Malik, R (on the application of) v Secretary Of State For the Home Department

On an appeal from an immigration tribunal, the question is whether its conclusion was perverse or one which no reasonable tribunal could have reached. Differences in factual assessment between tribunals do not ordinarily create an error of law. Each asylum claim depends on its own facts, including the authorities’ actual knowledge of and response to the claimant’s activities. Opposition to aspects of state policy, or advocacy of women’s rights, does not by itself establish a real risk of persecution. An incorrectly expressed passage will not invalidate a determination if, read as a whole, the tribunal applied the correct test and its conclusion was reasonably open to it.

The applicant, a Sudanese lawyer and women’s rights advocate, sought asylum in the United Kingdom. The adjudicator rejected her claim that she had a well-founded fear of persecution in Sudan, and the Immigration Appeal Tribunal upheld that decision on 15 July 2002.

She renewed an application for permission to appeal, arguing that her past activities, family background, treatment by Sudanese authorities and activities in the United Kingdom made the tribunal’s conclusion irrational. The central issue was whether there was a real prospect of showing that no reasonable tribunal could have reached the tribunal’s conclusion.

1. Application dismissed. The renewed application for permission to appeal was refused.
2. The applicable appellate threshold was whether the Immigration Appeal Tribunal had reached a conclusion which was perverse or which no reasonable tribunal could have reached. The tribunal was the judge of fact, and a head-on challenge to its factual assessment was not maintainable merely because another tribunal might have evaluated the evidence differently.
3. Each asylum claim depended on its own facts. The applicant’s treatment by the Sudanese authorities, who knew of her activities and had permitted her to enter and leave Sudan without persecution, was a reliable guide to the likely future risk unless there was evidence of a real change in their attitude. Siddeig v Secretary of State for the Home Department, a case involving materially different facts, did not assist the applicant.
4. The tribunal was entitled to distinguish opposition to particular aspects of state policy, and support for women’s rights and legal activities, from being regarded as an enemy of the state in a manner giving rise to persecution. The assessment remained dependent on how the authorities were likely to respond.
5. The tribunal had expressed itself inappropriately when stating that questioning on return would probably result in release. That would have been an erroneous approach if it had formed the essence of the decision, as illustrated by Demirkaya v SSHD [1999] INLR 441. Read as a whole, however, the determination applied the correct test and dismissed the claim for the broader reasons set out in it.
6. Danian v SSHD [2000] IAR 96 concerned different facts and a different issue concerning activities undertaken after departure from the home country. That issue did not arise on the applicant’s case.

• Immigration Appeal Tribunal: On 15 July 2002, upheld the adjudicator’s dismissal of the applicant’s asylum claim.
• Court of Appeal (Civil Division): Refused the renewed application for permission to appeal. Lord Justice Latham agreed with Lord Justice Mance.