Danian v Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judgment Date | 28 October 1999 |
| Date | 28 October 1999 |
| Court | Court of Appeal (Civil Division) |
Court of Appeal
Nourse, Brooke, Buxton LJJ
N Blake QC and Miss S Harrison for the appellant
S Kovats for the respondent
Cases referred to in the judgments:
R v Secretary of State for the Home Department ex parte PuttickELRUNK [1981] 1 QB 773: [1981] 1 All ER 776.
A v SwitzerlandHRC [1986] 46 D & R 257.
Viraj Mendis v Immigration Appeal Tribunal [1989] Imm AR 6.
Chan Yee Kin v Minister for Immigration and Ethnic AffairsUNK [1989] 169 CLR 379.
R v Immigration Appeal Tribunal ex parte B [1989] Imm AR 166.
R v Registrar-General ex parte SmithELRUNK [1990] 2 QB 253: [1990] 2 All ER 170.
Somaghi v Minister of Immigration, Local Government and Ethnic AffairsUNK [1991] 31 FCR 100.
Re HB (Refugee Appeal 2254/94).
Gilgham v Immigration Appeal Tribunal [1995] Imm AR 129.
Chahal v United KingdomHRC [1996] 23 EHRR 413.
Mbanza v Secretary of State for the Home Department [1996] Imm AR 136.
Khan v Minister of Immigration, Local Government and Multicultural Affairs [1997] 47 ALD 19.
Opel Austria Gmbh v Council of the European Union [1997] ECR II70.
lyadurai v Secretary of State for the Home Department [1998] Imm AR 470: [1998] INLR 472.
Danian v Secretary of State for the Home Department [1998] Imm AR 462.
R v Secretary of State for the Home Department ex parte Adan and ors [1999] Imm AR 521: [1999] INLR 362.
Adan v Secretary of State for the Home DepartmentELR [1999] AC 293: [1998] Imm AR 338.
Mohammed v Minister for Immigration and Multicultural Affairs [1999] FCA 868.
Asylum claim to be a refugee sur place activities in the United Kingdom that would have brought appellant to the notice of his government whether the appellant had acted in good faith whether outwith the protection of the Convention. Vienna Convention on the law of treaties arts. 31.3, 32.
Appeal by a citizen of Nigeria against the determination of the Tribunal which had dismissed his appeal from the determination of an adjudicator in turn dismissing his appeal against the decision of the Secretary of State to refuse him asylum and to deport him to Nigeria as a long-term overstayer.
The appellant claimed to have become a refugee sur place in consequence of his involvement in a pro-democracy movement in the United Kingdom. A Tribunal of three legal members with the President, His Honour Judge Pearl, as chairman, concluded that the appellant had acted in bad faith and his activities fell within the broad category of a cynical tailoringso as to create a false claim for refugee status. The Tribunal concluded he was therefore outwith the Convention. It did not in consequence consider the evidence the appellant put to it to demonstrate that he had a well-founded fear of persecution in Nigeria.
Before the Court of Appeal counsel argued that the Tribunal had adopted the wrong approach. The Convention in terms did not exclude those held to have acted in bad faith and the Tribunal had erred in failing to determine in the light of the evidence submitted, whether the appellant had a well-founded fear of persecution.
Held
1. There was no provision in the Convention for the exclusion from its protection of those who had acted in bad faith, albeit it would be more difficult for those found to have acted in bad faith to show a genuine well-founded fear of persecution.
2. The Tribunal had erred in not determining whether the appellant had a genuine fear of persecution and whether that fear was well-founded. In that regard, it had erred in failing to consider the additional evidence put to it.
Brooke LJ: This is an appeal by Thomas Danian against a determination of the Immigration Appeal Tribunal on 9 June 1998 when it dismissed his appeal from a decision of a special adjudicator dated 18 November 1997 who had dismissed his appeal against the refusal by the Secretary of State on 26 August 1997 to allow his claim for asylum.
The matter has a long history. Mr Danian is now 48. He was born in Bendel State, in Southern Nigeria, in May 1951. He has told the immigration authorities that in 1978 he had a job as a television producer in Lagos on a programme called Youth Forum but because he was a southerner he lost that job and was demoted to being a scriptwriter. He has said that northerners regarded some of his writings as treasonable, and that in 1981 he was arrested and detained by soldiers, and that he was subsequently interrogated and ill-treated. He managed to escape, and was treated in hospital before seeking refuge with an uncle in another part of Nigeria. He then says he got a job with Nigerian External Communications, for whom he was involved in radio and TV programmes. He was unable to produce any of his scripts. He described how he had dramatised some of his poems in which he had tried to express the feelings of a man who was oppressed in his own country. He has said that in March 1985 he was arrested at his home and managed to escape. He arrived in this country on 15 April 1985, and save for one day in July 1997 he has remained here ever since.
As I will relate, in 1995 a special adjudicator was not willing to believe what Mr Danian told him about a later period of his history, and since Mr Danian produced no corroborative evidence, the adjudicator was not willing to accept what Mr Danian told him about his history in Nigeria or the reason why he left Nigeria.
When he arrived in this country, he was originally granted leave to enter for one month as a visitor, but thereafter he was granted permission to stay as a student, and this permission was extended from time to time until it finally expired on 3 March 1987.
On the previous day he had made a further application for leave to remain as a student. This application was never formally determined, and it was eventually withdrawn on 24 August 1993, more than six years later.
On 6 June 1989 he applied for exceptional leave to remain. On 18 September 1989 he was convicted at Tower Bridge Magistrates' Court of working in breach of the conditions of his leave to remain as a student and recommended for deportation. The following day he applied for leave to remain in order to establish a voluntary organisation. On 24 September 1990 he submitted an application for asylum, and in December 1990 he completed a questionnaire form in connection with this application.
There was then a two year gap in the history. This was ended on 6 April 1993 when he was interviewed in connection with his asylum claim. The basis of this claim was his opposition to the military regime in Nigeria which was dominated by people from Northern Nigeria.
It is worth mentioning at this stage that on 12 June 1993 the first presidential elections took place in Nigeria since 1981, and Chief Abiola, the leader of the Social Democratic Party, was considered to be the winner. 11 days later, however, this election was annulled, and in November 1993 military rule was reinstated in Nigeria. All democratic institutions were dissolved and political parties banned.
On 26 September 1994 Mr Danian's application for asylum was refused, and on 13 March 1995 a deportation order was signed. This was served on 9 May 1995, and on the same day his long-standing application for leave to remain to establish a voluntary association was also refused. The Secretary of State also refused his implied application to revoke the deportation order. Mr Danian appealed, but on 20 November 1995 a special adjudicator dismissed his appeal, and the following month the Immigration Appeal Tribunal refused leave to appeal.
Nothing daunted, on 10 April 1996 Mr Danian applied for indefinite leave to remain on account of his long period of residence in this country (now over 10 years) and his need to maintain contact with his seven-year-old daughter, who lived with her mother pursuant to a court order to that effect. This application was refused on 28 June 1996.
On 4 July 1997 he was deported. He destroyed his airline ticket in flight, and when he landed in Amsterdam, the Dutch authorities returned him to London, where he claimed asylum on arrival. He was interviewed two days later, and his claim for asylum was refused on 26 August 1997. He appealed, and on 18 November 1997 a special adjudicator dismissed his appeal.
On 8 December 1997 a doctor (Dr Horder) examined him in Rochester Prison on behalf of the Medical Foundation for the Care of Victims of Torture. He gave her an account of the brutal treatment he said he had received in 1981. The doctor examined him and found a number of scars on different parts of his body, including a 3cm linear scar on his right scrotum, and expressed the opinion that from their appearance, orientation and siting they appeared to be non-accidental. She said the scars were compatible with his statement and his description of assault. She also said that a scar area on the sole of his right foot was likely to have been caused when the stepped on a sharp object. Mr Danian had told her that during his escape from arrest in 1985 he had trodden on glass and cut his foot, for which he had received hospital treatment.
His efforts to seek leave to appeal against the adjudicator's decision ultimately proved successful in April 1998, after this court had given him leave to challenge an earlier refusal of leave to appeal. He appeared in person before the Immigration Appeal Tribunal on 11 May 1998. There is an unresolved mystery, to which I will refer later, as to whether he attempted to show the Tribunal Dr Horder's report. On 9 June 1998 the Tribunal promulgated its determination dismissing his appeal. He now appeals to this court by permission of Stuart-Smith LJ, granted on 19 November 1998. He has been on bail since that time.
After this outline sketch of the history, it is now necessary to look in rather more detail at the three judicial determinations which have been made in this case, and at some of the earlier events in the history.
The...
To continue reading
Request your trial
- Minister for Immigration and Multicultural Affairs v Farahanipour
- Omar v Minister for Immigration and Multicultural Affairs
-
R (J) (Sri Lanka) v Secretary of State for the Home Department
...asylum or article 3 ECHR claim even in the extreme case of an asylum or ECHR claimant acting in bad faith. See for example Danian v SSHD [2000] Imm AR 96 which concerned a repeat and abusive claimant where the Court of Appeal found that the same scrutiny must be applied to a bad faith appli......
-
AA v Secretary of State for the Home Department;
...95 This part of the case is closely connected with Mr Burnett's last argument in the AA appeal, which engages the decision of this court in Danian [2000] Imm AR 96. We find it convenient to deal with Danian in this present context. 18 The third argument: the Danian case 96 Danian was a Nige......