Suarez v Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judge | Lord Justice Potter,Lord Justice Keene,Mr Justice Sumner |
| Judgment Date | 22 May 2002 |
| Neutral Citation | [2002] EWCA Civ 722 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | Case No: C/2001/1953 IATRF |
| Date | 22 May 2002 |
[2002] EWCA Civ 722
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE IMMIGRATAION
APPEAL TRIBUNAL
Royal Courts of Justice
Strand,
London, WC2A 2LL
Lord Justice Potter
Lord Justice Keene and
Mr Justice Sumner
Case No: C/2001/1953 IATRF
Manjit S Gill QC and James Collins Esquire (instructed by Sheikh & Co, London) for the appellant
Angus McCullough Esquire (instructed by the Treasury Solicitor) for the respondent.
INTRODUCTION
This appeal is principally concerned with 'imputed political opinion'.
It is brought under s.9 of the Asylum and Immigration Appeals Act 1993 which provides for an appeal from a final determination of the Immigration Appeal Tribunal (IAT) on any question of law material to that determination.
The relevant determination is that contained in a decision of the IAT dated 31 July 2001 but in fact promulgated on 15 August 2001.
The IAT dismissed the appeal of the appellant from the determination of the Special Adjudicator, Miss B. Mensah, promulgated on 27 February 2001 whereby she had dismissed the appeal of the appellant from the decision of the Secretary of State for the Home Department dated 11 April 2000 refusing the appellant's application for asylum under paragraph 336 of the Immigration Rules HC 395.
Article 1A(2) of the Geneva Convention provides that a refugee is a person who:
"owing to well founded fear of being persecuted for reasons of … membership of a particular social group, or political opinion, is outside the country of his nationality, and is unable, or owing to such fear, unwilling to avail himself of the protection of that country." (emphasis added)
It was and is the case for the appellant, who is a former soldier of the Colombian Army, that the Convention reason for which he fears persecution is that of political opinion imputed to him by virtue of his having taken a stance against the endemic corruption and lawlessness in Colombia, having witnessed the criminal activities of his immediate commanding officer and, in particular the murder of a farmer called Guzman.
THE FACTUAL BACKGROUND
We take the factual background in part from the witness statement of the appellant and in part from the judgment of the Special Adjudicator.
The appellant is a citizen of Colombia. He is thirty-four years of age and arrived in the United Kingdom on 1st February 1997 with this wife and two children, immediately claiming asylum.
A summary of his case is as follows. He said that in 1982 he and his younger brother, who were then living with their grandparents, had reported guerrillas in the area to the authorities and that, on 1 December 1982, when he and his brother were returning home from school, they were ambushed on a bridge. His brother was hit and seriously injured, but he escaped unharmed to Bogota, never to return to his grandparents' home. In June 1986, he joined the army to fight the guerrillas. He became aware of wrongful activities on the part of his superiors who would stage ambushes and say that the guerrillas had done it. However, the incident which led to his deserting the army and fleeing Colombia was as follows. In November 1996 he and two other soldiers saw Guzman enter the military office and have conversation with his Captain and a Sergeant who were the appellant's superiors. He overheard a conversation between the three men which indicated that the Captain and Sergeant were selling arms which the army had captured from the guerrillas back to them through Guzman as a middleman. He had also known for some time that the Captain and Sergeant, who were designated to destroy drug plantations as well as to fight the guerrillas, were dealing in part of the drugs crops which they were supposed to destroy.
On 20 December 1996 the appellant was a witness to the shooting of Guzman by his Captain. The Captain went into Guzman's home with two soldiers while the appellant guarded the house outside. He heard shooting and went in, it being obvious that the Captain had killed Guzman. On the following day he and some of his friends who knew of the Captain's activities went to him to say they did not agree with the arms dealing and drugs smuggling. They were told to keep their mouths shut and promised money otherwise they would be killed. On that very evening, during a confrontation with guerrillas, the Captain and two Sergeants shot at the appellant and his friends, two of whom were hit. The appellant fled the scene and went to this home arriving two days later on 24 December. There his wife reported three threatening phone calls which the appellant attributed to the Captain.
The appellant said that the following day he heard motorbikes come to his home in the evening and shouts that he would be killed. There was shooting at the house. He fled with his wife and two children by a back way. Unhappily, his mother-in-law was killed. He said that, while in hiding, he decided there was no option but to escape from Colombia, otherwise he would be killed by the Captain and Sergeants or the guerrillas. He did not believe that the authorities would provide him with protection. Consequently he obtained a passport on 16 January 1997 and obtained flight tickets. He and his family went to Bogota where they were hidden by a friend until the time of the flight. On 31 January 1997 they flew to London.
Extensive literature was produced to the Special Adjudicator including the October 2000 'Colombia Assessment' of the UK Immigration and Nationality Directorate Country Information and Policy Unit. Key parts of that material have also been placed before us, save that our bundle contains an updated assessment from the CIPU dated April 2001. Counsel for the appellant relied upon that literature as showing endemic corruption in Colombia which creates localised overlap between the state, guerrillas and paramilitary elements. Counsel submitted that, if the applicant returned, he would not simply get a military punishment for desertion but would be killed or imprisoned.
The Special Adjudicator was not impressed with the credibility of the appellant. She stated:
"36. I had the benefit of seeing and hearing the appellant give evidence. His account was full of detail on certain aspects but where there were difficulties in cross-examination (such as the killing by his Captain) his account was evasive and contradictory. I did not for the most part find him to be a credible witness."
However, she went on to say that, even if she were to accept the appellant's account she did not consider that his claim could succeed. In this respect she stated:
"37. I accepted that the appellant had been in the army. I also accepted his evidence that he had no political interests. The submission on his behalf was that his case was based on imputed political opinion due to the stand he had taken against his commanding officer. The basis of his claim was in respect of an incident in which his commanding officer had shot dead a Mr Guzman. He had been evasive on the point and I was satisfied from his evidence that he had not witnessed the shooting. The background to the shooting, according to the appellant, was a financial conflict linked with arms and drugs dealing between the commanding officer and the criminal elements. He and others had later confronted the commanding officer who had threatened to kill them and as a consequence the appellant had fled. A couple of days later there had been an attack on his house. He had managed to escape through the back door but his mother-in-law had been shot dead, during the attack. Although the appellant claimed in evidence that he wanted to take a stand against corruption, he had not in fact done so. He had fled when threatened by his commanding officer. Although he also claimed in evidence that if the Captain did not want witnesses he would kill them, that had not been done in his case."
Again the Special Adjudicator said that she did not find his account convincing. Nonetheless, she went on:
".. even if I accepted it in its entirety I noted that the events all occurred three years previously and the appellant was now in this country with his family. It would have been clear to the commanding officer that the appellant had not witnessed the actual shooting and that he had not reported the matter to the authorities, either immediately after the shooting or after being threatened or after his house was attacked. It would have been clear to the commanding officer that he had succeeded in silencing the appellant. The appellant presented no evidence of what had happened to his colleagues who had also complained or of the 40–50 other witnesses at the shooting incident. I consider it inherently unlikely that his commanding officer (if he was still in the army) would know of the appellant's return from abroad and that even if he did that he would have been concerned 3 years after the incident to seek him out."
She went on to say that she attached little weight to two extracts from local newspaper reports which were in general terms stating that the appellant had had to flee with his family following threats which he had received. She stated:
"There was no mention of the source of the threats, no details of his Captain or of named guerrilla groups. Although the second article mentioned that the appellant had served military service in a particular battalion, it gave no details of the specific complaint or allegation. In the circumstances and in the absence of any news of the commander's whereabouts or...
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