R v Immigration Appeal Tribunal, ex parte de Melo
| Jurisdiction | England & Wales |
| Judgment Date | 19 July 1996 |
| Date | 19 July 1996 |
| Docket Number | CO/1865/96 |
| Court | Queen's Bench Division |
Laws J
CO/1865/96
CO/1866/96
B Richmond for the applicants
S Kovats for the respondent
Cases referred to in the judgment:
Secretary of State for the Home Department v. Sergei Savchenkov [1996] Imm AR 28.
Hernandez (unreported) (12773).
Asylum — social group — whether family constituted a social group — head of family ill-treated for a non-Convention reason — whether ill-treatment of other family members because of relationship could constitute persecution within the Convention. United Nations Convention relating to the status of refugees (1951), Protocol (1967) art. 1A.
The applicants for leave to move for judicial review were citizens of Brazil, sisters, whose appeal against the refusal by the Secretary of State to grant them asylum had been dismissed: the Tribunal had refused leave to appeal.
Their father, a farmer, had refused to grow drugs on his farm. He had been ill-treated by those who wished him to do so. The applicants claimed that they and other members of the family were persecuted because of their relationship to their father.
The special adjudicator found as facts that the attacks on the applicants were not linked with the approach by drug barons to their father and moreover if they were, the applicants could have sought the protection of the authorities. The adjudicator also concluded that the applicants did not, as members of their father's family, fall into a social group within the meaning of the phrase in the Convention.
Held:
1. On the findings of fact by the adjudicator the applicants could not establish a well-founded fear of persecution for a Convention reason.
2. Obiter: nevertheless members of a family could constitute a social group under the Convention: Hernandez approved. That conclusion was not contrary to the guidance in Savchenkov.
Laws J: These applications for judicial review are brought by two sisters. Each seeks to challenge the refusal of the Immigration Appeal Tribunal to grant leave to appeal against the special adjudicator's decision in her case. The same adjudicator dismissed the applicants' appeals against the Secretary of State's refusal of asylum to both of them. The decisions of the Tribunal simply uphold those of the adjudicator in short form, so that the judicial review proceedings have been directed to the findings and reasoning of the adjudicator.
The applicants are Brazilian nationals. They arrived together in the United Kingdom on 1 June 1994 and claimed asylum. Essentially the cases of both on the facts were the same. Their father was a farmer in Brazil. In 1991 a drug trafficker, said to be a man called Jabas Rabelo, had approached the father to get him to grow drugs on his farm, and another member of the family to peddle them. They would have nothing to do with it. At this time the applicants were living in Rio de Janeiro, which is a great distance from the father's farm in Recefa. Later, the father, who by then had also come to Rio, was shot at (though I think not injured) in his car. After that he and the applicants' mother went to Argentina. Other members of the family came to the United Kingdom and claimed asylum. The applicants remained in Brazil—in Rio. In 1992 two of the applicants' cousins (or, I think, their brother-in-law's cousins) were shot dead by persons unknown. Still the applicants remained in Rio. In about April 1994 one of the sisters, Claudette, began to receive anonymous phone calls asking about the family's whereabouts. The next month the applicants said that there had been a kidnap attempt upon Claudette's daughter on her way to school.
These primary facts were in essence accepted by the special adjudicator, who heard a great deal of evidence which she meticulously recorded in her determinations. However there were two further factual issues which she had to decide, and also an issue of law which is of some importance in relation to the judicial supervision of decisions taken, like those here subject to review, under the 1951 Geneva Convention. The first factual issue was whether the incidents which had happened, in particular the attack on the father and the murder of the cousins, were connected: that is, whether they were all part of a campaign by the drug trafficker or his associates to terrorise members of the family because of the father's initial refusal to grow drugs on his farm. The applicants said that the events were connected and amounted to persecution within the Convention. That assertion engages the point of law which the adjudicator had to decide, to which I will come in a moment. The second factual issue was whether the applicants could look to the authorities in Brazil for protection from any threats from drag traffickers; since the form of persecution relied on by the applicants was not on any view put in hand by the state authorities, but by criminals, there could be no case for asylum under the Convention if the applicants were able to look to the state to protect them.
On the two factual points the adjudicator's reasoning was of course the same in both determinations, the points themselves being identical. I may take it from page 25 in...
To continue reading
Request your trial
-
United Kingdom (Secretary of State for the Home Department) v. K., (2006) 364 N.R. 279 (HL)
...for the Home Department), [1996] Imm. A.R. 28 (C.A.), refd to. [paras. 19, 120]. R. v. Immigration Appeal Tribunal; Ex parte De Melo, [1997] Imm. A.R. 43 (C.A.), refd to. [paras. 20, 42, P. and M. v. United Kingdom (Secretary of State for the Home Department), [2004] E.W.C.A. Civ. 1640; [20......
-
Hasan Skenderaj v Secretary of State for the Home Department
...and that the persecution was therefore for a Convention reason, relying on an obiter observation of Laws J, as he then was in R. v. IAT, ex p. de Melo & Anor. [1997] Imm AR 43, at 49; and R v. IAT, ex p. Shah [1999] 2 WLR 1015, HL. He said: "13. I accept that the Appellant, as a male in a ......
-
Fornah v Secretary of State for the Home Department
...directed to other family members. Laws J, sitting at first instance, addressed this problem in obiter observations in R v Immigration Appeal Tribunal, Ex p De Melo [1997] Imm AR 43, 49-50, when he said: "It is necessary next to examine the second question: is the alleged or actual persecut......
-
RT (Zimbabwe) and Others v Secretary of State for the Home Department [Sup Ct]
...Fornah v Secretary of State for the Home Department [2007] 1 AC 412, paras 20–22 (approving the reasoning of Laws J in R v Immigration Appeal Tribunal, Ex p De Melo [1997] Imm AR 43, 49–50). Thus the Convention affords no less protection to the right to express political opinion openly th......