R (on The Application of K (A Child)) v Leeds Youth Court
| Jurisdiction | England & Wales |
| Judge | MR JUSTICE ELIAS |
| Judgment Date | 07 February 2001 |
| Neutral Citation | [2001] EWHC 117 (Admin) |
| Docket Number | CO/3118/2000 |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 07 February 2001 |
[2001] EWHC 117 (Admin)
IN THE HIGH COURT OF JUSTICE
ADMINISTRATIVE COURT
QUEEN'S BENCH DIVISION
St Dunstan's House
Fetter Lane
London
Mr Justice Elias
CO/3118/2000
MISS NICOLA BRAGANZA (instructed by Messrs Ole Hansen & Partners,
London SE11 6SF) appeared on behalf of THE CLAIMANT
MISS ELISABETH LAING (instructed by the Treasury Solicitor) appeared
on behalf of THE DEFENDANT
Wednesday 7 February 2001
The claimant in this case applies for judicial review of the decision of the Immigration Appeal Tribunal on 19 June 2000, in which the tribunal refused the claimant permission to appeal from the determination of the special adjudicator of 7 June 2000. The special adjudicator had dismissed the claimant's appeal against the refusal of his claim for asylum by the Secretary of State.The claimant is from Peru. He arrived in the United Kingdom on 20 August 1994. Initially he asked for permission to remain for two weeks as a visitor. He was interviewed further on the following day and, after having been interviewed for some 90 minutes, he made a claim for political asylum.
The basis for his claim was essentially as follows. He said that in 1988 he had started a dance group in Peru. It had become popular and had gained a high profile in the various communities and cities throughout Peru. Subsequently the group had become infiltrated by members of the Sendero Luminoso ("Shining Path"), which is a revolutionary group who wish to overthrow the Peruvian authorities. The claimant said that the Shining Path used the dance group as a platform for its propaganda throughout Peru. He was forced to co-operate with the Shining Path after receiving threats to his life if he refused to do so. He said that on two occasions he had to take medicines into the Andes for Shining Path.
Around April 1994 he confided his fears to a school friend and disclosed to him the names of the three members of the Shining Path whom he considered had infiltrated the group. That friend, it turned out, was working for the National Anti-Terrorist Department and wanted the claimant to act as an informer. The friend told the claimant that information given would be treated in confidence, but the claimant did not believe that.
In July 1994 he was asked again to carry out a mission on behalf of Shining Path, again under the threat of death if he refused to do so. It was in response to that background that he fled from Peru.
The claimant's application was considered by the Secretary of State. He was refused asylum by a letter dated 29 March 1996. The Secretary of State did not accept the veracity of his story.
The claimant appealed to the special adjudicator. His first appeal was heard in his absence on 18 February 1999. An appeal to the IAT was successful and the matter was remitted to be heard by a second special adjudicator. That appeal was initially listed for 13 April 2000, but was adjourned for lack of time and relisted on 4 May. The claimant was then represented, but the Secretary of State's presenting officer was not. Notwithstanding that, the appeal went ahead.
The second special adjudicator's determination was promulgated on 7 June 2000. He dismissed the appeal but indicated in his concluding paragraph that the Secretary of State might wish to consider whether to grant leave on an exceptional basis, given the evident medical and psychological difficulties which the claimant faced. That reconsideration has not, I am told, yet taken place.
The special adjudicator set out in some detail the material that was before him. It included a record of the interview of the claimant when he first arrived on 22 August 1994, two written statements by the claimant (including one made specifically for the second hearing before the special adjudicator), certain medical reports, a report from the United Nations High Commissioner for Refugees relating to Peru, dated 11 January 1999, and another report from that same body on internally displaced persons, dated 1 April 1996. There were also other background materials, including an expert's report by Mr Stuart Turner, dated 18 December 1996, in which he had examined discrepancies and delays and the reasons for them in the histories presented by asylum seekers.
It was urged upon the special adjudicator that he should bear in mind the difficulties which those seeking asylum faced when they first came to a new country and had to explain their stories.
The special adjudicator set out in some detail the evidence which was before him. The claimant had not been cross-examined, but he had given limited oral evidence to supplement the written statements that he had made.
The special adjudicator concluded, in essence, that the claimant had not given a truthful account of the reasons why he left Peru. In his determination and reasons the special adjudicator expressed that conclusion as follows:
"6.18 Notwithstanding the new material in the witness statements the appellant has submitted, the essence of the story has not changed. Detail has been added but fundamentally his complaint throughout is that of threat of persecution by Shining Path. Having regard to the background evidence, it is difficult for me to reconcile the appellant's story with the activities of this brutal group of terrorists. The extracts from that evidence which I have made above are illustrative of a ruthless approach which did not occur in the case of the appellant or his immediate family all of whom are still well. The abandonment by the appellant of the dance group did not seem to invite the wrath of Shining Path except with regard to closing the group down and despite their threats which the evidence shows were carried out more often than not the appellant was able to live safely in Lima for eight months after moving into the furniture business with his brothers. I have no satisfactory explanation how the Shining Path were aware of the appellant having told the police of his fears and having regard to the reputation of this movement, I think it unlikely that he received only the threats claimed and nothing more serious. In assessing the appellant's credibility, I do think some significance attaches to the fact that the appellant applied for permission to enter as a visitor on arrival and only after some time did he declare his claim for asylum.
6.19 Having carefully reviewed all the evidence before me I am not satisfied that the appellant had the direct involvement with Shining Path which he claimed. I think that it is likely that his larger family were affected, in particular his mother's relatives in Ayacucho where Shining Path conducted their campaign of terror. I am sure that in the early 1990s every citizen of Peru was fearful of the spread of activities by the Shining Path and the brutal manner in which the authorities sought to deal with this problem with the consequent human rights abuses. However, I do not consider that the appellant [was] singled out as claimed and his account is not one I am able to accept even on the lower standard of proof in this appeal.
6.20 As to the detail added in the subsequent statement, in particular the requirement by the Shining Path for the appellant to take medicines to Ayacucho, a long and difficult journey, I have found no support in the objective evidence of this sort of activity. Indeed I think it unlikely the Shining Path would choose the appellant who openly admits he was a shy and timid person to undertake such an important mission.
6.21 I readily accept that the Shining Path at the time the appellant left and possibly less so now were a force which the authorities were unable to control and there was not a sufficiency of protection available for members of the public against them. Although this point is academic in the light of my findings I do not see how this movement could be considered as 'agents of persecution' as the people who suffered at their hands did not do so for a Convention reason since the difficulties were experienced by the population at large.
6.23 By way of conclusion and somewhat reluctantly, notwithstanding the lower standard of proof which applies in asylum appeals, I do not consider the appellant has given a truthful account of the reasons why he left Peru. His account is both inherently, and by reference to the background evidence, extrinsically implausible. I do not consider that he left Peru with a well-founded fear of persecution nor were he to return today, any fears he may have would be well-founded. The return of the appellant to Peru therefore would not place this country in breach of its obligations under the Geneva Convention."
The appeal to the Immigration Appeal Tribunal was essentially on three grounds; indeed, they are the same grounds that have been urged before me as the basis for setting aside the refusal of leave by the Immigration Appeal Tribunal. Putting them succinctly, the first and perhaps principal ground is that the special adjudicator failed properly to assess the claimant's credibility. It is said that in various ways (to which I will make reference in a moment) he did not give proper consideration either to the background evidence or to the particular circumstances and difficulties faced by the claimant when giving his story to the authorities.
Second, it is said that the special adjudicator erred in his comment at paragraph 6.22 that Shining Path could not be treated as "agents of persecution". Miss Braganza, counsel for the claimant, in a forceful and spirited submission, has, however, accepted that in truth this second ground has no significance if she fails on the first ground....
To continue reading
Request your trial
-
O'Brien v Mr. Justice Michael Moriarty
...COTSWOLD DISTRICT COUNCIL EX PARTE BARRINGTON PARISH COUNCIL 75 P & CR 515 R (PORTLAND PORT LTD) V WEYMOUTH & PORTLAND BOROUGH COUNCIL 2001 EWHC ADMIN 117 R V DERBYSHIRE CO COUNCIL EX PARTE WOODS 1997 JPL 958 GORMAN V MIN ENVIRONMENT 2001 1 IR 306 CUSSEN, STATE V BRENNAN 1981 IR 181 EUROP......