Kaja (Political asylum; standard of proof) (Zaire)  UKIAT 11038 (10 June 1994 )
Date of hearing:
Date Determination notified: 10 June 1994
|Secretary of State for the Home Department||RESPONDENT|
Majority Determination (The President, the Vice-President)
"In my opinion the requirement that an applicant's fear of persecution should be well-founded means that there has to be demonstrated a reasonable degree of likelihood that he will be persecuted for a Convention reason if returned to his own country. In R v Governor of Pentonville Prison, ex parte Fernandez  1 WLR 987, this House had to construe section 4(1 )(c) of the Fugitive Offenders Act 1967, which requires that a person shall not be returned under the Act if it appears:
"that he might, if returned, be prejudiced at his trial or punished, detained or restricted in his personal liberty by reasons of his race, religion, nationality or political opinions."
"My Lords, bearing in mind the relative gravity of the consequences of the court's expectation being falsified either in one way or in the other, I do not think that the test of the applicability of paragraph (c) is that the court must be satisfied that it is more likely than not that the fugitive will be detained or restricted if he is returned. A lesser degree of likelihood is, in my view, sufficient; and I would not quarrel with the way in which the test was stated by the magistrate or with the alternative way in which it was expressed by the Divisional Court. 'A reasonable chance', 'substantial grounds for thinking', 'a serious possibility' - I see no significant difference between these various ways of describing the degree of likelihood of the detention or restriction of the fugitive on his return which justifies the court in giving effect to the provisions of section 4(l)(c)."
I consider that this passage appropriately expresses the degree of likelihood to be satisfied in order that a fear of persecution may be well-founded."
The standard of proof relating to facts
"As it seems to me there may here be a danger of creating a difficulty where in truth none exists. The adjudicator, like any fact-finding tribunal, can only act on evidence of the facts. In civil litigation the evidence required to be produced by the party upon whom the burden of proving the facts lies must be evidence which satisfies the tribunal on the balance of probabilities. It seems to me that, as indeed Lord Diplock himself said, it is a convenient phrase to indicate the degree of certainty which the evidence must have induced in the mind of the court as to the existence of facts. In certain cases, of which personal injuries actions are one instance and paragraph 134 is to my mind another, the court must then make an inference or, if you like an informed guess as to what may happen in the future. It can only do so on the basis of the facts proved on the balance of probabilities."
"For the purposes of the present Convention, the term "refugee" shall apply to any person who:
(2) . . . owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence as a result of such events, is unable or, owing to such fear, is unwilling to return to it."
"The claimant to refugee status is not immediately threatened with danger arising out of a situation then confronting him. The question is what might happen if he were to return to the country of his nationality. He fears that he might be persecuted there. Whether that might happen can only be determined by examining the actual state of affairs in that country. If that examination shows that persecution might indeed take place then the fear is well-founded. Otherwise it is not."
"The affidavit of Mr Potts, an official of the Home Office, indicates that the Secretary of State took into account reports of the refugee unit of his department compiled from sources such as press articles, journals and Amnesty International publications, and also information supplied to him as by the Foreign Office and as a result of recent visits to Sri Lanka by ministers. It is well known that for a considerable time Sri Lanka, or at least certain parts of that country, have been in a serious state of civil disorder, amounting at time to civil war. The authorities have taken steps to suppress the disorders and to locate and detain those responsible for them. These steps, together with the activities of the subversives, have naturally resulted in painful and distressing experiences for many persons innocently caught up in the troubles. As the troubles have occurred principally in areas inhabited by Tamils, these are the people who have suffered most. The Secretary of State has in his decision letters expressed the view that army activities aimed at discovering and dealing with Tamil extremists do not constitute evidence of persecution of Tamils as such. This was not disputed by counsel for any of the applicants, nor was it seriously maintained that any sub-group of Tamils, such as young males in the north of the country, were being subjected to persecution for any Convention reason. It appears that the Secretary of State, while taking the view that neither Tamils generally nor any group of Tamils were being subjected to such persecution, also considered whether any individual applicant had been so subjected and decided that none of them had been. Consideration of what had happened in the past was material for the purpose of assessing the prospects for the future."
". . . in truth; once it is recognised that the expression "well-founded" entitles the Secretary of State to have regard to facts unknown to the applicant for refugee status, that expression cannot be read simply as "qualifying" the subjective fear of the applicant - it must, in my opinion, require that an inquiry should be made whether the subjective fear of the applicant is objectively justified. For the true object of the Convention is not just to assuage fear, however reasonably and plausibly entertained, but to provide a safe haven for those unfortunate people whose fear of persecution is in reality well-founded."
Lord Goff added:
"... I respectfully agree with my noble and learned friend, Lord Keith of Kinkel, for the reasons given by him that the requirement that the applicant's fear must be well-founded means no more than that there has to be demonstrated a reasonable degree of likelihood of his persecution for a Convention reason."
"In my judgment, both the past and the present must be looked at. Unless a man can satisfy the Secretary of State that there is a reasonable degree of likelihood that he will be persecuted for one of the Convention reasons, then he fails in his application."
"There are no details of the numbers of occasions when that happened, but the Secretary of State must have, and did, assume in the applicant's favour that he was ill-treated and harassed on a number of occasions. What the Secretary of State then has to do, however, in my judgment, is to measure the seriousness of the whole picture. He must take into account the fact that there was an occasion of persecution in 1980; he must take into account what has happened since; he must look at the whole picture; and he must decide whether the applicant has demonstrated a reasonable degree of likelihood that he would be persecuted were he to be sent back to the country."
The principle - the relevance of uncertainty
"In general, the applicant's fear should be considered well-founded if he can establish, to a reasonable degree, that his continued stay in his country of origin has become intolerable to him for the reasons stated in the definition, or would for the same reasons be intolerable if he returned there."
Credibility of aspects of the evidence and the ultimate evaluation of the case
(i) that the assessment of whether a claim to asylum is well founded is based on the evidence as a whole (going to past, present and future) and is according to the criterion of the reasonable degree of likelihood.
(ii) the evidential foundation for that decision.
(iii) how the adjudicator moves from the evidential foundation to the conclusion.
Minority Determination (R E Maddison)
Case remitted for hearing de novo