Aung v Secretary of State for the Home Department

In an asylum appeal, an Immigration Appeal Tribunal’s acceptance of a factual event does not necessarily displace the adjudicator’s finding. The material question is whether the tribunal reached a materially different conclusion on the issue relevant to risk on return. Its determination must be read as a whole. Where it analyses pre-departure events, post-arrival political activity and the possible risk on return, the tribunal is not in error merely because it does not restate a separate combined assessment. A different result in another claimant’s case cannot assist where the evidential foundations differ.

The appellant, a citizen of Myanmar, arrived in the United Kingdom in July 2001 and claimed asylum. The Secretary of State refused the application, and an Adjudicator dismissed the appellant’s asylum and human rights appeal on 30 December 2002, rejecting his account as lacking credibility.

The Immigration Appeal Tribunal dismissed a further appeal on 18 August 2003. It accepted that the appellant might have been arrested and released on bail near the border, but regarded the incident as minor and non-political. It also rejected the claimed risk arising from his post-arrival protest activities and distinguished Win [2002] United Kingdom IAT O7008. The central issue was whether the Tribunal had displaced a material finding of the Adjudicator and failed to assess the combined significance of the evidence.

1. The appeal was dismissed. Lord Justice Maurice Kay delivered the judgment, with Lord Justice Longmore and Lord Justice Jonathan Parker agreeing.
2. The appellant’s principal ground rested on a misapprehension. The Immigration Appeal Tribunal’s statement that, unlike the Adjudicator, it was prepared to accept a reasonable likelihood of arrest and bail did not materially displace the Adjudicator’s conclusion. Both decision-makers treated the incident as minor and unrelated to political activity, and neither considered it capable of creating a risk of serious ill-treatment or persecution on return.
3. The Tribunal’s determination had to be read as a whole. It carefully analysed the pre-departure events, the appellant’s activities in the United Kingdom, the possibility that the Burmese authorities knew of or could identify him, and the possible risk on return. Its conclusion was not vitiated by a failure to consider those matters in combination.
4. The Tribunal was entitled to distinguish Win [2002] United Kingdom IAT O7008. The success of that appeal was attributed to the combination of anti-government activity in the United Kingdom with an adverse record in Burma, including imprisonment. On the findings in the present case, the appellant had no comparable record and was not reasonably likely to be connected with the crowd outside the Burmese Embassy.
5. A successful appeal by the appellant’s companion could not assist him because the evidence in the two cases was different. The appeal was dismissed, with detailed assessment of costs.

• Court of Appeal (Civil Division) — On 29 March 2004, dismissed the appeal from the Immigration Appeal Tribunal. [2004] EWCA Civ 425
• Immigration Appeal Tribunal — Dismissed the appellant’s appeal on 18 August 2003.
• Adjudicator — Dismissed the appellant’s asylum and human rights appeal on 30 December 2002.
• Secretary of State for the Home Department — Refused the asylum application on 22 August 2001.