Indra Gurung v Secretary of State for the Home Department [IAT]
| Jurisdiction | England & Wales |
| Judgment Date | 14 October 2002 |
| Date | 14 October 2002 |
| Court | Immigration Appeals Tribunal |
Immigration Appeal Tribunal
Collins J (President) Dr H H Storey (A Vice-President), A Mackey Esq (A Vice-President)
M Braid for the appellant
Mrs E Grey for the respondent
Cases referred to in the determination:
McMullen v Immigration and Nationality ServiceECAS [1981] 9 Circuit 685 F 2d 1312.
re SK (Appeal 29/91) NZ Refugee Status Authority (17 February 1992).
Ramirez v Canada [1992] FC 306.
Gonzalez v Canada [1994] 2 FC 646.
O v Immigration Appeal Tribunal and Secretary of State for the Home Department [1995] Imm AR 494.
T v Secretary of State for the Home DepartmentUNK [1996] Imm AR 443: [1996] 2 All ER 865.
Tadic (7 May 1997).
R v Secretary of State for the Home Department ex parte RobinsonUNK [1997] Imm AR 568: [1997] 4 All ER 210.
Chahal v United KingdomHRC [1997] 23 EHRR 413.
Pushpanathan v MCIUNK [1998] 1 SCR 982: INLR 36.
Mukhtiar Singh v Secretary of State for the Home Department (unreported, 1999).
R v Uxbridge Magistrates Court and anr ex parte Adimi [1999] Imm AR 560.
Karanakaran v Secretary of State for the Home Department [2000] Imm AR 271.
Sivakumar [2001] EWCA 1196 (unreported).
Secretary of State for the Home Department ex parte Klodiana Kacaj [2002] Imm AR 213.
Minister for Immigration and Multicultural Affairs v SinghUNK [2002] HCA 7.
Ozer (unreported) (10922).
Amirthalingam (unreported) (11560).
Nanthakumar (unreported) (11619).
Arulendran (unreported) (11827).
Thayabaran (unreported) (12250).
Rajesh Gurung (unreported) (1371).
Amberber (unreported) (1570).
Karthirpillai (unreported) (2250).
Prakesh Sharma (unreported) (2943).
Hane (unreported) (3945).
Asylum citizen of Nepal member of Maoist group whether appellant fell within the exclusion clauses of the Refugee Convention the proper approach to be adopted by adjudicators. United Nations Convention relating to the status of refugees 1951 (Protocol 1967), art. 1F.
The appellant was a citizen of Nepal, whose application for asylum had been rejected by the Secretary of State. A special adjudicator dismissed his appeal on the basis that as a member of a terrorist organisation he was outwith the provisions of the Refugee Convention.
The Tribunal reviewed some of the settled cases and gave guidance to adjudicators on the proper approach in cases where the Convention's exclusion clauses appeared to be relevant.
Held
1. The general principles to be adopted were set out by the House of Lords in T.
2. In considering whether an appellant had committed a crime to bring him within the exclusion clauses a lower standard of proof than balance of probabilities applied.
3. The exclusion clauses looked essentially to previous conduct.
4. If it was apparent that an appeal raised issues under the exclusion clauses, an adjudicator could consider such issues before determining whether, absent a case under those clauses, an appellant had a claim to refugee status.
5. It was desirable for the Secretary of State to raise issues relating to the exclusion clauses in his letter refusing asylum.
6. Where an appellant was found to be outwith the Refugee Convention because of the effect of the exclusion clauses, an adjudicator would be obliged to consider the consequences under article 3 of the European Convention on Human Rights.
1. The appellant, a national of Nepal, has appealed with leave of the Tribunal against a determination of an 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.
2. 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 article 1F. The events of September 11, 2001 have made the need for clarity of approach as regards article 1F imperative.
3. 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 persons 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 article 1 of the refugee convention, September 2000. In addition to United Kingdom court* and Tribunal** cases dealing with article 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.
4. 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 film 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 five 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 five 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 in January 2001. He claimed he was still wanted in Nepal where the authorities were accusing him of being a Maoist.The Secretary of State's assessment
5. 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 assessment
6. The adjudicator's findings of fact were confused 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.
7. 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.
8. On the strength of these findings the adjudicator reached two distinct conclusions.
9. One was that the appellant fell under the exclusion clauses. Having set out the text of article 1F, he concluded:
The appellant frankly admits to having taken part in the...
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