jh
Heard at Field House			
On 19 March 2004		 AA (Credibility – Totality of evidence – Fair trial) Sudan [2004] UKIAT 00152	

IMMIGRATION APPEAL TRIBUNAL
	
                                                                             Date Determination notified:

                                                                                          03 June 2004	

	Before:		

Mr J Barnes (Chairman)
Professor B L Gomes Da Costa JP
Mr D C Walker
	
Between	

	
		APPELLANT	
			
	and		
			
The Secretary of State for the Home Department
	
		RESPONDENT 	

Representation
For the appellant:	Mr D Saldanha, a Solicitor of Howe & Co, N22
For the respondent:	Miss J Sigley, Home Office Presenting Officer

DETERMINATION AND REASONS

1.	The appellant is a citizen of Sudan born on 8 February 1973 who claims to have entered the United Kingdom clandestinely on 26 December 2002 with the help of an agent.  He applied for asylum and submitted a self-evidence form and statement and was subsequently interviewed on behalf of the Secretary of State who refused his application for the reasons contained in a letter dated 12 February 2003.  He appealed against that decision on both asylum and human rights grounds and his appeal was heard on 25 June 2003 by Miss J M Craig, an Adjudicator.  The Secretary of State was not represented before her. She dismissed his appeal on the basis of adverse credibility findings.

2.	The basis of his claim is set out aptly in the refusal letter as follows at  paragraphs 2 and 3:

“2.  You claim that you and three other trainees applied for a nursing job at the local medical centre.  You claim that your friends were employed with a salary but you were rejected because you did not have primary school certificate.  You clam that two of your friends did not have primary school certificate.  You claim that you were discriminated against because of your colour.

3.  You claim that while working at the clinic you found that they were patients (sic) who had wounds that were not consistent with their illness.  You claim that you started being suspicious that organs were removed from patients without their knowledge.  You claim that one of your colleagues saw big machines inside the room when he was passing and the door was ajar. You claim that you overheard a conversation between doctors where they claim that they carried out these operations and were poorly paid.  You claim that you asked a nurse if they carried out operations at the centre and he in turn asked you for the source of your information.  You claim that the nurse grabbed you and said that you knew something you should not have and this would cause you your life (sic).  You claim that on 19 October 2002 two armed officer (sic) in military uniform came to the centre and asked you to go with them.  You claim that you were taken to a military camp in the city of Kaduvli where you were questioned about the source of information and the people with whom you discussed the subject.  You claim that you were questioned for three days.  Two soldiers hit you on the back and left ear with a riffle butt (sic) and sometime (sic) they beat you with their hands.  You claim that you were accused of spying and treason as well as other charges that you did not understand.  You claim that on the fourth day you were put in a small cell alone.  You claim that the glare was strong in the cell to prevent you from sleeping.  You claim that they would tie your hands together, legs together and hang you from a rope like a crossbar and stretched your body.  You claim that after your confession you were asked if anyone else knew about it and you told them no.  You claim that you were transferred to a bigger room with six other people who you did not know.  You claim that you managed to escape when a guard got bitten by a snake.  You claim that you ran away and went to a nearby village and from there boarded a lorry to Aldalang City.  From here you went to Kutsi and then to Port Sudan.”

3.	From the other material before us it is clear that the appellant’s claim is that he worked as an unpaid nurse in the hospital referred to from October 2001 until his claimed arrest.

4.	The Adjudicator did not deal with much of his claim because she came to the view that his account of events at the hospital was not credible.  It would, as was accepted by Mr Saldanha, follow that if that finding is sustainable the rest of the story collapses because everything is dependent upon that being a credible beginning to the account. The reasons for refusal letter makes it quit clear that there is a general challenge to credibility on the part of the Secretary of State who, regrettably, was once more not represented at the hearing before the Adjudicator.

5.	The Adjudicator sets out her reasons for her adverse findings at some considerable length in paragraph 19 of her determination, and it is appropriate that we set out that paragraph in full in our written determination.

“19 (a)  The appellant says that he worked as a volunteer at the hospital, without pay, having been unable to secure a paid position.  I find this difficult to accept in a poor country such as Sudan, and the appellant says he had a wife to support.

(b)  The appellant says that the hospital authorities were surprised and angry when he appeared to know that people were having kidneys removed.  However, if he was being asked to provide post-operative care to these patients, and there were other suspicious factors such as the secret room and the unexplained army minibus visits, then any intelligent person would have had suspicions.

(c)  At paragraph 6 of his SEF statement the appellant said “All the patients that I looked after had a wound consistent with kidney transplant operations”.  In evidence before me, he said he had only seen two such persons with his own eyes but had suspicions about others.  Later in the same evidence he said that he had not meant to say that all his patients had the operation scar, just some or most of them.

(d)  In his appeal statement at paragraph 5 the appellant said “I could have avoided what had happened to me by keeping my mouth shut and acquiescing to the implicit demands of the army, but I refused to do this”.  At paragraphs 10 and 12 of the same statement he said that he was a threat to the racket because he could have told the local people what was happening.  However, he said in evidence that the only other people he had told were his wife and two of his colleagues.  However, in his SEF statement (paragraphs 10 – 13) he said that upon arrest he initially denied any knowledge of the subject and only after 13 days of torture did he say that he had discussed the subject with two other colleagues but that nobody else knew about it.  According (sic) on that version he had never told the army that he would reveal his suspicions to the local population.  It is therefore difficult to see why the army should have continued to detain him, they would either have killed him or released him.

(e)  The appellant has not been consistent about when he says that he realised that people had been having kidneys removed without their consent.  In his SEF statement he said that he had suspicions, but these were only confirmed when he overheard some doctors talking in the staff canteen.  However at paragraph 10 of his appeal statement he said that when he looked at the patients wounds after surgery he knew that these scars resembled those of kidney operations and “It was at this moment that I realised what was happening”.

(f)  The local population would hardly have needed him to tell them that something strange was happening if dozens of them were really going into hospital with minor complaints and coming out with identical very large operation scars.

(g)  When asked in evidence before me the reason the patients with kidney scars had come into hospital in the first place, his answer was rather vague, saying that they were admitted if they had a slight problem like diarrhoea or minor injuries or malaria.  I am not prepared to accept that persons with intestinal infections or malaria would have been suitable kidney donors.

(h)  At paragraph 11 of his appeal statement the appellant said that the organs had to be transported to where they were needed which was likely to be far away given that the medical centre was in a remote and poor part of southern Sudan.  He had already mentioned an army minibus calling once a fortnight at the hospital, and went on to say in the same paragraph that he was aware that there were regular flights from the military bases in the area to Khartoum and other major centres that offered a market for such organs.  However, it is common knowledge that solid organs such as kidney, liver, etc must be transplanted fresh, i.e. within hours rather than days or weeks.  They cannot be preserved for later transplantation as can “tissues” such as cornea, skin, ligaments etc.  This whole issue of timescale strikes at the heart of the appellant’s claim as any donor kidneys would not be likely to survive long enough for transplant purposes.

(i)  While I acknowledge Dr Steadman’s credentials as an expert witness, and am grateful for his careful report, nevertheless his report is of limited value.  He does not say what documents he had available to him e.g. GPs records, witness statements etc nor does he say how long his examination of the appellant lasted.  While he says that the scars were consistent with the appellant’s claims, he does not say whether some other causation was equally possible.  As to the appellant’s psychological problems, Dr Steadman’s conclusions depend upon him accepting the appellant’s version of events, whereas credibility is a matter for me and I do not find the appellant to be a credible witness.”

6.	Mr Saldanha accepted that in relation to the issues dealt with at paragraphs (a) to (g) it would not be possible to argue that any one of those specific issues and findings was unsustainable on the totality of the evidence, but the thrust of his submissions to us, as also appeared in the grounds of appeal, was that it was the finding at paragraph 19(h) which was pivotal to the Adjudicator’s determination.  That was a finding which was unfairly reached because it had not been raised at the hearing so that the appellant had not had an opportunity to deal with the question of the relevant timescale.  It was a subsidiary point taken by him that the findings at paragraph 19(i) dealt inadequately with the medical report which was before the Adjudicator, but it seems to us that with respect to the submissions he made on this point, which are recorded in our record of proceedings, that the outcome of the appeal is really wholly dependent on the central core submission relating to paragraph 19(h).

7.	We note that the appellant has not put in any statement trying to deal with the timescale point raised by the Adjudicator but Mr Saldanha submits to us that nevertheless there may be possible explanations which would deal with this, although not placed before us.  He says in this respect that the appropriate point for those to be dealt with would be in evidence before an Adjudicator on remittal if the present decision is unsustainable as he contends. We do not agree. The timescale point goes directly to the credibility of the claimant’s account.

8.	For her part, Miss Sigley in her submissions said that even ignoring paragraph 19(h) it seemed to her that the Adjudicator’s findings were otherwise sustainable in the rejection of the credibility of the essential issues in the appellant’s account but that, in any event, there was no reason why the Adjudicator should not have relied on “common knowledge” as she does clearly at paragraph 19(h).  In this connection we note also that Mr Saldanha had produced before us a document from medtech1.com with an article about a study to rate methods of kidney storage from which it is quite clear that medical opinion supports the accuracy of what the Adjudicator refers to as “common knowledge” as she sets it out in her determination.  

9.	The issue which we have to resolve is in essence whether the appellant has been unfairly disadvantaged by the failure of the Adjudicator to raise issues in relation to paragraph 19(h) at the hearing so that he would have an opportunity to deal with them.  We note that the appellant made an initial written statement submitted with his self-evidence form which had clearly been professionally prepared. We take it that that was in circumstances where he was under no immediate pressure as he was being dealt with by his own solicitors and it purports to set out a clear and full account of his basis of claim.  It was further explored at interview where nothing is said which would deal with the point raised at paragraph 19(h) as to the timescale.  His evidence at the hearing took matters no further. What the  Appellant said at paragraph 6 of his statement of 21 January 2003 on this issue was:

“I started being suspicious that organs were removed from patients without their knowledge. We also noticed that an army forces mini bus would come to the centre every two weeks. We did not know what the mini bus was delivering to the centre. This is because the mini bus would off load into a specific room at the centre to which we did not have access, nor were we allowed to go near that room. This order was made to us in the induction session.”
The only other potentially relevant reference was at paragraph 11 of his supplementary statement of 16 June 2003 as follows:

“Furthermore these organs had to be transported to where they were needed, which was likely to be far away given that the medical centre was in a remote and poor part of southern Sudan. I can only assume therefore that it must have had the active co-operation of senior members of the Army. I knew there were regular flights from the military bases in the area to Khartoum and other major centres that offered a market for such organs.”

It is difficult, therefore, to see that there is any other evidence which might go to explaining the basic improbability in his account by reference to the timescale point.

10.	We acknowledge that the question of what should be raised with an appellant in order to give him an opportunity to provide explanations which may assist his case is not an easy one, but it seems to us that the Adjudicator was perfectly entitled, contrary to Mr Saldanha’s submission, to apply what she refers to as common knowledge as to the transplant requirements in relation to solid organs such as kidneys, livers and so on, particularly when that common knowledge on which she draws (and would we consider be available to any moderately educated person), is clearly confirmed by the evidence which the appellant’s representatives have subsequently filed before us.

11.	The only issue therefore is whether there has been unfairness in failing to raise it before the appellant at the hearing.  It has been suggested in the past and forms part of the suggestions in the Surendran guidelines that it is not the function of an Adjudicator in an adversarial system to raise matters which are not adverted to in the refusal letter “unless these are matters which are apparent to him from a reading of the papers, in which case these matters should be drawn to the attention of the Appellant’s representatives who should then be invited to make submissions or call evidence in relation thereto (Guideline 6)”. We accept that an appellant should not have unfairly taken against him matters which he could not reasonably have contemplated as being relevant to the issues for determination.  First, by that we mean not only the appellant’s own knowledge but also that which would be expected to be applied by professional lawyers representing him.  Thus, if a discrepancy or difference on which reliance is placed arises from some obscure point which is not obvious in the preparation of an appeal this may have some validity.  Where, for example, in combing through a series of statements after a hearing it is discovered that there are contradictions on certain points which have never been put to the appellant, and those points are themselves of a minor or peripheral nature rather than central to the whole basis of his case, we would accept that it would arguably be unsafe to arrive at adverse credibility findings on such a basis alone.  That is not, however, the case here in our judgment.  The Adjudicator has identified a number of issues, all of which in her view go to credibility, and all of which we consider to be points which are obvious on the face of the evidence.  As we have already noted, Mr Saldanha acknowledges that in the case of the first seven points taken.

12.	Secondly, It must not be forgotten that professional representatives have a discretion as to what evidence they will and will not lead before an Adjudicator or indeed any other judge.  If they choose not to lead certain matters in evidence which may provide difficulties for the claimant’s case, that is a proper matter for their professional judgment, but it does not mean that the failure to raise such an issue in oral evidence will result in it being an issue which cannot properly be taken into account in assessing the credibility of testimony against the totality of the evidence before the Adjudicator.  The point is aptly illustrated in the Opinion of Lord Carloway in the Court of Session in Mehmet Koca v SSHD delivered on 22 November 2002  and reported in full at Vol 7 No 4 of the Immigration Law Update published fortnightly by the Immigration Advisory Service.  He deals with the effect of lack of cross-examination on an Adjudicator’s task in some detail at paragraphs 28 to 37 of his Opinion. The general thrust is that there is no obligation on a Respondent’s representative to cross-examine and that this limits the frequently claimed “duty” for all matters to be put to a claimant. Lord Carloway puts it in the following terms:

“29. … cross-examination is normally exercised only where the witness has given evidence contrary to the party’s position and should be directed towards the undermining of discrediting of the witness’s reliability of credibility. It is not intended to provide a bonus to the party’s opponent by affording the opponent’s witness an opportunity to clarify or explain contradictions or deficiencies left after examination-in-chief. … A witness’s evidence may be so absurd or self-contradictory that no cross-examination is necessary or even desirable. … [The cross-examiner] does not require to go through a mechanical process of putting each aspect of his case to each of his opponent’s witnesses for their denial and possible comment. … On the other hand, if a party intends to develop a positive case of his own, which differs from that of his opponent, or intends to maintain that something which the witness said happened, did not occur for a given reason then it will often be necessary for such a case or reason to be put in cross-examination to witnesses ostensibly in a position to comment upon them. … In that regard it is part of the process of ensuring that proceedings are fairly conducted as between the parties by giving each an opportunity to address the other’s case. The requirement “to put” matters to an opponent’s witness in cross-examination should be seen in that limited context. It follows from this that I do not entirely agree with the views expressed by the Immigration Appeal Tribunal in Ezzi (supra), in that these views appear to impose a greater burden upon the cross-examiner than I consider to exist. …

31. Looking at the duties upon the Adjudicator to ensure a fair hearing in the absence of a representative from the Respondents should be done against the background that such a representative would not have been obliged to cross-examine on the HADEP discrepancy and that it is accepted that the proceedings before an Adjudicator are adversarial in nature. … In the context of the Adjudicator having to reach a decision on credibility, the question is to what extent must an Adjudicator search for, and if discovered, probe implausibility and discrepancy during the oral hearing.

32. Where there is a representative from the Respondent at the hearing, who is able to cross-examine, no doubt the Adjudicator will adopt the traditional passive role of the judge as someone who will only intervene when he feels a passage of a witness’s evidence requires “clarification”. That is a very limited role and does not permit a judge to set about “clarifying” evidence by taking positive action to explore contradictions in depth in the manner which a cross-examiner might choose to do. He may ask for explanations of any obvious ambiguities in testimony but should not go much beyond that. …

34. What seems to be being suggested is that, where there is no contradictor, an Adjudicator must nevertheless go further and scrutinise the paperwork in advance of a hearing in a manner which will enable him to compose a list of potential problem areas which might influence his ultimate decision on credibility. There are several problems with this approach. First, it would put an Adjudicator in the position of looking for defects in a claimant’s case before he has heard what the claimant has to say about it. Such an approach may not be conducive to arriving at a balanced decision. Secondly, it would thrust the Adjudicator into the role of inquisitor. Thirdly, the resultant “cross-examination” would be likely to be rightly criticised as displaying the very type of bias that was perceived by the Immigration Appeal Tribunal in MNM (supra). Although an Adjudicator may, when reading the papers in advance, be concerned about a particular matter and thereafter ask about it at the hearing, it is going much too far to say that he must look for all matters which might later concern him and must also put these matters to the claimant or his representative at the hearing. In looking at the fairness of the hearing, the Adjudicator took an entirely reasonable approach in asking the petitioner to address the matter of credibility. Having heard all that was to be said, it was for her to resolve the issue on all the material which had been presented to her. As Guideline 4 itself echoes, the Adjudicator is entitled to form a view on credibility on the basis of that material whether or not the claimant has addressed the issue and whether or not the Adjudicator has expressed a particular concern. …

37. Furthermore, in order to succeed on this ground, it is incumbent upon the petitioner to show that, had he been afforded an opportunity to explain … then his answer might have influenced the Adjudicator’s ultimate decision (Ahmed v SSHD (supra)).

This applies where there is a clear inconsistency in statements at different times as in  the case of the HADEP discrepancy with which Lord Carloway is dealing. But it is clearly intended to go further than that and to encompass other situations in which cross-examination would not have been appropriate or necessary had the Respondent been represented – for example, where the claim is so absurd as to preclude such necessity. The question of the improbability and absurdity of dealing with organs such as kidneys in a way which is irreconcilable with the claimant’s clear evidence seems to us to be such a case.

13.	If we are right in that view, then the only issue for our consideration is whether there is an error in the Adjudicator’s findings which would result in the appellant having a real prospect of success if the appeal were re-heard.  In considering that we are entitled of course to take into account the totality of the evidence before us, including the medical evidence as to storage of organs for transplant now helpfully supplied on behalf of the appellant. Even if we were wrong, however, in so categorising the “common knowledge” on which the Adjudicator placed reliance, the Appellant would still have to show that there was an explanation which he could have given to explain the timescale point taken against him. That he has signally failed to do as noted above. 

15.	The Adjudicator has given clear and cogent reasons why she did not find the core element of the appellant’s claim credible.  There is considerable force in Ms Sigley’s submissions that the reasons at paragraph 19 (a) to (g) of the determination are of themselves sufficient to support the adverse credibility findings, but, for the reasons which we have given above, we also consider that the reasoning at paragraph 19 (h) is sustainable. The appellant has not been unfairly disadvantaged in the way in which Mr Saldanha sought to put before us in his careful submissions. There is nothing in our view which adds to the Appellant’s case in the Adjudicator’s approach to the medical evidence at paragraph 19(i). At most, the report provided some corroborative evidence that the physical scars could be from causes consistent with the Appellant’s claims, but as the Adjudicator fairly observes the report does not say that they might not have resulted from other unconnected causes. Given the weight of the evidential basis on which the Appellant was found not to be credible in his core claims, we do not consider it arguable  that the corroborative weight of the medical report could have turned the balance in the Appellant’s favour even at the lower standard of proof applicable.

16.	It follows that in our judgment the Adjudicator’s findings are sustainable on the totality of the evidence and there is no basis for saying that her adverse findings should be re-visited by us.  

17.	For those reasons this appeal is dismissed.

J Barnes
Vice President