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OUTER HOUSE, COURT OF SESSION

[2017] CSOH 65

 

P990/16

OPINION OF LORD ARMSTRONG

In the Petition of

ABT (AP)

Petitioner

against

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT

Respondent

Petitioner:  Devlin;  Drummond Miller LLP

Respondent:  Tariq;  Office of the Advocate General

20 April 2017

Introduction
[1]        The petitioner is a citizen of Ethiopia.  The respondent is the Secretary of State for the Home Department, as represented by the Advocate General for Scotland.  The petitioner arrived in the UK on 29 September 2013.  On 12 February 2014, she claimed asylum, but her application was refused.  She appealed to the First-tier Tribunal (“the FTT”) which refused her appeal by decision, dated 7 June 2016.  Her claims, that she was of Oromo ethnicity, that she was associated with the Oromo Liberation Front (“the OLF”), that she qualified for refugee status on the basis of sur place activity, and that she was at risk of persecution on return to Ethiopia, were not accepted.  Her application to the FTT for permission to appeal to the Upper Tribunal (“the UT”) was refused by decision, dated 1 July 2016.  Her subsequent application to the UT for permission to appeal was refused by decision, dated 27 July 2016.  By this petition for judicial review, she sought reduction of that decision by the UT, dated 27 July 2016, to refuse her permission to appeal.

[2]        In respect that the decision under challenge is an un‑appealable decision of the UT, this application is subject to the second‑tier appeals test, in respect of which, in terms of section 27B(3) of the Court of Session Act 1988, a decision should be made at the stage at which permission to proceed is granted.  In this case, by some procedural omission, permission to proceed was granted without consideration of whether the requirements of that test were met.  The opportunity to determine the matter at a subsequent procedural hearing was not taken.  As a consequence, and somewhat anomalously, at the substantive hearing, in addition to the issue of the merits of the challenge made, the issue of whether the case met the requirements of the second‑tier appeals test remained extant.

 

The Submissions for the Petitioner

(3)        Mr Devlin, who had not previously been involved in the case, submitted that when the petition was read in conjunction with the grounds of appeal submitted to the UT, the basis of the challenge was plain.  It was that in determining whether permission to appeal should be granted, the UT had erred in law by failing to recognise material errors of law on the part of the FTT.

[4]        In relation to the second‑tier appeals test, it was accepted that no important point of principle arose, but it was asserted, under reference to JD (Congo) v Secretary of State for the Home Department (2012) 1 WLR 3273, at paragraphs 26, 27, that there was a compelling reason, in that there was, in prospect, the possibility of extreme and dire consequences for the petitioner, given her fear of persecution.  It was accepted that, in consideration of whether or not there was a compelling reason, extreme consequences, on their own, would not suffice.  There required to be a sufficiently serious legal basis for challenging the UT’s decision.  In that regard, counsel advanced seven propositions.

[5]        Firstly, the FTT had erred in relation to paragraph 81 of its decision, and had made a

finding which no reasonable judge would make.  In that regard, some weight was placed by the FTT on the petitioner’s statement that she had a false passport, in that it contained some false particulars.  The FTT had been wrong to assume, on the basis that the statement was true, that other documents provided by the petitioner were also false, and that, in particular, other documents, such as the ID card of the petitioner’s sister, on which the petitioner placed some reliance, would have been easier to falsify.  In that context, the FTT had taken as support for that view, the inference that the fact that the petitioner had been in possession of her sister’s ID card for a year would not have caused her sister inconvenience if in fact the ID card was not genuine.

[6]        It was submitted that the FTT had been wrong to assume that because the passport

was false, so must be the other documents.  The FTT should have taken account of the widely recognised use by asylum seekers of false identity documents.  The facts did not support the conclusion which the FTT had reached.  It had failed to take into account the possibility that the petitioner’s sister could have obtained a replacement ID card.

[7]        Secondly, the FTT had made a significant error of fact, at paragraph 82 of its decision. 

It was stated there that, although the petitioner had returned to Ethiopia in 2013, an arrest warrant relating to her had not been issued until 2015.  That was inconsistent with the fact noted in the expert report, produced on the petitioner’s behalf, to the effect, at paragraph 11.ix., that the petitioner had been told by her sister, on 1 January 2014, that a warrant had been issued, and with the note of the petitioner’s evidence, at paragraph 60 of the FTT decision, to broadly the same effect.

[8]        Further, the inference at paragraph 82 of the FTT decision, on the basis of the

mistaken date of 2015, that it was implausible that the authorities would take so long to issue a warrant, amounted to conjecture or speculation.  In circumstances in which a decision on credibility was one which depended for its validity on the acceptance of other contradictory facts or inference from such facts, it would be erroneous in point of law if the contradictory position was not supported by any, or sufficient, evidence, or was based on conjecture or speculation (HA v Secretary of State for the Home Department 2008 SC 58, paragraph 17).

[9]        Here, there was no evidential basis for the inference drawn, but, further, on the contrary, there was positive evidence supportive of the petitioner’s position, which the FTT had failed to take into account.  In that regard, the expert report, at paragraph 12.ix., indicated that in Ethiopia it was common for arrest warrants to be issued months after the wanted person had left the country, with no real expectation that the suspect might be arrested.

[10]      Thirdly, in relation, again, to paragraph 82, the FTT had erred, but in another respect.

The FTT had found that it was not credible that, when travelling on a passport which had her real name and photograph in it, the petitioner would have been able to enter and leave Ethiopia without being detected, simply by wearing a hijab or burkha.  Under reference to HA, supra, that contradictory position, based on the inference that if the petitioner was the subject of an issued arrest warrant, and using a passport genuine in those respects, the systems put in place by the Ethiopian authorities would have identified her as a wanted person, was unsupported by any evidential basis, and amounted to conjecture or speculation.  On the contrary, there was evidence available to the FTT to the opposite effect.  Paragraph 9.xv. of the expert report indicated that although those circumstances were unusual, they were not beyond the author’s experience.  The FTT had failed to take that into account.

[11]      In any event, there was available country guidance to the effect that the Ethiopian

authorities did not maintain any centralised system of record‑keeping which would enable officials responsible for immigration and emigration matters to access information regarding wanted persons (MB (OLF and MTA ‑ Risk) Ethiopia CG (2007) UKAIT 00030, at paragraph 60).  The FTT had reached an adverse inference in relation to the petitioner’s ability to return to Ethiopia which had no evidential basis.

[12]      Fourthly, at paragraphs 85 and 89 of its decision, the FTT had drawn an adverse

inference in relation to how it could have been that the petitioner would have been able to return to Ethiopia once the OLF cell, with which she had been associated, had been detected.  There was no evidential basis for such an inference.  Further, the FTT had failed to take into account available evidence to the contrary effect.  At paragraph 42 of the decision, the FTT had noted the petitioner’s evidence that it was only on her return to Ethiopia that she had discovered that the OFL cell had been discovered.  On that basis, she had been unaware of that fact when travelling there.

[13]      Fifthly, in paragraph 87 of its decision, there was an irrelevant consideration taken

into account by the FTT which, although not flagged in the grounds of appeal, was obvious and not merited by the passage quoted in the paragraph.  The petitioner had claimed to have been trafficked, but an investigation by the police had found that: “The account she provided … was severely deficient in terms of evidence required to prove an offence of trafficking for exploitation”.  Those facts did not support the finding, as inferred by the FTT, that the petitioner’s claim of having been trafficked was incredible.  Rather, they pointed only to an insufficiency of evidence such as to merit prosecution.  No other inference was justified.

[14]      Sixthly, at paragraph 91 of the decision, in stating that there was no evidence that

any activities of the OLF in the UK may have come to the notice of the authorities in Ethiopia, the FTT had failed to take into account all material considerations.  In particular, the FTT had before it a letter, dated 11 September 2015, by Dr Berri, Chairman, OLF Committee in the UK, together with photographs, which confirmed that the petitioner had participated in public demonstrations in support of the OLF in London.  That evidence, coupled with the guidance set out in YB (Eritrea) v Secretary of State for the Home Department (2008) EWCA Civ 360, at paragraphs 16 ‑ 18, to the effect that there was a strong possibility that the Eritrean authorities film and photograph their nationals who demonstrate in public against the regime, and use informers and monitoring of the internet for information on oppositional groups, was not taken into account by the FTT when coming to its view as to whether the petitioner’s activities in the UK could have come to the attention of the Ethiopian authorities.

[15]      Seventhly, under reference to R v Lewisham London Borough Council 1988 1 ALL ER

938, 951h ‑952a, the various findings of the FTT in relation to credibility could not be disentangled, such as to allow the conclusion that, notwithstanding flawed findings in some respects, those findings remaining were sufficient to support the conclusion that the same decision would still have been reached.  Here, the flawed findings as to credibility had exerted a substantial influence on the decision.

[16]      The structure of the FTT decision showed that there were considered to be ten indicators of lack of credibility on the part of the petitioner, viz.:

(i)         noted discrepancies as to her ability to be able to speak Oromo (see FTT decision, at paragraphs 77, 78, 90);

(ii)        the issues of the falsified passport and ID card (paragraph 79 ‑ 81, 89);

(iii)       the fact that the petitioner had been able to return to Ethiopia in 2013, undetected (paragraph 82);

(iv)      the apparent delay on the part of the Ethiopian authorities in issuing a warrant for her arrest (paragraph 82);

(v)       the petitioner’s failure to contact her brother before returning to Ethiopia (paragraph 84);

(vi)      the lack of any evidence sufficient to substantiate her claim of having been trafficked (paragraph 87);

(vii)     her naivety in keeping documentation and a photograph indicating membership of the OLF (paragraph 88);

(viii)    her inability to provide information in relation to a Somali family with whom she had stayed for some 19 days (paragraph 92);

(ix)       discrepancies in relation to her age when leaving Mojo (paragraph 93);  and

(x)        contradictory evidence in relation to her sister’s ID card.

[17]      These factors comprised together the basis for a holistic assessment of the petitioner’s credibility.  They could not be disentangled from each other, and the impugned findings, in relation to both their number and the weight accorded to them, had impacted significantly on the overall assessment.  It could not be said that, in any event, notwithstanding the errors made, the same decision would have been reached.  The UT should have granted permission to appeal on that basis.  Accordingly its decision should be reduced.

[18]      In so far as the second‑tier appeals test was concerned, the identified case for the petitioner was legally compelling.  There were strongly arguable errors of law such as to constitute a sufficiently serious legal basis for challenging the UT’s decision, which, together with the dire consequences arising from the petitioner’s fear of persecution, amounted to a relevant compelling reason.

 

Submissions for the Respondent
[19]      For the respondent, it was submitted that the petitioner’s case failed to meet the second‑tier appeals test, and, in any event, did not demonstrate any material error of law in the UT’s decision.

[20]      It was noticeable that the terms of the petition did not expressly specify any error of law on the part of the UT.  Rather, all the averred criticisms were of the decision by the FTT.  The Petition did not meet the requirements set out in SA v Secretary of State for the Home Department 2014 SC 1, at paragraphs 43 ‑ 4.

[21]      The petitioner’s claim for asylum depended on it being accepted that she was a member of the OLF.  That matter turned on her credibility.  The FTT, with the benefit of hearing the petitioner’s own oral evidence, concluded that she was lacking in credibility and that, critically, she was not a member of the OLF.  The UT concluded that the FTT had identified the relevant issues and had properly considered the evidence in the round.  The UT had refused permission to appeal on the basis that the decision of the FTT was a reasonable one on the available evidence.

[22]      Where matters of evidence were assessed by a specialist tribunal, it was appropriate that the court should adopt a light‑touch approach.  The court should be slow to infer that because a relevant point was not expressly mentioned by the tribunal, it had not been taken into account (MA (Somalia) v Secretary of State for the Home Department (2011) 2 ALL ER 65, at paragraphs 43‑ 45).  The court should not be astute to characterise as an error of law what, in truth, was no more than a disagreement with the tribunal’s assessment of the facts (EN v Secretary of State for the Home Department 2014 CSIH 47, at paragraph 27).

[23]      In any event, it was open to the court to find that a decision could survive the existence of an error in the reasoning advanced to support it, if the error concerned was not material.  In the petitioner’s case there had been a number of factors which had undermined her credibility, in addition to those challenged in the petition.  Where, as in the present case, there were other reasons sufficient to demonstrate that the decision reached was nevertheless rational, reduction was not justified (Holmes‑Moorehouse v Richmond Upon Thames London Borough Council (2009) 1 WLR 43, at paragraph 51).

[24]      In so far as the UT’s decision was concerned, it was necessary, in order to appreciate its context, to read it in conjunction with the grounds of appeal submitted in the application for permission to appeal.  In that regard, it was relevant to note that the submitted errors, as advanced, and set out in the petition, in relation to the FTT decision, at paragraph 81 in relation to the falsification of documents, at paragraph 82 in relation to the possibility of entering and leaving Ethiopia undetected, at paragraphs 85 and 89 in relation to the petitioner’s return to Ethiopia once the OLF cell had been detected, and at paragraph 87 in relation to the lack of evidence of her having been trafficked, did not feature in the grounds of appeal before the UT.  Since these matters had not been before the UT, it could not be stated that the UT had erred by failing to take them into account.

[25]      In any event, the FTT decision, read as a whole, was a sufficient and satisfactory exposition of the reasoning for the conclusion reached in relation to the petitioner’s credibility.

[26]      In relation to paragraph 81, and the criticism that there had been a failure to take into account the possibility of a replacement ID card being obtained, it did not follow merely from the absence of an expressed statement that the issue had not been considered (MA (Somali), supra).  In any event, the criticism was speculative in circumstances where there had been no evidence in relation to the obtaining of replacement ID cards in Ethiopia.

[27]      In relation to paragraph 82, it had been the petitioner’s own evidence, as noted by the FTT, in that paragraph, that the OLF cell with which she was associated had been discovered before her return to Ethiopia, in April 2013, using a passport which included her real name and photograph.

[28]      The challenge made in relation to paragraph 89, was not focused in the grounds of appeal before the UT.

[29]      In relation to paragraph 91, concerning the matter of the petitioner’s participation in OLF activities in the UK, properly read, the true matter in issue was not in relation to the relevant standard of proof, but rather whether there was, in fact, any supportive evidence.

[30]      The FTT had found, further, that there was conflicting evidence from the petitioner as to her ability to speak Oromo (paragraph 90);  that it was significant that the petitioner was unable to provide information in relation to the Somali family, despite her claim of being forced to work in their home for a period of 19 days (paragraph 92);  that there was conflicting evidence in relation to the petitioner’s age when leaving Mojo, and that the evidence in relation to her sister’s ID card was confused and contradictory (paragraph 93);  and that the evidence that, as a member of the OLF, she had been made to kneel on broken glass in 2009 was unpersuasive (paragraph 96).

[31]      The evidence available to the FTT had been sufficient to justify its conclusion that the petitioner was not credible in her various accounts.  That was the case even if the findings, said to have been made in error, were not taken into account.  On that basis, the UT had not erred in law.

 

Discussion
[32]      It is appropriate to lay emphasis on the fact that this petition falls very far from the standards expected by the court, as set out in the clearest of terms in SA, supra, at paragraphs 43 and 44.  In that regard, and for the avoidance of doubt, it is to be noted that clear and unequivocal averments are required, in order to inform a decision in respect of the second‑tier appeals test at an early stage, before the petition proceeds.  In the event, having heard the whole submissions advanced on behalf of the petitioner, I am not persuaded that, in this case, the requirements of that test are met.

[33]      It was argued for the petitioner that, before the UT, it mattered not that specific errors relied upon did not feature in the grounds of appeal, because of the duty to consider “Robinson” obvious points if the interests of justice required it (R v Secretary of State for the Home Department, ex p Robinson (1997) 3 WLR 1162), but, in any event, for the reasons set out in the submissions for the respondent, I accept that the FTT did not fall into error and that, in consequence, neither did the UT.

[34]      Further, even if I was wrong to find that the FTT did not fall into error, I would not consider any of the submitted errors to be material.  I am not persuaded that the strands of evidence forming the basis of the assessment of the petitioner’s credibility were so interdependent that they, or the respective weight to be attached to each of them, could not be disentangled, and that in consequence the entire decision of the FTT must be vitiated.

[35]      On a fair reading of the FTT’s decision, taken as a whole, I am satisfied that even if it were the case, as submitted for the petitioner, that the FTT had fallen into error in the ways identified, the findings reached by the FTT, specifically at paragraph 97 of its decision, were, on the basis of the remaining evidence, ones which were reasonably open to it, as were the conclusions reached, as set out at paragraph 98.

[36]      Accordingly I do not find the petitioner’s case to be legally compelling, that there are errors identified which cry out for consideration, that the petitioner’s case is “rare and exceptional”, or that it reflects a compelling injustice.

[37]      Lastly, even if, contrary to my decision, I had found that the FTT and, consequently, the UT, had fallen into error, I would have regarded such errors of the type identified in the submissions for the petitioner to be ones of the character considered by Lord Brown, in R (Cart) v Upper Tribunal (2012) 1 AC 663, at paragraph 99, to be those which the second‑tier appeals criteria were designed to exclude from further consideration.  I am not persuaded that such errors could constitute such a sufficiently serious legal basis for challenging the UT’s decision that, coupled with a fear of persecution, they could amount to a relevant compelling reason.

(38)      I am satisfied that, in such circumstances, to allow the remedy sought in this petition would be to offend against the necessary restrained approach to judicial review of such refusal decisions and that, accordingly, the petition should be dismissed.

 

Decision
[39]      In the result, for the reasons I have stated, I will sustain the respondent’s second and third pleas in law, repel the petitioner’s sole plea in law, and dismiss the petition.

[40]      I reserve, meantime, all questions of expenses.