Gurung v Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judge | DR H H STOREY |
| Judgment Date | 14 October 2002 |
| Neutral Citation | [2002] UKIAT 4870 |
| Court | Immigration Appeals Tribunal |
| Date | 14 October 2002 |
[2002] UKIAT 4870
IMMIGRATION APPEAL TRIBUNAL
Mr Justice Collins (PRESIDENT)
Dr H H Storey
Mr A Mackey
Gurung (Refugee exclusion clauses especially 1F (b)) Nepal CG *
The appellant, a national of Nepal, has appealed with leave of the Tribunal against a determination of Adjudicator, Mr M E Curzon Lewis, dismissing the appeal against the decision of the Secretary of State giving directions for removal following refusal to grant asylum. Mr Mark Braid of Counsel instructed by Gillman-Smith Lee Solicitors appeared for the appellant. Mrs E Grey of Counsel instructed by Treasury Solicitors appeared for the respondent.
Although deciding to remit this appeal we have starred it for the purpose of giving guidance to adjudicators on the proper approach to the Refugee Convention's Exclusion Clauses at Art 1F. The events of September 11, 2001 have made the need for clarity of approach as regards Art 1F imperative.
We are grateful to both Counsel for their careful submissions, including those sent on our invitation post-hearing. Largely due to their efforts we have been able to consider the relevant issues in the light of a very considerable body of material including: The Exclusion Clauses: Guidelines on their Application, UNHCR, Geneva, December 1996; Lisbon Expert Roundtable, Global Consultations on International Protection May 2001 – Summary Conclusions: Exclusion from Refugee Status; articles from the Special Supplementary Issue of the International Journal of Refugee Law, Vol 12, 2000 on Exclusion from Protection; the EU Commission Working Document on the Relationship between Safeguarding Internal Security and complying with International Protection Obligations and Instruments, COM (2001) 743 final, Brussels, 5.12.2001; UNHCR's, ECRE's and Amnesty International's comments on the same; the Proposed Council Directive on minimum standards for the qualification and status of third country nationals and stateless person as refugees or as persons who otherwise need international protection COM (2001) 510 final Brussels 12 September 2001; and ECRE Position on The Interpretation of Art 1 of the Refugee Convention, September 2000. In addition to UK court 1 and Tribunal 2 cases dealing with Art 1F-related issues, we were also referred to leading cases from Canada, the Netherlands, New Zealand, the United States and a very recent Australian High Court judgment.
The account the appellant gave was as follows. Now aged 33, he came from a farming family who lived in a village in Kaki district, West Nepal. Before his departure in January 2001, he had been a relatively successful movie actor. He joined the Nepalese Communist Party (Maoist) (hereafter CPN) in 1997 if not earlier and was also a member of that party's farmer-oriented Kissan Movement. He attended meetings, rallies and demonstrations up to 5 times a month. Most of these were to protest about government corruption and to demand land reform. In 1996 he was involved in a raid on Land Registration offices at Chawil. He was one of 20 who protested against corruption by throwing stones and chanting. In August 1999 his brother, Mohan, who had also joined the Maoists, had been killed when police invaded a public meeting in Besi Sahar Lanjung and fired indiscriminately. In December 1999 the appellant was arrested and detained for 5 months in Pokhara Central Jail. During his detention he was ill treated, the police pressurising him to reveal the names of leaders, location of training camps and future plans of the Maoists. He was released in April 2000 on bail of 400,000 Nepalese rupees on condition that he was never again to support the Maoists. However his work for the Maoists continued. On 10 September 2000 he was arrested for a second time, again experiencing interrogation and ill
treatment. In December 2000 his father procured his release with the help of a police inspector friend; a bribe was also paid. He was told he must leave the country within 25 days or suffer the same fate as his brother. With the help of an agent, he left Nepal on January 2001. He claimed he was still wanted in Nepal where the authorities were accusing him of being a Maoist.The respondent in his Reasons for Refusal letter did not believe the appellant. He did not find credible the account of two detentions, primarily because of its lack of detail. He also found implausible the appellant's claim to have been released on condition he leave Nepal soon after. He saw no good reason for the appellant claiming asylum late. However, in the alternative he concluded that, even accepting the appellant's account, he would at most face a risk of prosecution, not persecution. His reasoning in this regard was that the CPN (Maoist) party was an illegal, armed revolutionary movement which had openly admitted it has used, and would continue to use, violence in order to achieve its goals. He wrote:
“The Secretary of State considered that were you an active member of such an armed organisation which is fighting to overthrow the elected Nepalese state it is likely that the Nepalese authorities might have a legitimate interest in you. However, he considered that this would be on account of your actions as a member of an illegal armed revolutionary organisation rather than any political opinion you expressed. The Secretary of State considered that you have expressed a fear of prosecution, not persecution…”
The adjudicator's findings of fact were jumbled and incomplete. On the one hand he rejected the appellant's credibility wholesale. On the other hand he appeared to accept the appellant had been involved with the Maoists even before 1997 and, albeit doubting he had heard the full truth about the appellant's account of his release from his second period of detention, he found his claim to have been detained twice ‘quite possible’. He made no findings, however, on whether during these detentions the appellant was ill treated and interrogated. He speculated whether the appellant, despite claims to the contrary, had had charges brought against him, but then concluded:
“I do not know why no charges were ever brought against the appellant but clearly on his own admission, he was involved in terrorist activities and he has produced an article from Janamat [a Nepalese publication] to prove it.”
This conclusion followed on from his earlier observation that, when questioned about the extent of his knowledge of the fact that the Maoists were engaged in terrorist activities, the appellant had said he knew the Maoists were an illegal terrorist organisation.
On the strength of these findings the adjudicator reached two distinct conclusions.
One was that the appellant fell under the Exclusion Clauses. Having set out the text of Art 1F, he concluded:
“The appellant frankly admits to having taken part in the raid on the Land Registration Offices in 1996. Janamat records him as having been involved in a subsequent raid on the Kathmandu Tax Office. He is not a person who should be considered to be deserving of international protection under the Refugee Convention”.
The other was that the appellant did not qualify under the Inclusion Clauses. Citing paragraph 60 of the 1979 UNHCR Handbook, which in the context of dealing with the prosecution/persecution issue acknowledges that sometimes a person fearing prosecution or punishment can have a well-founded fear of persecution, he concluded at paragraph 56:
“In the present case, whatever the deficiencies in the police, the fact remains that this appellant has been engaging in anti-state activities, for which he is properly liable to prosecution. He claims that no charges have been brought against him, that (sic) I do not necessarily believe his evidence about that. In my judgment this appellant has fled from Nepal because he fears prosecution. He does not qualify for asylum under the Refugee Convention”.
The adjudicator also addressed the appellant's human rights grounds of appeal which made mention of breaches of articles 2,3 and 6 of the ECHR. But, in contrast to the approach he took in relation to the asylum claim, he did not conduct any analysis of them in the alternative: he simply relied on a ‘want of credibility’.
In his appeal to the Tribunal the appellant relied upon a number of points. Firstly he challenged the adjudicator's adverse credibility findings, in particular his failure to accept that the two incidents mentioned by the appellant – one at the Tax Office and one at the Land Registry offices – were one and the same. He criticised the adjudicator's rejection of credibility for relying unduly on a disbelief in the account he had given of the circumstances of his release, an account shown by the objective country materials to happen in some instances. Secondly he contended that, taking account of the entirety of the prosecution process likely to face a member of the Maoist Party in Nepal currently, the adjudicator was wrong to try and distinguish the instant case from the type of situation considered by the Tribunal in Rajesh Gurung (01/TH/1371) which found that this process would entail persecution. He pointed to evidence indicating that the courts are inefficient and susceptible to political pressure and corruption, that the authorities target Maoists for arbitrary detention, torture and beatings in a climate of impunity and that there has been a worsening of the situation in Nepal with the declaration in November 2001 of a state of emergency.
The appellant also raised a number of criticisms of the adjudicator's approach to the Art 1F issues. These can be classified into failure to deal properly with inclusion issues on the one...
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