Aung v Secretary of State for the Home Department

J U D G M E N T

1. LORD JUSTICE MAURICE KAY: The appellant is a citizen of Myanmar. On 12th July 2001 he came to this country. Four days later, he applied for asylum. On 22nd August 2001 his application was refused by the Secretary of State. He appealed to an Adjudicator on asylum and human rights grounds, but on 30th December 2002 his appeal was dismissed. A further appeal to the Immigration Appeal Tribunal was dismissed on 18th August 2003. He now appeals to this court with the permission of Laws LJ who, whilst granting permission, stated that the appellant "will have an uphill struggle."

2. The appellant's application for asylum was put upon a basis which was summarised in this way by the Adjudicator:

"The background to the Appellant's case is that as a young man brought up in Burma he became involved in politics in 1988. He was in due course drawn to the policies of the NLD Party. He joined in 1991. He then became an assistant organiser in a village and township. In May 1996 he was arrested by the Military Service and after interrogation was put before a Military Court and was given a 5 year sentence by the Court. On 31st December 2000 he was released on condition that he should not support the NLD Party or get involved in politics. He was also required to report to the Military Service every month.

Notwithstanding this the Appellant continued to support the NLD and in May 2001 was asked to collect money for a refugee camp and deliver it. He then with his friend Mr Karminthu collected the money and medicine and took [it] to the Thai border to hand it over on the 16th July 2001. On their way to the Thai border they were stopped at a police checkpoint. As a result of being searched by the police who discovered the money and medicine they were taken into custody. They were detained for some 3 days before being produced before a local Court and then released on bail. The Appellant's father had to put up the bail money. They were then released on condition that they appear in Court in 2 weeks.

The Appellant, fearing that his previous release conditions and/or involvement with the authorities would be discovered, decided that he was in real danger of having his involvement with the NLD discovered. As a result of this he and his friend decided to escape. They crossed the border to Thailand."

It was after that that they journeyed to the United Kingdom and the application for asylum was made.

3. The Adjudicator was unimpressed by the appellant's account. He concluded that the account:

"... has the ring of being put together and it seems to me to be largely formulaic."

He added:

"I therefore make an adverse finding of credibility in this case."

He explained his reasons for so doing, concluding:

"Even applying the lower standard of proof in asylum/human rights cases, namely whether or not there is a reasonable likelihood that the account is true, such as would give rise to a risk of persecution or ill-treatment, I do not accept it. I consider that both Appellants decided that they wished to leave Burma and have chosen to manufacture this account to explain the circumstances in which they fled across the border."

A little later he added:

"Having regard to all the matters set out above in relation to the flaws in their respective accounts, I am not satisfied that they left because they had a genuine or indeed well-founded fear of persecution. At the very highest they had been engaged in illegal economic activities as opposed to political activities. That itself would not give rise to any possible serious ill-treatment or persecution if they were to be returned. That much can be established from the fact that they were released on bail at the time rather than simply being locked up without any further trial."

4. The appellant had also given evidence of engaging in political activities since arriving in this country, in circumstances in which he had been photographed and filmed outside the Embassy in the course of protesting. So far as that was concerned, the Adjudicator said:

"I am therefore not satisfied that even if these activities were genuinely pursued, which of course I am not having regard to the conclusion I make above, that they would in any event put the Appellant at risk of any treatment because I am not satisfied on the basis that there is no evidence adduced to prove this, that the authorities in Burma would now be aware of it."

5. When the Immigration Appeal Tribunal considered the appellant's account, it too was unimpressed. It is common ground that both the Adjudicator and the Tribunal rejected the account of the lengthy term of imprisonment some years earlier. In one respect, however, the Tribunal seems to have thought that it was taking a more favourable view of the evidence than the Adjudicator had. It stated in paragraph 23 of its determination:

"Overall, there is clearly considerable doubt as to whether the appellant, in the light of his otherwise false claims about central aspects of his case, is reasonably likely to have been telling the truth about the fact that he was arrested at the border and later bailed. Unlike the Adjudicator, however, this Tribunal is prepared to accept that there is a reasonable likelihood that this occurred, but that it was in respect of a relatively minor matter. There is certainly no reason whatsoever to assume that the items being transported were bound for political opponents of the Burmese regime, living in Thailand."

6. So far as the appellant's activities in this country are concerned, the Immigration Appeal Tribunal came to the same conclusion as the Adjudicator had. It said in paragraph 34 of its determination:

"... there is no reason to suppose there is any photograph of him held by the Burmese authorities and, even if it were, it would, to say the least, be extremely difficult to marry any photograph of him that was in official hands to the images of the appellant (in one case, wearing dark glasses) in the crowd outside the embassy. It is important in this regard to appreciate that, on the facts found by the Adjudicator, there would be no record whatsoever of the appellant having been of adverse interest to the authorities, for the simple reason that he has never been of such interest."

Then at paragraph 37:

"... looking at the totality of the evidence, it is not reasonably likely that the Burmese authorities know anything about the activities of the appellant, besides him being an unidentified face in a crowd. On his return to Burma they would simply have no reason to connect him with that crowd."

Finally, in paragraphs 40 to 42:

"... this Tribunal considers that the minimal extent to which the appellant has been involved in 'anti- government activities' is such that the Burmese Government would in his case be entirely able to distinguish him from a 'genuine political opponent'.

What caused the appellant to succeed in his appeal before the Tribunal in Win [[2002] United Kingdom IAT O7008] was the fact that, not only had he engaged in the anti-government activities whilst in the United Kingdom, he also had (on the facts as apparently found by the Adjudicator) a record within Burma of such activities, as a result of which he had served a sentence of imprisonment.

In the present case no such record exists, for the reasons we have already given."

Those conclusions were reached by the Immigration Appeal Tribunal on a most careful consideration of the circumstances in which activities in this country may be related to the authorities in the country of an asylum seeker's origin. That careful consideration also included detailed consideration of the case of Win , which was distinguished in the manner to which I have referred. In all those circumstances, the appellant's appeal was therefore dismissed.

7. Before this court Mr Norton-Taylor, on behalf of the appellant, advances essentially one ground of appeal, which he formulated in writing in these words:

"Where the Tribunal overturns an Adjudicator's findings on a particular point of potential importance to the outcome of an appeal, it is incumbent on it to consider in detail the implications of this to the risk on return. In such circumstances the Tribunal cannot rely entirely on the conclusions of the Adjudicator, given that one of his findings has been displaced. In the present appeal the Tribunal has erred in failing to adequately consider the consequences of its own decision to overturn a finding of the Adjudicator."

8. The alleged overturning and displacement refer of course to the passage in the determination of the Immigration Appeal Tribunal in which the Tribunal believed it was taking a more favourable view of one part of the evidence when it said, "unlike the Adjudicator, however, this tribunal is prepared to accept", that the appellant had been arrested at the Thai border and later bailed.

9. On behalf of the Secretary of State, Miss Callaghan submits that this appeal is based on a misapprehension. Far from disagreeing with the Adjudicator about this part of the evidence, the Immigration Appeal Tribunal, though it thought otherwise, came to substantially the same conclusion, namely that the appellant and his friend had been arrested and bailed near the border but in relation to activities that were not at all political or otherwise of significance for present purposes. She points to the finding of the Adjudicator, to which I have already referred but repeat here:

"At the very highest they had been engaged in illegal economic activities as opposed to political activities. That itself would not give rise to any possible serious ill-treatment or persecution if they were to be returned. That much can be established from the fact that they were released on bail at the time rather than simply being locked up without any further trial."

She then refers to the conclusion of the Immigration Appeal Tribunal, that the appellant was arrested and later bailed, "but that it was in respect of a relatively minor matter."

10. For my part, I accept Miss Callaghan's submission. Whatever the Immigration Appeal Tribunal thought, there is no significant difference between its own conclusion on this point and that of the Adjudicator. In one sense that disposes of the appeal as originally formulated.

11. However, in the course of his submissions, Mr Norton-Taylor invited us to consider the totality of the case, in particular by assessing the possible significance of the finding to which I have referred, in combination with the post-arrival activities in this country. He is, by so doing, attempting to argue that the arrest and release prior to departure from Myanmar, coupled with the post-arrival activities and their recording, would place the appellant at risk on return. He is seeking to criticise the Immigration Appeal Tribunal for not considering those two aspects of the case in combination.

12. In my judgment, that submission must also fail. If one reads the conclusion of the Immigration Appeal Tribunal on events that occurred in Myanmar before departure, together with its very careful analysis of the post-arrival activities, and the possibility of any risk on return arising therefrom, it is clear that its dismissal of the appeal was untainted by any error of law, and was not characterised by any failure to consider the two aspects of this case in combination.

13. As a matter of history, it appears that the appellant's friend, with whom he had been arrested and with whom he came to this country, did appeal successfully to an adjudicator. However, that is something upon which the appellant is unable to place any reliance either before the Adjudicator, the Immigration Appeal Tribunal or this court. Quite simply the evidence in the two cases was different and the Adjudicator and the Immigration Appeal Tribunal were entitled to come to the conclusions to which they came on the evidence in the appellant's case.

14. In the light of all that I have said, I would dismiss this appeal.

15. LORD JUSTICE LONGMORE: I agree.

16. LORD JUSTICE JONATHAN PARKER: I also agree. So the appeal is dismissed.

(ORDER: Appeal dismissed. Detailed assessment of costs)