Virjon Beqaraj v Special Adjudicator
| Jurisdiction | England & Wales |
| Judge | MR JUSTICE FORBES |
| Judgment Date | 17 June 2002 |
| Neutral Citation | [2002] EWHC 1469 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | NO: CO/3829/2001 |
| Date | 17 June 2002 |
[2002] EWHC 1469 (Admin)
Mr Justice Forbes
NO: CO/3829/2001
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
Miss R Chapman appeared on behalf of the Claimant
Mr S Wilken appeared on behalf of the Defendant
Monday, 17th June 2002
This is an application for judicial review of the decision of an Adjudicator dated 11th July 2001, whereby the claimant's appeal against the refusal by the Secretary of State to grant him refugee status was dismissed and the Secretary of State's certificate under paragraph 5(4)(b) of Schedule 2 to the Asylum and Immigration Appeals Act 1993 (as amended) was upheld.
The claimant is a citizen of Albania, whose date of birth is given as 22nd March 1965. He arrived in the United Kingdom on 16th September 1998 and claimed asylum on arrival at port. He was accompanied by his wife and child, who had been born on 6th October 1996. Accordingly, his wife and child are his dependents.
The basis of the claimant's claim for asylum was that he had been a member of the Democratic Party, which was the governing party in Albania until 1996. According to the claimant, a breakdown in law and order occurred in Albania following the elections in May and June 1996, as a result of which the Socialist Party took over the government of the country. Thereafter, according to the claimant, he was persecuted by members of the Socialist Party because of his political affiliations to the Democratic Party.
However, that generalised claim apparently depends heavily upon two particular incidents. The first is said to have occurred in September 1997, when police officers, said to have been acting on behalf of the Socialist Party, came to the claimant's home looking for him and his brother. According to the claimant, the police fired shots into the house and the claimant's sister in law was injured as a result. More importantly for the purposes of this judgment, there is said to have been a second incident which, according to the claimant, was the immediate cause of his decision to leave Albania with his family and seek refuge in the United Kingdom. That incident is said to have occurred on 8th or 9th September 1998. According to the claimant, the police came to the house where he was staying with his wife and seriously ill treated them. In particular, it is alleged that the claimant's wife was raped by police officers in his presence. According to the claimant, they reported the rape to the authorities and also sought appropriate medical examination and treatment. However, the relevant authorities and the medical examiner refused or failed to deal with the matter properly because, having ascertained that the rape had been carried out by police officers acting on behalf of the Socialist Party, each was too fearful to deal with the matter properly.
So it was that the claimant, his wife and child left Albania and sought political asylum in this country. However, by his letter of 4th February 1999, the Secretary of State rejected the claimant's claim for asylum. The Secretary of State expressed misgivings as to the credibility of the claimant and issued the appropriate certificate under Schedule 2 of the 1993 Act, to the effect that the claimant's fear of persecution was manifestly unfounded and that there was no credible evidence relating to torture.
On behalf of the claimant, Miss Chapman raised three particular grounds of challenge. The first was a challenge relating to the certificate under paragraph 5 of Schedule 2 to the Act; the second was a natural justice challenge; and the third can be described as the merits challenge. The third ground of challenge can itself be subdivided into the following two criticisms of the way in which the Adjudicator approached the matter: (i) it is said that she erred in her approach to the medical evidence when deciding the critical issue of credibility; and (ii) it is suggested that she was wrong in her approach to and consideration of the objective evidence.
Having heard submissions from Miss Chapman and also from Mr Wilken on behalf of the defendant, it appeared to me that this was an application which must succeed on the first aspect of the merits challenge, having regard to the way in which the Adjudicator dealt with the medical evidence. I will come to that in just a moment. However, it seemed to me that the other matters raised by Miss Chapman by way of challenge to the Adjudicator's decision were very unlikely to succeed. I therefore indicated to Miss Chapman that I proposed to allow the application on the basis of the first aspect of the merits challenge (i.e. with regard to the medical evidence) and asked whether she wished to address further argument to me on the other matters. She indicated that she did not. In those circumstances, it is not appropriate or necessary to consider the other grounds of challenge. I merely indicate that, in relation to those other matters, I was not persuaded that there was any real substance in those grounds of challenge. However, that was a provisional view and I emphasise that I did not hear final argument from Miss Chapman with regard to those other matters.
I therefore turn to what seems to me to be the central issue in this case, namely the criticism leveled against the Adjudicator with regard to her treatment of the medical evidence. I should say at the outset that Mr Wilken very properly conceded that if I was persuaded by Miss Chapman's argument with regard to this aspect of the matter, then the application must succeed.
Critical to the Adjudicator's dismissal of the appeal, and indeed to her conclusion that she should uphold the Secretary of State's certificate, were her adverse conclusions with regard to the credibility of both the claimant and his wife, both of whom had given evidence. The evidence given by the claimant and his wife was consistent with the claims that had been made in support of the application for asylum. In particular, the claimant and his wife both gave evidence as to the wife's rape by the police officers, who were believed to have been acting on behalf of the Socialist Party. The Adjudicator came to the conclusion that she was not persuaded as to the truth of either the claimant's account or that of his wife.
Miss Chapman criticised the way in which the Adjudicator approached the question of credibility, having regard to the available medical evidence, which came from no fewer than four sources. The first was a medical report from a Dr Mema, dated 11th September 1998. This gave an account of Dr Mema's examination of the claimant's wife shortly after the alleged incident of rape. It appears that Dr Mema carries on medical practice in Albania. It is not entirely clear in which medical discipline Dr Mema is a specialist. Suffice it to say that his only recorded findings were of facial bruising. Notably, his report does not contain any statement to the effect that any of the injuries was consistent with the allegation of rape, although bruising to the face can, of course, be the result of a violent rape. However, there is no suggestion anywhere in the report of the medical findings being consistent with there having been a rape. Dr Mema merely observed that the injuries to the face were consistent with a...
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