R (RUSHDI MOHAMAD) and an Immigration Adjudicator
| Jurisdiction | England & Wales |
| Judge | Mr Justice Munby |
| Judgment Date | 29 November 2002 |
| Neutral Citation | [2002] EWHC 2496 (Admin) |
| Docket Number | Case No: CO/3908/2001 |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 29 November 2002 |
[2002] EWHC 2496 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEENS BENCH DIVISION
ADMINISTRATIVE COURT
The Honourable Mr Justice Munby
Case No: CO/3908/2001
Mr Stephen Vokes and Ms Glenda Vencatachellum (instructed by French and Company) for the Claimant
Mr Stuart Catchpole QC and Mr Robin Tam (instructed by the Treasury Solicitor) for the Secretary of State for the Home Department
The claimant is an asylum seeker from the Kurdish Autonomous Area ("the KAA") in northern Iraq who challenges a decision dated 27 July 2001 of the Adjudicator, Mr P M Petherbridge. No appeal lies to the Immigration Appeal Tribunal. The Secretary of State for the Home Department had refused the claim for asylum in a decision letter dated 10 January 2001 and certified the case under both paragraph 9(4)(a) and paragraph 9(5)(a) of Schedule 4 to the Immigration and Asylum Act 1999. The Adjudicator dismissed the claimant's appeal and upheld both certificates.
The claimant's application seeking permission to proceed with his claim for judicial review was issued on 1 October 2001. It came before me on the papers on 5 December 2001 when I refused permission, observing that:
"The Adjudicator was fully entitled to come to the findings he did and to express himself as he did."
Permission was granted on a renewed oral application heard by Mitchell J on 28 January 2002.
The substantive matter was listed for hearing before me on 14 November 2002, the Administrative Court Office having overlooked the fact that I was the judge who had originally refused permission. The normal practice, as I understand it, is that substantive applications are not usually listed in such cases before the same judge. I brought this matter to the attention of the parties at the outset of the hearing. Both Mr Stephen Vokes, on behalf of the claimant, and Mr Stuart Catchpole QC, on behalf of the Secretary of State for the Home Department, indicated at once that they had no objection to my continuing to hear the matter. I should add that I have absolutely no recollection of having dealt with the matter in December 2001 and that in the event the ambit of the claimant's attack on the Adjudicator's decision has been significantly elaborated since then.
The basis of the claimant's case was summarised by the Adjudicator in paragraphs 7–9 of his determination and reasons:
"In his evidence before me the appellant has stated that he met a girl, Soad Abdula in 1993. He then had a car which he used as a taxi. The girl was from a family who were members of the Islamic movement. They did not agree with their daughter meeting with the appellant. The appellant and the girl had to make covert arrangements to meet which was usually at the house of a friend, Mohabad.
On an occasion that the appellant went to a music festival with his girlfriend, he was seen with her by the girlfriend's brother. The brother shot at the appellant but he managed to escape and return to his house. A few days later he was approached by 4 Kurdistan Democratic Party police who pointed a rifle at him and arrested him. He was taken to a police station and put in a cell. He was told that he had been arrested for taking his girlfriend away by force. Shortly after that he was convicted of having taken the girl away by force and sentenced to two years imprisonment.
He says that the detention by the police and his imprisonment happened in 1998. He thought that the incident when he had been shot at by her brother was sometime in 1995/1996 but he could not recall the exact date. He left prison in 1999 on an amnesty granted during Ramadan. The appellant left his home village and went to a village in the mountains. His girlfriend managed to get a message through to him that if he returned to his home village he would be killed. It was then that he decided to leave Iraq and obtained through his uncle a sum of 4,800 American dollars to pay an agent for him to be removed from Iraq. He travelled out of Iraq via Turkey and France eventually arriving in the United Kingdom in November 2000."
The Adjudicator dismissed the claimant's appeal in trenchant terms, saying in paragraph 14:
"I have rarely, if at all, come across a more vacuous claim for asylum as is presented on behalf of this appellant. The appellant's evidence is, in any event, riddled with inconsistencies and not credible."
The Adjudicator explained in paragraphs 14–17 why he had come to that view.
The heart of the Adjudicator's reasoning is to be found in paragraphs 17–20:
"The appellant's story and chronology are not credible. In any event the appellant has failed to establish a Convention reason and he has not been able to establish in his own evidence any fear of persecution from the Iraqi government or authority were he to be returned to Iraq. There is no suggestion of the appellant having been threatened or attacked in the past for any other reason than that he had an association with a girl with which the girl's father did not approve. This is putting it at its best so far as the appellant is concerned for I do not consider it likely, if the relationship that the appellant had with the girl had lasted for the length of time as suggested by him, that steps would not have been taken much earlier during the course of the association for the family to have tried to put a stop to it …
With regard to the objective evidence, it is noted that the Islamic movement of Iraqi Kurdistan (IMIK) of which the girlfriend's father was a member makes up the third largest political group in Northern Iraq and is influential in areas where the appellant would be associated with. However, there are other parts of Northern Iraq controlled by the Patriotic Union of Kurdistan which there would be no difficulty in the appellant going to to avoid any possible difficulty with IMIK.
There was no objective evidence to suggest that the appellant would face any difficulty if returned to Iraq as a failed asylum seeker.
I am satisfied that from the evidence there is no possible basis upon which the appellant's asylum appeal could succeed. His fear, if he were to be returned, is that of his girlfriend's father and possibly her brother. This does not have any connection with any of the Convention reasons."
In paragraphs 21–23 the Adjudicator explained why he was upholding the certificates, commenting in paragraph 23, in relation to the claimant's Human Rights Act claim:
"I can find no evidence to suggest that the appellant would be subjected to torture inhuman or degrading treating or punishment by public authority as defined in the Convention. The appellant's problem lies with his girlfriend's father and possibly her brother but these are domestic matters of which the Human Rights Act can afford him no assistance. Accordingly his appeal in respect of breach of Article 3 has to be refused."
It is important to note that, from beginning to end, there is no challenge in the present proceedings to the Adjudicator's adverse findings on credibility. Nor could there be. The Adjudicator had seen and heard the claimant give evidence, and the claimant had every opportunity to persuade the Adjudicator, if he could, that there were proper explanations for the discrepancies between the various stories which he was telling. He failed to do so. There is no possible reason for disturbing the Adjudicator's decision on credibility, nor his findings of primary fact.
It is also important to note that the Adjudicator was plainly correct in finding that, even if the claimant had such a fear, his fear was a fear of his girlfriend's father and brother, and not of persecution for a Geneva Convention reason. The Adjudicator put the point this way in paragraphs 17 and 20, passages which I have already set out but which bear repeating:
"There is no suggestion of the appellant having been threatened or attacked in the past for any other reason than that he had an association with a girl with which the girl's father did not approve. That is putting it at its best so far as the appellant is concerned. … His fear, if he were to be returned, is that of his girlfriend's father and possibly her brother. This does not have any connection with any of the Convention reasons."
That finding is unimpeachable.
As Mr Catchpole QC correctly submits, it follows necessarily from this that, as a matter of fact:
i) The Claimant does not have a fear of persecution (and certainly does not have a fear of persecution for a Geneva Convention reason) in his home area in the KAA.
ii) The claimant would not be at risk of torture or other ill-treatment contrary to article 3 of the European Convention if he was returned to the KAA.
On that basis, as Mr Catchpole submits, and I agree, both the claim to asylum and the human rights claim must inevitably fail. That is clearly demonstrated by Canaj v Secretary of State for the Home Department [2001] EWCA Civ 782, [2001] INLR 342 at 350 (paras [28]-[32]) and Gardi v Secretary of State for the...
To continue reading
Request your trial