R v Immigration Appeal Tribunal, ex parte Jonah
| Jurisdiction | England & Wales |
| Judgment Date | 11 February 1985 |
| Date | 11 February 1985 |
| Court | Queen's Bench Division |
Queen's Bench Division
Nolan J
N Blake for the applicant.
G Pulman for the respondent.
Cases referred to in the judgment:
Fernandez v Government of Singapore and othersWLRUNK [1971] 1 WLR 987: [1971] 2 All ER 691.
R v Immigration Appeal Tribunal ex parte Mawji [1982] Imm AR 97.
Nagat Baghat Asadal Kazie v Secretary of State for the Home Department [1984] Imm AR 10.
Political Asylum — whether evidence that an applicant would have to abstain from political activity to ensure his safety amounts to persecution — standard of proof in asylum cases — whether ‘balance of probabilities’ is appropriate phrase to apply to evaluation of future possibilities — date in relation to which relevant facts must be considered — meaning to be attached to “persecution”— Immigration rules HC 169 paragraph 134.
The applicant had been a senior Trade Union Official in Ghana. In 1980 political changes in Ghana had deprived him of his position and he suffered ill-treatment. He then sought refuge and concealment in a remote village before coming to the United Kingdom where he applied for asylum. Before the adjudicator it was submitted that the applicant's life would be in danger if he returned to Ghana. The adjudicator dismissed the appeal because he concluded that the applicant's fears were exaggerated: he recognised that the applicant would be in jeopardy if he resumed his trade union activities but concluded he would not be endangered if he lived quietly in retirement.
On appeal to the Tribunal it was argued that where a person if he returned to a country would be obliged there to refrain from political activity to avoid persecution, he qualified for political asylum under the terms of the United Nations Convention on Refugees. The Tribunal dismissed the appeal not finding cause to interfere with the adjudicator's findings of fact.
On application for judicial review it was submitted that the adjudicator, when he stated ‘I cannot be satisfied, even on balance of probabilities…’ had applied the wrong standard of proof. The adjudicator had, it was argued, wrongly focused his attention on conditions in Ghana at the date of his determination (July 1983) and not the date of the Secretary of State's decision (March 1983). Finally it was argued that the adjudicator had misdirected himself in law on his interpretation of ‘well-founded fear of persecution’.
Held: 1) Although ‘balance of probabilities’ was a term somewhat inappropriate to use in relation to future possibilities, the evaluation of the probability of future events occurring depended judicially on inferences drawn from factual evidence which itself was, in civil proceedings evaluated on a balance of probabilities. It was not possible in the context of this case to hold that its use showed the adjudicator had misdirected himself in law.
2) As both parties accepted before the Court, the material date was the date of decision and not the date of hearing of the appeal, although in the present case the point had no practical consequence.
3) The proposition that a necessity to abstain from political action to avoid persecution qualified an individual for political asylum could not be maintained.
4) ‘Persecution’ in the phrase ‘well-founded fear of persecution’ must be given its ordinary meaning of being ‘subjected to injurious action and oppression’.
Nolan J: In this case Daniel Boahin Jonah applies for an order of certiorari to quash a determination of an adjudicator dated 18 July 1983, and a determination of the Immigration Appeal Tribunal on appeal from the adjudicator dated 20 December 1983. By his decision, the adjudicator had dismissed the appeal of Mr. Jonah against the decision of the Secretary of State in March 1983, declining to allow Mr. Jonah to remain in the United Kingdom. Specifically, the Secretary of State said: ‘You have applied for leave to remain in the United Kingdom on the grounds that if you return to Ghana’ (that being the country of which the applicant is a national) ‘you will be persecuted but the Secretary of State is not satisfied that your fear of persecution is well founded.’ The phrasing of the refusal is taken from the language of paragraph 134 of the Immigration Rules in the form in which they were amended on 9 February 1983.
The facts of the matter can be summarised in this way. The applicant was a full-time employee of trade unions in Ghana between the years 1952 and 1980. In 1966 he had risen to the position of General Secretary of the Public Utilities Union. He was the first General Secretary of that union. In 1977 he became additionally the...
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