisions. The first concerns a decision of an Immigration Appeal Adjudicator ('the Adjudicator') refusing an appeal by Ms. Boum against the refusal by the Secretary of State for the Home Department of her application for asylum. The second is a decision by the Immigration Appeal Tribunal refusing an application by Ms. Boum for an extension of the time limit in which to appeal the decision of the Adjudicator.

The petitioner, Ms. Boum, is a national of Cameroon. She entered the United Kingdom in 2002 and claimed asylum on the ground of persecution because of her religious beliefs (she is a Roman Catholic) and her political opinion (she asserted that she was a member of an opposition party, the Social Democratic Front (SDF)). Her application for asylum was refused by the Secretary of State for the Home Department, a decision which was appealed to an Immigration Appeal Adjudicator. The Adjudicator refused the appeal, and accordingly Ms. Boum's application for leave to appeal that decision should have been made not later than 10 days after the she had received written notice of the Adjudicator's determination. In the present case there was a delay in the application to appeal for a period of eight months. The Immigration Appeal Tribunal refused to extend the period of time to appeal the Adjudicator's decision.

At the outset there arose a question as to the competency of the remedies sought by Ms. Boum, and consequently the decisions sought to be reviewed. Counsel for Ms. Boum submitted that what was important was the decision of the Adjudicator. The Secretary of State for the Home Department submitted that the only decision that could relevantly be brought under review was the decision of the Tribunal. This was because the court in its supervisory jurisdiction should do no more that what was necessary to put matters right. Accordingly it should not reduce the determination of the Adjudicator. Lord Macphail agreed with the submissions of The Secretary of State for the Home Department and stated that in his decision he was persuaded by the reasoning and conclusions of the Temporary Judge in the case of Mahmood v. Secretary of State for the Home Department 2005 CSOH 52 [paras. 65-75]. Therefore the only remedy Ms. Boum may seek is the reduction of the decision of the Tribunal, and it is inappropriate to pronounce any order requiring the Tribunal to consider the application.

Accordingly, the decision which falls to be reviewed is the decision of the Tribunal in refusing the application for extension of time for leave to appeal the decision of the Adjudicator. The only decision to be relevantly brought under review in this process is that of the Tribunal.

Summary of Lord Macphail's Opinion in relation to the Tribunal's decision:

· An initial difficulty arose in the assessment of the Tribunal's decision in that the Tribunal applied the wrong rules in consideration of whether to grant the extension of time. Instead of Rule 18(3) of the 2000 Rules, it applied rule 16(2) of the 2003 Rules. Lord Macphail held that the change in wording neither shifted the onus nor imposed a heavier onus on the appellant, and accordingly there was no material difference between the application of the two rules. (para. [11]).

· A party seeking a substantial extension of time in which to appeal must show that the appeal would have a real prospect of success if permission is granted (Secretary of State for the Home Department v. Makke [2005] EWCA Civ 176, [2005] Imm AR 231 at para. 24). As stated, it was immaterial that the Tribunal applied the wrong test, the correct issue was whether it was satisfied that because of the special circumstances it was just for the time limit to be extended. In order to make that decision, the Tribunal had to look at all the material before it, including material which could be said to relate to 'the merits', and reach a view as to what weight, if any should be attached to the material (para. [14]). It was also the Tribunal's duty to apply any readily discernible and obvious point in the petitioner's favour even if it had not been taken on her behalf, but to concern itself 'only with the clear, the obvious, with questions that cry out for an answer'.([para. [13] )

· The Tribunal stated two reasons for its decision to refuse the application. The first of these was delay. Ms. Boum's present solicitors wrote to the Tribunal explaining there had been a change of agency, and that her previous solicitors had failed to apply for leave to appeal to the Tribunal despite her instructions to do so. The Tribunal stated that as there was no evidence that these previous solicitors had ever taken responsibility for failing to act on Ms. Boum's instructions, or even that they had been asked about the matter, for this reason they would refuse the application. Lord Macphail held that this was an erroneous approach to the question, that the explanation given by the present solicitors was straightforward and without inconsistencies. In such circumstances it was not reasonable to look for corroborative material. (paras. [14] to [16])

· The second reason for the Tribunal's decision to refuse the application concerned the merits of the appeal. Lord Macphail held that the Tribunal's approach to the determination of risk of persecution on both religious (paras. [24] to [29]) and political grounds (paras. [30] to [39]) was correct. Moreover, the reasons given by the Adjudicator were sufficient.

· In these circumstances Lord Macphail held that the Tribunal was entitled to reach its conclusion that the grounds of appeal lacked substantive merit, and to find that it was not satisfied that because of special circumstances it was just for the time limit to be extended. (para. [40]).

NOTE

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OUTER HOUSE, COURT OF SESSION

[2006] CSOH 111

P78/05

OPINION OF LORD MACPHAIL

in the Petition of

VERONIQUE ANGELE BOUM (AP)

Petitioner;

against

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT

Respondent:

for

Judicial Review of a decision of an Immigration Appeal Adjudicator and for a decision of the Immigration Appeal Tribunal

________________

Petitioner: Bovey, Q.C., Blair; Drummond Miller W.S.

Respondent: A.J. Carmichael; Office of the Solicitor to the Advocate General

18 July 2006

Introduction

[1] This is an application for judicial review of two decisions: a decision of an Immigration Appeal Adjudicator refusing an appeal by the petitioner against the refusal by the respondent of her application for asylum; and a decision by the Immigration Appeal Tribunal refusing an application by the petitioner for extension of time for leave to appeal against the decision of the Adjudicator.

Procedure

[2] There arises at the outset a question as to the competency of the remedies sought by the petitioner. These are specified in statement of fact 4 of the petition in the following terms:

"(1) declarator that : -

(i) the determination of the Adjudicator was unlawful et separatim unreasonable;

(ii) the determination of the Tribunal to refuse to extend the time for the application for leave to appeal was unlawful et separatim unreasonable;

(2) production and reduction of the said determinations;

(3) an order requiring the Tribunal to consider the application for late leave to appeal on its substantive merits;

(4) the expenses of the petition; and

(5) such other order as to the Court may seem just and reasonable in the circumstances of the case."

The petitioner's pleas-in-law are as follows:

"(1) The determination of the Immigration Appeal Adjudicator being unlawful et separatim unreasonable et separatim unfair, declarator and reduction should be granted.

(2) Esto the determination of the Immigration Appeal Adjudicator should not be reduced, the determination of the Immigration Appeal Tribunal to refuse to extend the time for leave to appeal being unlawful et separatim unreasonable, declarator and reduction should be granted.

(3) The determination of the Immigration Appeal Tribunal being unlawful et separatim unreasonable they should be ordered to extend the application for time to consider the application for leave to appeal on its merits."

[3] In answer 3 the respondent avers:

". . . Insofar as the present application seeks declarator and reduction in respect of the Adjudicator's determination it is irrelevant. Reference is made to Irzikevikius v Secretary of State for the Home Department, Lord Macfadyen, 14 July 1999. Further and in any event it is not competent or necessary for the Court to grant the order sought at statement of fact 4(3). It is not open to this Court to usurp the function of the Tribunal in determining whether the application for leave to appeal should be allowed to be brought out of time. Reference is made to Mohammed Noor v Secretary of State for the Home Department, Lord Macfadyen, 14 June 2002. If the petitioner succeeds in persuading the Court that the Tribunal has erred and that she is entitled to a remedy in respect of that error, reduction of the Tribunal's determination is the appropriate remedy. . . "

The respondent's pleas-in-law include the following:

"(1) The petitioner's averments being irrelevant et separatim lacking in specification, the petition should be dismissed.

(2) The order sought at statement of fact 4(3) being incompetent should be refused."

[4] In support of the petitioner's choice of remedies her senior counsel submitted that what mattered here was the decision of the Adjudicator. If I were not with him in his analysis of the Adjudicator's decision, there would be nothing to say about the decision of the Tribunal. It was therefore a little curious that there should be a body of judicial thought which said that where that was the case, the Court exercising its supervisory jurisdiction should not reduce the determination of the Adjudicator. It was understandable that the Court should do the least that was necessary to set the case back on track. But where the Court had reached the view that the Adjudicator's decision was fundamentally flawed, it was odd that the Court should remit the matter to an inferior tribunal without any form of instruction as to its disposal. The result had been, in at least one case where the Court had reduced only the Tribunal's refusal of leave, the Tribunal had again refused leave, which had necessitated a second petition for judicial review that had resulted in the Court's reducing the Adjudicator's determination. It was wholly inappropriate for a Supreme Court to seek to persuade an inferior court of the rightness of its view. In the present case the Court should sustain the petitioner's first plea-in-law, which failing, the second, which failing, the third.

[5] The respondent's counsel submitted that the only decision that was relevantly brought under review in this process was that of the Tribunal. The nature of the Court's supervisory jurisdiction over the decisions of inferior tribunals was such that its role was to do no more than was necessary to put matters right. Accordingly the Court should not reduce the determination of the Adjudicator. If the Court were to reduce the determination of the Tribunal, any action would be a matter for its statutory successor. It would have the Opinion of the Court, and it would be difficult for it to go wrong. The relevant authorities had been the subject of cogent and compelling analysis in Mahmood v Secretary of State for the Home Department, [2005] CSOH 52, a decision of Mr R F Macdonald QC (as he then was) sitting as a Temporary Judge.

[6] In my opinion the submissions for the respondent are correct. The argument addressed to me by the petitioner's counsel is essentially the same as that which he addressed to the Temporary Judge in Mahmood. I am entirely persuaded by the reasoning and conclusions of the Temporary Judge. It would be superfluous to attempt to repeat his careful review of the authorities in paragraphs 65 to 75 of his opinion. It will suffice to quote the following dicta from paragraph 74:

"Parliament has conferred upon the IAT an appellate jurisdiction over determinations of Adjudicators, and in the exercise of that jurisdiction the IAT has the wide powers referred to above. It is not for the Court of Session, in the purported exercise of the supervisory jurisdiction, to exercise the statutory appellate jurisdiction of the IAT. In my opinion, where there has been a determination by an Adjudicator followed by a refusal by the IAT of leave to appeal against that determination, then the Court should reduce both determinations only in a case where, if only the refusal by the IAT of leave to appeal were reduced, it would for some reason not be open to the IAT to correct an error in the Adjudicator's decision. As at present advised I find it difficult to envisage how such a situation could arise."

I also respectfully agree with the following observation by the Temporary Judge at paragraph 67:

"I would mention in passing that I see no point whatsoever in seeking declarator that a decision was unreasonable and wrong in law in addition to reduction of the decision in question. In my view such a declarator is futile and ought not to be pronounced: see the observations of Lord Fraser in Brown v Hamilton District Council 1982 SC (HL) 1 at p 46."

[7] I therefore consider that, of the remedies listed in statement of fact 4(1) to 4(3), the only remedy the petitioner may competently seek is that of reduction of the decision of the Tribunal. It is inappropriate to pronounce any declarator or any order requiring the Tribunal to consider the application.

The decision of the Tribunal

[8] I now examine the powers of the Tribunal and the issue it had to decide.

[9] Part III of Schedule 4 to the Immigration and Asylum Act 1999 (the 1999 Act) makes provision as to the determination of appeals. Paragraph 22 deals with appeals to the Immigration Appeal Tribunal. It provides in part:

"(1) Subject to any requirement of rules made under paragraph 3 as to leave to appeal, any party to an appeal, other than an appeal under section 71, to an Adjudicator may, if dissatisfied with his determination, appeal to the Immigration Appeal Tribunal.

(2) The Tribunal may affirm the determination or make any other determination which the Adjudicator could have made."

[10] The procedure to be followed for appeals made under the provisions of Part IV of the 1999 Act used to be prescribed by the Immigration and Asylum Appeals (Procedure) Rules 2000 (SI 2000, No 2333) (the 2000 Rules). The 2000 Rules were revoked by rule 60 of the Immigration and Asylum Appeals (Procedure) Rules 2003 (SI 2003, No 652) (the 2003 Rules) which came into force on 1 April 2003. The 2003 Rules prescribe the procedure for, amongst other things, appeals to the Immigration Appeal Tribunal under Part 5 of the Nationality, Immigration and Asylum Act 2002 which also came into force on 1 April 2003. Rule 61 of the 2003 Rules, however, contains transitional provisions which include the following:

"(5) In relation to an application for permission to appeal to the Tribunal against an Adjudicator's determination made before 1st April 2003 -

(a) rule 16 of these Rules shall not apply; and

(b) rules 18(2), 18(3) and 19 of the 2000 Rules shall continue to apply as if those Rules had not been revoked."

In the present case the Adjudicator's determination was made on 28 March 2003. Accordingly it is the above provisions of the 2000 Rules which apply. The material provisions are those of rule 18(2) and (3), which are in these terms:

"(2) An application for leave to appeal shall be made not later than 10 days, or in the case of an application made from outside the United Kingdom, 28 days, after the appellant has received written notice of the determination against which he wishes to appeal.

(3) A time limit set out in paragraph (2) may be extended by the Tribunal where it is satisfied that because of special circumstances, it is just for the time limit to be extended."

[11] An initial difficulty in the present case is that the Tribunal applied the wrong rule. Instead of rule 18(3) of the 2000 Rules, it applied rule 16(2) of the 2003 Rules, which provides:

"(2) The Tribunal may extend the time limits in paragraph (1) if it is satisfied that by reason of special circumstances it would be unjust not to do so."

It is clear that that was the rule which the Tribunal had in mind because paragraph 3 of the reasons for decision, given by the Vice President, states:

"3. There are no special circumstances making it unjust not to extend time and I decline to do so. Accordingly, there is no valid application before the Tribunal."

Counsel for the petitioner argued that this mistake was of importance because there was a material difference between the two rules. The change of wording had shifted the onus, or imposed a heavier onus on the appellant. I am unable to accept this submission. While the 2000 Rule may appear positively to require the doing of justice and the 2003 Rule to enjoin more tepidly the avoidance of injustice, I cannot identify any substantial difference between a situation in which it would be just for a time limit to be extended and one in which it would be unjust for it not to be extended. If it is just to take one course, it must be unjust to take the opposite course. It seems difficult to conceive of a position in which that which is not just is not unjust. There is no spectrum between justice and injustice with intermediate degrees such as "not very just" or "not particularly unjust".

[12] Further provisions of the 2003 Rules apply in the present case. Rule 18 makes provision as to the determination of an application for permission to appeal to the Tribunal. It states in part:

"(2) The Tribunal is not required to consider any grounds of appeal other than those included in the application.

(4) The Tribunal may grant permission to appeal only if it is satisfied

that -

(a) the appeal would have a real prospect of success; or

(b) there is some other compelling reason why the appeal should be heard."

These provisions correspond to Rule 18(6) and (7) of the 2000 Rules.

[13] Parties were agreed that where there was a readily discernible and obvious point in an appellant's favour, the Tribunal should apply it even if it had not been taken on his or her behalf. Both counsel cited not only the dictum of Brooke LJ to that effect in R v Secretary of State for the Home Department, ex parte Robinson [1998] QB 929 at paragraph 39 but also the comments by Davis J in R (on the application of Naing) v Secretary of State for the Home Department [2003] EWHC 771 at paragraph 35 where his Lordship observed that what Brooke LJ plainly was saying was that not only must the point be obvious, carrying with it the connotation that it had a strong prospect of success if argued, but also that it is readily discernible: and that is so both before the Adjudicator and "similarly" before the IAT. His Lordship further observed (at paragraph 36) that although Robinson had been dealing with a case of an obvious point of law, there seemed no reason why the like approach should not be available in cases of errors of fact (R v Secretary of State for the Home Department ex parte Abdul Aziz Kolcak [2001] Imm AR 666 at paragraphs 11, 12). In Elabas, Petitioner (Outer House, 2 July 2004) Lord Reed agreed with the observations of Lord Penrose in Parminder Singh v Secretary of State for the Home Department (10 July 1998) that in considering whether the IAT has erred in relation to matters of fact, or to inferences properly to be drawn from facts and circumstances, "one is concerned only with the clear, the obvious, with questions that cry out for answer."

Delay

[14] In the present case the application for leave to appeal had been lodged out of time. It should have been made not later than 10 days after the appellant had received written notice of the Adjudicator's determination. The determination was made on 28 March 2003 but the application for leave to appeal was not made until 27 November 2003, some eight months later. A party who is seeking a substantial extension of time in which to appeal must show that the appeal would have a real prospect of success if permission is granted (Secretary of State for the Home Department v Makke [2005] EWCA Civ 176, [2005] Imm AR 231 at paragraph 24). The question the Tribunal had to decide was whether it was satisfied that because of special circumstances it was just for the time limit to be extended. In order to make that decision, the Tribunal had to look at all the material before it, including material which could be said to relate to "the merits", and reach a view as to what weight, if any, should be attached to such material (R v Immigration Appeal Tribunal, ex parte V M Mehta [1976] Imm AR 174, Megaw LJ at 182-183; Mohammadi, Petitioner 2004 SCLR 612, Lord Hamilton at paragraph 12).

[15] As to the reason for the long delay, the petitioner's present solicitors wrote a letter to the IAT dated 27 November 2003 (no. 6/12 of process) explaining that there had been a change of agency. The petitioner had instructed other solicitors to apply for leave to appeal to the Tribunal, but they had failed to do so. The petitioner was unaware of their failure until she was visited by officers of the Scottish Enforcement Unit who had alerted her to the fact. She then instructed her present solicitors on 20 October 2003. They had written to the other solicitors on the same day with her mandate for the papers. These did not come to hand until 24 November 2003, and the application for leave was sent with the letter of 27 November 2003.

[16] In its determination of the application for permission to appeal (no. 6/8 of process) the Tribunal summarised that explanation and said:

"There is, however, nothing to show that these previous agents have ever accepted responsibility for any failure to act on the claimant's instructions, or that they have ever been asked about the matter."

That was the first of the Tribunal's two reasons for its decision to refuse the application. The respondent's counsel did not support it, and in my opinion it discloses an erroneous approach to the question. The explanation given by the solicitors was straightforward and did not contain any inconsistencies or implausible matter. In these circumstances it was not, in my view, reasonable to require any corroborative material.

Merits

[17] The Tribunal's second reason was concerned with the merits of the appeal. The petitioner is a national of Cameroon. She entered the United Kingdom in 2002 and claimed asylum on the ground of persecution because of her religious belief (she is a Roman Catholic) and her political opinion (she was a member of an opposition party, the Social Democratic Front (SDF)). She also claimed that her removal to Cameroon would lead the United Kingdom to be in breach of its obligations under the European Convention of Human Rights. The Adjudicator dismissed her appeal. In the grounds of appeal submitted to the Tribunal it is maintained that the Adjudicator erred in fact and in law. In its reasons for its decision the Tribunal said:

"2. The grounds in any event lack substantive merit. The Adjudicator at paragraphs 23 to 26 deals with the issue of Roman Catholicism in terms that disclose no legal error. As for the SDF issue, the grounds are no more than a series of disagreements with findings that the Adjudicator was entitled to make on the evidence (see paragraphs 27 to 32)."

[18] The Tribunal then went on to state its conclusion in the terms I have already quoted:

"3. There are no special circumstances making it unjust not to extend time and I decline to do so. Accordingly, there is no valid application before the Tribunal."

I have expressed the view that it is immaterial that the Tribunal applied the wrong test. The correct issue was whether the Tribunal was satisfied that because of special circumstances it was just for the time limit to be extended. I shall proceed on the basis that the Tribunal decided that it was not so satisfied. The question for this Court is whether that decision is vulnerable to judicial review on the grounds founded on by the petitioner.

[19] Before examining that question it is necessary to notice that the submissions of the petitioner's counsel were focused primarily on the determination of the Adjudicator, in accordance with counsel's argument that what mattered in this case was the decision of the Adjudicator. I have decided, however, that the only decision that is relevantly brought under review in this process is that of the Tribunal. I have noted that in order to make that decision, the Tribunal had to look at all the material before it, including material which could be said to relate to the merits, and reach a view as to what weight, if any, should be attached to such material. The primary material before the Tribunal comprised the determination of the Adjudicator (no. 6/5 of process) and the grounds of appeal (no.6/2 of process). It was also the Tribunal's duty to apply any readily discernible and obvious point in the petitioner's favour even if it had not been taken on her behalf, but to concern itself "only with the clear, the obvious, with questions that cry out for answer". The petitioner's counsel, however, was, to some extent at least, concerned to advance criticisms of the Adjudicator's determination which had not been made in the grounds of appeal and, as I shall explain, were not readily discernible and obvious. He also made certain submissions that appeared to be at variance with the grounds of appeal. I shall try, however, to do justice to counsel's argument while addressing what I conceive to be the correct question.

[20] Counsel for the petitioner stated that the case was concerned with two issues: the general approach to the determination of the risk of persecution where more than one ground was pled; and recent decisions on the requirement for reasons by an Adjudicator. Addressing the latter point, counsel submitted that if the reasons were not clear, one could not tell if the right approach had been taken. Counsel cited Ravichandran v Home Secretary [1996] Imm AR 97; R v Immigration Appeal Tribunal, ex p Shah [1999] 2 AC 629, Lord Hoffman at 653-654; D D v Secretary of State for the Home Department 2005 SCIH 37, 2005 1 SC 415; Koca v Secretary of State for the Home Department 2005 SCIH 41, 2005 1 SC 487; Singh v Secretary of State for the Home Department 2000 SC 219; and Januzi v Secretary of State for the Home Department [2006] UKHL 5, [2006] 2 WLR 397. Counsel for the respondent referred to R (Iran) v Secretary of State for the Home Department [2005] Imm AR 535.

[21] On this issue I consider that it is sufficient to notice that in Singh the First Division observed (at pages 222-223) that the proper and well established test for assessing the adequacy and sufficiency of reasons given by an administrative tribunal had been summarised in the following terms by Lord President Emslie in Wordie Property Co Ltd v Secretary of State for Scotland 1984 SLT 345 at 348:

"The decision must, in short, leave the informed reader and the court in no real and substantial doubt as to what the reasons for it were and what were the material considerations in reaching it."

The Court also said:

"[ . . . ] nothing could be more destructive of the efficient disposal of immigration appeals than the notion that the Adjudicator and the tribunal are under an obligation to carry through a mechanical process of narration of the evidence, analysis of it into classes, and an explanation factor by factor of the relevance or irrelevance, credibility and reliability or otherwise of it."

[22] I now discuss the Adjudicator's reasons for his determination, the grounds of appeal to the Tribunal and the parties' submissions.

[23] In his determination (no. 6/5 of process) the Adjudicator directed himself as to the matters the petitioner had to prove, and the burden and standard of proof (paragraphs 15 to 18). The only criticisms made of these directions was that they were "standard" and included an unnecessary reference to Article 2 of the ECHR. But if directions are accurate, as these were implicitly conceded to be, it is nothing to the purpose that they are "standard", or in conventional terms. The reference to Article 2 is explained by the fact that that article was founded on in the appellant's written skeleton argument (no. 6/7 of process) at paragraphs 36 to 39. The Adjudicator then set out in some detail relevant information about political and religious affairs in Cameroon from the assessment by the Country Information and Policy Unit (no. 6/14 of process) and from the report by the Medical Foundation for the Care of Victims of Torture (no. 6/15 of process). He explained (at paragraph 22 of his determination) that it was against that background that the petitioner's evidence had to be assessed.

Persecution for reasons of religion

[24] When considering the merits of the application, the Tribunal noted how the Adjudicator had dealt with the two issues of religious persecution and political persecution. As to religious persecution, the petitioner's case was that because she was a Roman Catholic, she and her children had twice been forcibly ejected from their home by Muslims. On the first occasion, in 1997, she had pressurised the authorities to return her house to her, and succeeded. On the second occasion, in 1999, her house had been returned to her through the action of the local Governor. Thereafter, however, she was subjected to a campaign of threats by local people who wanted her to leave her home. She left Cameroon in 2002.

[25] When considering her claim to fear persecution on religious grounds (at paragraphs 25 and 26 of his determination) the Adjudicator accepted that there was a reasonable chance that the petitioner might have been discriminated against, but he took into account the fact that she had been able to recover her home relatively easily and he concluded that the 1997 and 1999 ejections were not sufficient to amount to persecution. Even if he had held that they did, the fact that the petitioner had remained there for a further three years, living with her partner, raising her children and conducting business, suggested to him that she did not have any real fear of staying there. He went on to note that the Christian community was relatively large and it seemed unlikely that she would be in such a minority that she would realistically be persecuted or singled out for such treatment by reason of her Catholicism.

[26] The petitioner's grounds of appeal submitted with her application to the Tribunal dealt with the matter of religious persecution as follows:

"1. The appellant is a Catholic by faith. She has been persecuted and harassed by Muslim people in Cameroon because she is a Catholic. The evidence adduced on behalf of the appellant is adequate to support the maltreatment she suffered at the hands of the Muslims. The objective evidence submitted to the Adjudicator did not prove that there is societal discrimination by Muslims against adherents to traditional indigenous religions. Ref: Medical Foundation for the care of victims of torture. The appellant's account of maltreatment at the hands of the Muslims is therefore plausible. The individual events constituting the maltreatment may not be sufficient to form a basis of persecution but cumulatively they clearly indicate significant risk of persecution to the appellant in the light of Cameroon authorities' inability to deal effectively with the maltreatment. The Adjudicator has therefore erred in fact and call [sic] the appellant has failed to demonstrate significant risk of persecution. The Adjudicator has failed to give fair assessment of all the evidence submitted on behalf of the appellant.

2. The Adjudicator's view that appellant will not be persecuted because the Christian community is relatively big is not cogent. The size of the Christian community is not necessarily a guarantee that none of the Christians will be persecuted. The objective evidence also confirm[s] that security forces have committed human rights abuses."

[27] The Tribunal found, in paragraph 2 of its reasons:

"2. The grounds in any event lack substantive merit. The Adjudicator at paragraphs 23 to 26 deals with the issue of Roman Catholicism in terms that disclose no legal error."

[28] Counsel for the petitioner made a number of submissions on the topic of religious persecution which appeared to me to fail for reasons given by counsel for the respondent. The petitioner's counsel referred me to the averments in statement 23 of the petition and to the publication by the Medical Foundation for the Care of Victims of Torture (no. 6/15 of process) which is mentioned in the grounds of appeal. The publication reports Muslim discrimination against Christians in certain areas of Cameroon. The Adjudicator expressly accepted that such discrimination occurred. He clearly found, however, that the petitioner would not be at risk of persecution on religious grounds, and gave reasons for that finding. Counsel also said that the Adjudicator had failed to understand the concept of "fear", which meant the objective apprehension of persecution (James C Hathaway, The Law of Refugee Status, page 66; Gashi v Secretary of State for the Home Department [1997] INLR 96). However, the subjective element of fear must also be present (Macdonald and Webber edd, Immigration Law and Practice in the United Kingdom (6th edn) page 685, paragraph 12.22). It appears to me that in view of the petitioner's continuing residence in Cameroon for three years after the ejection of 1999, the Tribunal was justified in taking the view that the Adjudicator had been entitled to find, on the hypothetical basis that the ejections of 1997 and 1999 had amounted to persecution, that she did not have such a fear. The petitioner's counsel was, I consider, correct in submitting that it was erroneous for the Adjudicator to say that it was unlikely that the petitioner would be "singled out" (Adan v Secretary of State for the Home Department [1999] 1 AC 293 at 310); but that does not affect the thrust of his finding that she would not be persecuted. The petitioner's counsel also founded on a reference by the Adjudicator to the fact that after each ejection from her house she had been able to get it back "without even requiring to take the matter through the courts". Counsel said that it was clear that the Adjudicator had failed to understand, from the background material, that going to court in Cameroon would have been no earthly good. I consider, however, that the point the Adjudicator is making is that the petitioner was able to have her house returned to her without resorting to legal proceedings: in 1997 she recovered possession after threatening legal proceedings, and in 1999 after going to see the Governor. In any event this point was not raised in the grounds of appeal and in my view there was no obvious difficulty that cried out for answer.

[29] The petitioner's counsel referred to Professor Hathaway's categorisation of human rights and the cases in which it had been approved, which are cited in H S (Homosexuals: Minors, Risk on Return) Iran [2005] UKAIT00120 at paragraph 19, and submitted that the forcible evictions of the petitioner had been a breach of category 2 rights (Article 8) which would constitute persecution. That case is very different on its facts from the present. Successful reliance on Article 8 would require the presentation of a strong case (R (Ullah) v Special Adjudicator [2004] UKHL 26, [2004] 2 AC 323; R (Razgar) v Secretary of State for the Home Department [2004] UKHL 27, [2004] 2 AC 368). It is clear from Demirkaya v Secretary of State for the Home Department [1999] INLR 441 at 447-448 that it was for the Adjudicator to decide whether the facts as he found them amounted to persecution and that he cannot be held to have erred in law unless his decision was one that no reasonable Adjudicator could have reached. The petitioner's counsel also referred to the speech of Lord Hope of Craighead in Januzi. He further submitted that it was important for an Adjudicator not to view an applicant's situation through Scottish eyes, and he referred to the extract from Lord Bingham's article in (1985) 38 Current Legal Problems at page 14 which is cited in Kasolo (IAT, 1 April 1996). I have no difficulty in accepting that that is so, but it appears to me that the Tribunal was well entitled to conclude that there was no real prospect of a successful challenge of the Adjudicator's conclusion relative to persecution on religious grounds.

Persecution for reasons of political opinion

[30] The petitioner also claimed asylum on the ground of persecution because of her political opinion. Here, her case was that she had been an active member of an opposition party, the Social Democratic Front (the SDF), which she had joined in 1996. One of her tasks was to make election cards which electors needed in order to vote. In 2002 there was a shortfall in the number of cards produced. The SDF accused the petitioner and her partner of having betrayed the SDF and working for the Government. On or about 23 or 24 June 2002 some eight armed men raided her house, cut the power and phone lines, demanded to know where her partner was and where all their money was kept, and demanded that she turn over "corrupt money". They stole as many of her belongings as they could take and told her that they would return again and again until she gave them the information they wanted. They threatened her and her children with rape if she did not talk. She went to the police. They took a statement from her but did not take any further action. She did not go back home but went into hiding. She decided to leave Cameroon on or about 28 or 29 June 2002 and did so on 10 August 2002.

[31] The Adjudicator recorded that the petitioner feared persecution for her involvement with voting lists and the blame attached to her for the non-issue of ballot papers. Her case was that she would have imputed to her a political opinion that she was acting against the SDF, which would then bring her into conflict with SDF members (paragraph 23). At the hearing before me her counsel accepted that that was a correct understanding of this branch of her case.

[32] The Adjudicator decided that he was unable to accept the petitioner's evidence about this matter. He gave his reasons in these terms:

"27. [ . . . ] There is a clear conflict between the background material regarding the conduct and structure of the party and the appellant's evidence. The appellant stated that although she could have joined the women's section of the party, she chose not to do so; the background information suggests that no women's section exists. The appellant indicated that her partner was a prominent member of the youth section and she said that he 'had his own group'; the background information states that no youth section existed for the party. The appellant says that, to join the party, she never had to pay a membership fee or any contribution; the background information states that there is a joining fee and a monthly subscription.

28. The account given by the appellant in relation to her tasks in making up lists of voters is, although difficult to comprehend from a United Kingdom perspective, I nevertheless find it to be plausible that she should have been so employed, had she been a party member. In view of the discrepancies that I have outlined in the foregoing paragraph, however, I have difficulty in accepting that she was indeed an SDF party member or, if she was, that she had the profile and the critical responsibility of compiling lists of potential voters, that she now claims. I am drawn to the view that she was not a member of the SDF and, logically, that she was not involved in making up the lists of voters. Having reached that view, I would also be bound to reach the view that everything that flows from that stage of her account must be incorrect.

29. Even if I were to have accepted that she was a member of the SDF and that she had been involved in making up lists of potential voters, her claim is that she was attacked in June 2002 at her home by 8 men who were looking for money. By her own account, they were masked and she did not know who they were. It was submitted for the appellant that she had suggested that they could have been members of the security forces, but I do not accept that contention. I can find nothing in the evidence to suggest that the appellant's account has ever been that she was targeted by the state by dint of her SDF membership. Her evidence was quite clear that the men who invaded her home were looking for money. They did not try to evict her; they did not arrest her; they did not torture her; and they did not accuse her of any complicity with the government. As the appellant herself stated, she did not know who they were or where they were from and all they were looking for was money. Even taking this account at its highest, I cannot find that this discloses any reason that is consistent with the terms of the convention definition of a refugee."

In paragraph 32 he added:

"Even although I accept [read 'Even if I were to accept': see paragraph 38 below] that she was raided by 8 armed men in June 2002 - something which I have rejected, for the reasons given above - I do not consider it plausible that the appellant should have reported this matter to the police and then fled without following it up. It is implausible that she would have had the tenacity to remain in her house following the incident in 1999 - when she was evicted by 20 men - and then to flee in 2002. In her account, she was in receipt of threats in 1999, and yet she went to the governor and she recovered possession of her house. It is implausible that a person such as the appellant should not have exhibited more tenacity to identify what steps the police had or had not taken. I also believe the point made for the respondent that the appellant had available to her partner, whom she said was a well known, militant party member whose help she could have enlisted if she feared the SDF."

[33] The grounds of appeal submitted to the Tribunal (no. 6/2 of process) made the following criticisms:

"2. [ . . . ] The appellant's husband was a prominent member of SDF. It is wrong to assume that the husband will be able to use his position to stop the maltreatment considering current situation in Cameroon. It is to be remembered that democracy and rule of law does [not] freely operate at international level in Cameroon. Therefore the fact that notwithstanding the appellant's husband's prominent position in SDF, he was not able to use his influence to stop the maltreatment does not necessarily constitute a negative credibility on the appellant. The appellant in her evidence made it clear that although she did assist in preparing voting list she was not heavily involved in the activities of the SDF. It is therefore not totally a surprise that she did not seem to know a lot about SDF. The appellant's inability to give accurate information about SDF does not constitute a significant adverse credibility. There is a reasonable inference that in addition to the maltreatment of the appellant at the hands of the Muslims on a balance of probability, she may well have been targeted because of the husband's prominent position in the SDF. The Adjudicator has erred in fact and law.

3. The evidence adduced on behalf of the appellant fairly and reasonably assessed reaches the required minimum severity in order for Article 3 ECHR to be engaged. The Adjudicator has erred in law."

[34] The view of the Tribunal, which I have already quoted, was:

"As for the SDF issue, the grounds are no more than a series of disagreements with findings that the Adjudicator was entitled to make on the evidence (see paragraphs 27 to 32)."

[35] The petitioner's counsel submitted that the Adjudicator's assessment of the credibility of this part of the petitioner's claim was fundamentally flawed and unsatisfactory. Reference was made to Karanakaran v Secretary of State for the Home Department [2000] 3 All ER 449. The Adjudicator had failed to make clear whether he accepted that she was a member of the SDF or not. He had not weighed the petitioner's evidence against the background information: he had not considered whether the latter might be wrong and the former might be right. He did not suggest that there were any inconsistencies within her account. She had not been asked to explain any discrepancies between her evidence and the background information. In my opinion, however, it is perfectly obvious that the Adjudicator did not accept that the petitioner was a member of the SDF. Counsel's other criticisms do not appear in the grounds of appeal, which indeed accept the accuracy of the background information and the inadequacy of the petitioner's evidence. It is also clear from paragraph 14 of the Adjudicator's determination that the petitioner's position before him was that the background information was accurate. The Tribunal had no reason to question it.

[36] Counsel also submitted that the Adjudicator had misconstrued the petitioner's evidence in paragraph 29 of his determination. This complaint, however, does not appear in the grounds of appeal or in the petition to this Court, and in my opinion it is not a matter that should have been obvious to the Tribunal.

[37] Counsel also criticised the Adjudicator's paragraph 30. There the Adjudicator said:

"30. Although I accept that, from the background evidence, Cameroon can certainly be a less than pleasant place, for the reasons that I have given, I am not satisfied on the cumulative effect of her evidence, even to the lower standard mentioned above, that the appellant has a well founded fear of persecution for a 1951 Convention reason."

Counsel said that this paragraph was in general or formalistic terms. It must, however, be read in the context of all the material and reasoning set out in the preceding paragraphs. It does not disclose any reviewable error.

[38] In paragraph 32 of the determination counsel took exception to the sentence beginning, "Even although I accept" which I have quoted above. The sentence is certainly difficult to understand. Counsel for the respondent submitted that the phrase meant, "Even if I were to accept", and that the Adjudicator's use of "although" was archaic but technically not incorrect. It could be found in the Authorised Version of the Bible: "Though I speak with the tongues of men and of angels" (1 Corinthians 13, v 1). The Adjudicator uses a somewhat similar construction in paragraph 25, and I am satisfied that in paragraph 32 he means, "Even if I were to accept." The petitioner's counsel went on to argue that passages in paragraph 32 were inconsistent with some of the material in the documents before the Adjudicator, and that other material had been left out of account. These criticisms do not appear in the grounds of appeal. The paragraph is coherent once the phrase just discussed is correctly understood, and there is no readily discernible and obvious error that cries out for explanation. The Adjudicator clearly rejected the petitioner's account of the raid by eight armed men in June 2002; and that account was the foundation of her subsequent narrative, which accordingly also fell to be rejected.

[39] Finally, the petitioner's counsel attacked the Adjudicator's conclusion that he did not accept that there were substantial grounds for believing that the petitioner would, on her return to Cameroon, face ill-treatment that would reach the minimum level of severity required to constitute a breach of Article 3. The Adjudicator had failed to take the holistic approach desiderated in Ravichandran. Counsel also founded on Selçuk v Turkey (1998) 26 EHRR 477. I am unable to sustain this argument. In my opinion the facts and circumstances in Selçuk were much more extreme than those in the present case. The petitioner was ejected from her home on two occasions, in 1997 and 1999, but on each occasion managed to recover possession of it. The Adjudicator held that the third ejection on which she founded did not take place. It appears to me that his conclusion cannot be faulted.

Result

[40] In these circumstances the Tribunal was in my opinion entitled to reach its conclusion that the grounds of appeal lacked substantive merit, and to find that it was not satisfied that because of special circumstances it was just for the time limit to be extended. I shall accordingly sustain the respondent's first plea-in-law and dismiss the petition. I shall reserve the question of expenses.

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	Scottish Court of Session Decisions
You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Boum v. Secretary Of State For The Home Department [2006] ScotCS CSOH_111 (18 July 2006) URL: http://www.bailii.org/scot/cases/ScotCS/2006/CSOH_111.html Cite as: [2006] CSOH 111, [2006] ScotCS CSOH_111

Scottish Court of Session Decisions