"The appellant spoke of attacks upon his home by Tutsi soldiers in 1994, 1998 and 2001. The current situation between Tutsi and Hutu was considered in the determination. The appellant feared that he would be at risk because of his brother's activities with the Interahamwe. The Immigration Judge at paragraph 23 of his determination did not find the account of the search for the brother to be credible. The Hutu constitute the majority of the population of Burundi. A transitional Government was installed in November 2001 and has been working closely with the United Nations. The reasoning of the Immigration Judge was adequate. The appellant has himself no personal political profile and his brother now lives abroad in any event. Four years have elapsed from the events described. The determination does not disclose any error of law in its approach to the issue of return or at all."

"3.1 The reasoning of the Immigration Judge ('the judge') was not adequate (see line 9 of the decision of the Tribunal). The judge correctly identifies whether the incident in 2001 took place as the first part of the important question (see last sentence in paragraph 22 of the decision by the judge dated 29 April 2005). He concludes (see final sentence in paragraph 23 of his decision) that it did not because the authorities would have known where to find the appellant's brother (see earlier in paragraph 23). This was not a finding that was open to him because there was no evidence that the authorities knew where his brother was. The reasoning of the judge was therefore based on speculation. It is accordingly flawed. In so far as the Tribunal state that his reasoning was adequate its decision is similarly flawed.

3.2 The reasoning of the Immigration Judge ('the judge') was not adequate (see line 9 of the decision of the Tribunal). The judge correctly identifies the effect of the incident in 2001 will have on the risk on return as the second part of the important question (see last sentence in paragraph 22 of the decision by the judge dated 29 April 2005). If the incident in November 2001 did take place the judge was not entitled to draw the conclusion that there was no credible reason to believe that the authorities would know or care about his return (see third sentence in the judge's decision). Such a line of reasoning would be justified only if (a) the incident was not itself important; and (b) the improvement in the country situation to which the judge refers in the second last sentence in paragraph 24 was sufficiently marked as to render the effect of the incident in November 2001 irrelevant. There was no evidence that the incident was anything other than serious while the judge basis his conclusion that the country has improved on minimal evidence. His decision is therefore flawed. In so far as the Tribunal state that his reasoning was adequate its decision is similarly flawed.

3.3 The determination of the Immigration Judge disclosed an error of law (see line 12 of the Tribunal's decision). In finding that it would not be unduly harsh for the appellant to avoid his home area. It is assumed he has meant that it was open to the appellant to seek the option of internal flight relocation in Burundi. If so, he has erred by failing to properly consider the appropriate test and relevant issues, such as whether the appellant would be able to work in another part of Burundi, what effect this would have on his home/family life, what protection, if any, he would have, and what other consequences would result from such an important move. (AE and FE v S.S.H.D. (2003 INLR 475)."

Submissions of the appellant

"It became clear in the course of evidence that the appellant's brother was a substantial business man. He was getting large shipments of garments from Thailand, which he was selling from their father's shop. His brother was also able to travel abroad. In these circumstances it must always have been obvious to the authorities where to find his brother. I do not believe his evidence as to the incident in which they are alleged to have been looking for his brother."

Counsel submitted that the conclusion reached by the Immigration Judge in paragraph 23 was not based on evidence. Rather it amounted to no more than speculation and was therefore flawed. To the extent that the conclusion of the Asylum and Immigration Tribunal stated that that reasoning was adequate, its decision was similarly flawed. In connection with this submission, counsel drew our attention to Wani v Secretary of State for the Home Department 2005 S.L.T. 875, particularly at page 884. In particular, the inference to be found in the second last sentence of paragraph 23 could not be drawn on the basis of the earlier parts of that paragraph. Thus the Immigration Judge was not entitled to disbelieve the evidence of the appellant on that basis.

"The basis of the claim to asylum, as summarised for the appellant in submissions, was as follows:

'The appellant has a well-founded fear of persecution from the security forces and affiliated armed groups is returned to Burundi, by reason of his social group as the brother of a Hutu militia member suspected of involvement in the Interahamwe.'"

In paragraph 5 it was narrated that it had been specifically conceded on behalf of the appellant that he was not seeking asylum by reason of his Hutu ethnicity alone, or his perceived political opinion. Against that background it was accurate to say, as the Immigration Judge did in paragraph 24, that "in any event, the appellant has not claimed to have been personally targeted." In connection with this submission the standard of proof was crucial. It was contended that that standard amounted to "a reasonable degree of likelihood". There was, however, no mention of that standard of proof in the decision, particularly in paragraph 23 or 24. Paragraph 24 was couched upon the basis that the incident of November 2001 did in fact take place. However, the Immigration Judge was not entitled to draw the conclusion that he sought to draw in paragraph 24. In connection with this submission paragraphs 14 and 15 of the decision, which dealt with country information, derived from the United States Department of State document dated 28 February 2005 and the document compiled by the County Information Policy Unit. Paragraphs 14 and 15 were inconsistent with the document from the United States Department of State. At this point in the submissions counsel for the respondent produced the report compiled by the Country Information Policy Unit, of 2004. After consideration of this document counsel for the appellant accepted that paragraphs 14 and 15 of the decision appeared to be consistent with that document. Nevertheless, he argued that that did not undermine this ground of appeal. The Immigration Judge had reached a conclusion based on a misunderstanding of the evidence, which gave rise to an issue of law. In any event, the Country Information Policy Unit report was unclear regarding the present risk which the appellant might face in Burundi. In all the circumstances the finding made in paragraph 24 was perverse.

"If the appellant fears being asked about his brother, avoiding his home area in order not to run into anyone who might possibly pose such questions would not be unduly harsh."

If the grounds of appeal 3.1 and 3.2 were to fail, 3.3 would be immaterial. However, if the appellant succeeded on grounds 3.1 and 3.2 paragraph 25 of the decision should be reconsidered. The fact of the matter was that there was no material available to the Immigration Judge to entitle him to make the finding contained in paragraph 25.