Banaga, R (on the application of) v Secretary of State for the Home Department [2012] EWHC 4167 (Admin)

Case No CO/6778/2011[2012] EWHC 4167 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
Venue Royal Courts of JusticeDate Monday, 10 December 2012
Strand
London WC2A 2LL
B e f o r e:
HER HONOUR JUDGE ALICE ROBINSON
(SITTING AS A JUDGE OF THE HIGH COURT)
Between
THE QUEEN ON THE APPLICATION OF BANAGAClaimantv
Between
SECRETARY OF STATE FOR THE HOME DEPARTMENTDefendant
Computer-Aided Transcript of the Stenograph Notes ofWordWave International LimitedA Merrill Communications Company165 Fleet Street London EC4A 2DYTel No: 020 7404 1400 Fax No: 020 7404 1424(Official Shorthand Writers to the Court)
Mr J Collins (instructed by Howe & Co) appeared for ClaimantMr J Jolliffe (instructed by the Treasury Solicitor) appeared for Defendant
J U D G M E N T

JUDGE ROBINSON:

[1]This is a renewed application for permission to apply for judicial review by the claimant, a national of Sudan born on 10 November1977, which makes him 35 now. On 29 September 2006 the claimant asserts that he entered the United Kingdom. That is the date on which he claimed asylum. On 16 October 2007, his claim for asylum was refused and on 17 December 2007 the appeal against that refusal was dismissed. A subsequent request for a reconsideration was refused. On 2 June 2010, the Secretary of State responded to further submissions. On 18 April 2011 the Secretary of State again responded to further submissions.[2]This application for judicial review was launched on 15 July 2011. Permission was refused on 5 December 2011 by His Honour Judge David Pearl sitting as a Deputy High Court Judge. The application was renewed. Further representations were made on 30 January 2012, to which the Secretary of State responded on 28 February. Further representations were made on 31 August, to which the Secretary of State responded on 11 October. Yet further representations were made on 11 October 2012, to which there has not been a formal response.[3]In the further amended grounds, the claimant's criticism of the Secretary of State's decisions are comprehensively set out in relation to each decision letter. In the oral submissions made before me, Mr James Collins has not formally pursued those. His submissions relate rather to complaints about the Secretary of State's more recent decisions, although he indicated that he did not formally withdraw the challenge to earlier decisions.[4]In my judgment, it is instructive to begin consideration of this claim by going back to those earlier criticisms of the Secretary of State's first decision on 2 June 2010. It was said that the Secretary of State had misunderstood the findings of the Asylum and Immigration Tribunal judge relating to the claimant's credibility. The Asylum and Immigration Tribunal judge considered two arguments by the claimant in support of his claim for asylum: first, that he had previously been involved in the Muslim Brotherhood, and secondly that he was an army deserter. The judge said this at paragraph 80: "On careful consideration of the appellant's history, I do not find his assertion credible that he has experienced persecution or that he is perceived by the authorities to have a political opinion contrary to the theirs or their interests merely by virtue of abandoning his links with the Muslim Brotherhood when he was 17 years old. I concur with the respondent who in rejecting the appellant's claim put it this way: 'Even if it is accepted that you were indeed a member of the Muslim Brotherhood, there is no reason to believe that they would seek to harm and harass you over such a long period merely because you decided you did not want to be a member of the organisation.'" [quote not checked]

The judge continued in paragraph 85:

[5]"I have placed no reliance on the appellant's story of events. I believe the appellant had developed an account which is not only incredible but unreal. My finding on his overall credibility with his asylum claim is effectively nil. There is nothing I find that establishes at the lower standard that this appellant is credible in his claimthat he is in fear of being the subject of serious harm in Sudan by virtue of him having forsaken the Muslim Brotherhood some 12 years ago." [quote not checked][6]It is to be noted that that finding involved the rejection of a great deal of very detailed evidence which the appellant gave about the alleged persecution which he had suffered as a result of having, in his view, forsaken the Muslim Brotherhood when he was 17.[7]As to the other way of putting the case that he was an army deserter, the Tribunal judge said this in paragraph 82: "It was conceded by Mr Marshall that in the light of the country guidance case of BA (Sudan) 2006 UKAIT 406, the appellant's claim that he would be subject to persecution for having departed/deserted the army cannot be founded. Mr Marshall described this aspect of the claim for international protection as being a red herring. Mr Marshall reiterated that the core of the appellant's claim rests on his Muslim Brotherhood past, which it is submitted bring with it a real risk that the appellant would be targeted for persecution because of perceived political opinion." [quote not checked][8]In my judgment, there is absolutely nothing whatsoever in the suggestion that the Secretary of State has misunderstood at any stage the AIT findings about the claimant's credibility. They are set out very clearly in the passages which I have quoted, namely that if the claimant was a member of the Muslim Brotherhood (something which it was not necessary to decide) the evidence that the claimant would as a result suffer any harm was completely rejected. Those findings have quite properly been reflected in the Secretary of State's decisions relating to this claimant ever since.[9]I pass over the criticisms of the decision dated 18 April 2011 relating to the way in which the Secretary of State dealt with evidence put forward from a Mr Verney (As heard-please check spelling in papers), including relating to an arrest warrant, as those have not been pursued orally before me. I will concentrate on the arguments put forward this morning that the Secretary of State has failed to take any proper account of representations made by the claimant that since February 2008, it is alleged, he has been actively involved in the organisation called the Justice for Equality Movement (JEM).[10]Those points were first made in submissions made to the Secretary of State on behalf of the claimant dated 28 March 2011, which attached a witness statement from the claimant about his activities with that organisation. Those submissions were dealt with by the Secretary of State in the decision letter dated 18 April 2011 in section 2, headed "Submissions that have not previously been considered but which do not create a realistic prospect of success." Therefore, the Secretary of State quite properly recognised that those were not submissions that had previously been considered but raised a new point.[11]In that decision, the Secretary of State deals with the evidence submitted on behalf of the claimant and effectively says that insufficient detail has been provided; that the witness statement simply refers to the claimant being "active", without explaining what that means; and in so far as he is said to have attended demonstrations, the only independent evidence were photographs of one single event. The Secretary of State then said this: "You have not supplied any evidence to show that you have a high political profile as a result of your political activity in the UK. You have not supplied any proof that the authorities in Sudan are aware of your presence in the UK. You have not supplied any proof that the authorities in Sudan are aware of your political activity in the UK. As noted above, the immigration judge clearly made findings that your 'overall credibility' was nil and that no reliance was placed on your story of events. The evidence you have lodged in your recent further submissions do not show that you are a refugee sur place as the Sudan authorities are not and were not aware of your activities either in Sudan or latterly here in the UK." [quote not checked][12]There has been no serious challenge to the Secretary of State's conclusion in that letter that proof had not been supplied that the authorities in Sudan were aware of the claimant's presence in the UK or his political activities here. The claimant sought to remedy that lack of information by supplying a letter dated 30 January 2012 from Mr Abdulrahman Sharafedin, the General Secretary of the JEM UK branch. In that letter, the author refers to the claimant's activities with JEM since February 2008, and also refers to the claimant's involvement in demonstrations which have attracted media attention and, it is said, were widely reported on the internet.[13]Further evidence was submitted by way of a witness statement from the claimant and a witness statement from Mr Sharafedin detailing the claimant's alleged activities with JEM. In a letter dated 11 October 2012, the Secretary of State dealt with those in detail. The Secretary of State begins by noting on page 5 of the decision letter:
"It is however noted that you have made further submissions on 23 March 2009, 2 June 2009 and 12 March 2010, none of which mention your involvement with this group. It is considered that clearly your involvement could have been raised in any of these submissions. That it was not clearly casts some doubt on the content of these statements." [quote not checked] The letter goes on to refer to the evidence and continues: "
It is noted that these letters made no mention of your being a member of JEM, although according to your statement you joined in 2008. It is noted that neither letter confirms the activities you now claim you were involved in during this period. They make no mention of your involvement in arranging senior high-level meetings or your involvement in highlighting the situation of other people from Sudan who are being removed. Both letters state that you have a much more limited role attending meetings, although neither confirms how often you attended these. It is further noted that in your new statement you claimed to have attended a variety of meetings and demonstrations. However, when you made your further submissions in 2011, you were only able to provide photographs showing your attendance at one event. It is considered that these letters cast further doubt on the contents of your statements." [quote not checked][14]After referring at length to the previous decision dated 28 February 2012, the letter dated 11 October 2012 continued: "It is noted that this most recent letter from JEM includes information about your activities which were not included in the previous letters. Although these activities commenced prior to the letters being written, it is considered that no explanation has been provided in respect of why these activities were absent from letters submitted in 2011. It is considered that as you have stated that you have commenced these activities in 2009 they could and should have been mentioned in your previous submissions. It is considered that their inclusion in this letter given their absence from the previous correspondence must cast doubt on the contents of this letter." [quote not checked][15]The Secretary of State goes on to give detailed consideration to the statement from Mr Sharafedin, which I do not quote, but after drawing attention to a number of points made in that statement and a number of points made previously by the claimant, the Secretary of State concludes: "It is considered that your statement and that of Mr Sharafedin are again inconsistent and given this it is considered that their contents cannot be accepted." [quote not checked][16]The Secretary of State goes on to consider the claim that the claimant would be known to the Sudanese authorities as being involved in promoting JEM in many ways, including the internet. The letter continued: "It is noted that having undertaken a search for your name several hits were found. However, none of these were for political articles and all related to social networking websites. It is noted that you have provided two copies of articles which you have written and are published on the internet, however neither of these were located having undertaken this search. It is also noted that the articles are identical although they were published on different websites on different dates. It is considered that the evidence you have provided seeks to show that you have a significant profile in JEM. However it is considered that there are significant inconsistencies between the evidence you provided in support of your previous submission and the statements you have now provided. It is considered that these inconsistencies cast significant doubt upon the contents of these statements and given this the content of these cannot be accepted." [quote not checked][17]After referring to BA [2011] UKUT 36, the Secretary of State concludes: "It is considered that you have failed to show that you would be of any interest to the authorities in Sudan. Whilst you claim to have attended demonstrations since February 2008, you have provided evidence of your attendance at only one of these. You claim that you have a significant profile, however the evidence you have provided is inconsistent about the time frame for your involvement and the level at which you were involved. It is considered that the documents you have provided are internally inconsistent and that they are inconsistent with the evidence you have provided for your last two sets of further submissions. Given this, is not accepted that you have come to the attention of the authorities in Sudan. It is considered that overall it is not accepted that you have a role in JEM or that your involvement with them with would place you at any risk on return to Sudan." [quote not checked][18]In my judgment, the suggestion that the Secretary of State has failed to have proper regard to the material put before her is unarguable. Reference was made to the letter from JEM dated 30 January 2012, highlighting the way in which the claimant's activities would come to the attention of the Sudanese authorities. However, for the reasons given which I have already quoted, the Secretary of State has dealt fully with that assertion and rejected it.[19]It was also submitted, for example, that on page 7 of the decision letter dated 11 October 2012, it was wrong for the Secretary of State to say that information about activities was not included in previous letters. That submission is hopeless. The Secretary of State is simply drawing attention to the fact that the level of detail now provided, which was inconsistent, had not been mentioned in earlier submissions, even though the claimant's activities were apparently being conducted at that stage.[20]Further, it was submitted that the conclusion at the bottom of page 7 of the decision letter that this material simply casts doubt on the content of this letter does not amount to a finding to which the Secretary of State could properly come in a conclusion that an appeal would have no reasonable prospect of success, and that these are matters which should be decided by an immigration judge on an appeal. However, that is but the beginning of the Secretary of State's consideration in this letter and, as I have already indicated, the letter continued to deal in detail with all of the material put forward and gives full and cogent reasons for rejecting it.[21]It may well be the case that those politically active within JEM would be at risk of persecution if they returned to Sudan, but that does not assist the claimant given the Secretary of State's entirely rational conclusion that the evidence simply does not support that he has such a role or has come to the attention of the authorities in Sudan.[22]Finally, I should just touch on this. Some complaint was made that the Secretary of State had failed to respond to further representations dated 11 October 2012, those crossing with the Secretary of State's decision letter of the same date. That letter makes two points: first of all that current operational guidance note relating to Sudan, dated 13 August 2012, indicates that JEM members would be at risk of persecution in Sudan. For the reasons I have already given, that does not assist the claimant because the Secretary of State has rejected the suggestion that he has a role in JEM. The second point made in the letter is that "if Mr Sharafedin is the witness of truth, then our client is an active JEM member in the UK and pursuant to RT (Zimbabwe) he would obviously not be expected to lie on return to Sudan." On that basis, he would be at risk. However, this again suffers from the same problem which I have just mentioned, namely for the reasons given the Secretary of State does not accept that the claimant has a role in JEM. Therefore, the letter from the claimant's solicitors dated 11 October 2012 adds absolutely nothing to the representations already made and the Secretary of State's decision on them. For all those reasons, this application is refused.[23]MR COLLINS: We are publicly funded on this matter.

JUDGE ROBINSON:

[24]I will make an order for taxation of your fees. Thank you.