FJ (FARC- Convention Reason) Colombia CG  UKIAT 03219
Date of hearing: 9 May 2002
Date Determination notified: 29 July 2002
|Secretary of State for the Home Department||RESPONDENT|
'The political opinion ground requires a broad definition but not so broad as to cover any opinion which a non-state actor may impute.' (para (v) of the summary of conclusions).
'To qualify as political, the opinion in question must relate to the major power transactions taking place in that particular society. It is difficult to see how a political opinion can be imputed by a non-state actor who, or which, is not itself a political entity.'
'Even in a case where an appellant can make out a Convention ground of political opinion, he or she must still also establish that the persecution is on account of that political opinion. It is commonsense under this nexus test that even where persecutors have political views about those they target, it may not always be the political opinion that motivates their action. As was said in Jeah, the mere existence of a generalised political motive does not lead to the conclusion that the persecutor perceives what the claimant has said or done as political.'
'Even in cases involving criminal gangs or guerrillas, however, evidence of imputed political opinion cannot consist solely of the general political purposes of the persecutor.'
'The persecution stems from the desire to put down any dissent viewed as a threat to the persecutors. Grahl-Madson's definition assumes that the persecutor from whom the claimant is fleeing is always the government or ruling party, or at least some party having parallel interests to the government. As noted earlier, however, international refugee protection extends to situations where the state is not an accomplice to the persecution but is unable to protect the claimant. In such cases it is possible that the claimant may be seen as a threat by a group unrelated, and even opposed, to the government, because of his or her political viewpoint, perceived or real.'
'In establishing any imputed political opinion, the focus of enquiry turns away from the views of the victim to the views of the persecutor. We consider, however, not the persecutor's own political opinions, but rather the political views the persecutor, rightly or in error, attributes to his victims. If the persecutor attributed a political opinion to the victim, had acted upon that attribution, this imputed view becomes the applicant's political opinion as required under this act.'
'It is necessary at this point to record that even in a case where an appellant can make out a Convention ground of political opinion, he or she must also establish that persecution is on account of that political opinion.'
Later in the same paragraph, the Tribunal states:
'Just because persecutors may in some cases attribute political opinions to victims or opponents, does not mean that they will necessarily do so in every case.'
'53. It is also commonsense that although one may hold a political opinion, not everything one does is motivated by that political opinion.
54. Reflecting these commonsense notions, the Tribunal would categorically reject the idea that even in countries such as Colombia where the boundaries between the political and the non-political have been heavily distorted by the conduct of paramilitary bodies and drug cartels, every case where such a body persecutes must be on account of an imputed political opinion. We would reaffirm the point made in Quijano (10699) that where the concern of persecutors was not a political one but one to maintain their economic position through criminal activities and to that end intimidate, and if necessary eliminate, those that oppose the pursuit of that aim, then there would be no conflict based upon refusal to perform political acts but only criminal ones.
'Even where the non-state actor is a guerrilla organisation (like FARC), carrying out state-like functions in parts of the country, there will arise cases in which no political motive is involved. Such organisations for some if not much of the time may act for purely economic reasons. Their reasons for seeking retribution against victims may for some if not much of the time be purely criminal. Indeed the background evidence suggest that most of the kidnappings undertaken by FARC and ELM are financially motivated (1,985 in 1999) rather than politically motivated (372 in 1999). Deciding whether any kidnapping is purely financial or purely political or is for mixed financial and political motives will obviously therefore depend upon the particular circumstances of each case.'
'It also follows from this approach that it cannot be said as a universal proposition that those on the side of law and order and justice who face persecution from non-state actors, by the guerrilla organisations or political gangs or criminal gang, will have a political opinion imputed to them. If that is what Acero-Garces meant, then we must respectfully disagree. Rather it will depend on the particular country and its particular circumstances whether that is so. Thus in Storozhenko (19935) a Tribunal chaired by the President, it was held that those on the side of law and order in the Ukraine, would not have a political opinion imputed to them by criminals intent on persecuting the appellant.
24. In Storezhenko, the Tribunal states:
'We do not regard Acero-Garces as authority for the proposition that any victim of crime who seeks redress but cannot because of police corruption or the power of criminal element, is entitled to the protection of the Convention ground because he may be perceived to be on the side of law and order. Normally, imputed political opinion will arise where there is perceived opposition to a policy espoused by the government or its agents. Since protection can be extended to cover those who are persecuted, not by the government or its agents, but because government is unable or unwilling to afford the protection from the persecutors, witnesses to crime may, if they come forward to help be properly regarded as coming under the umbrella of imputed political opinion. But we think that such cases would be rare and limited to situations such as existing in Colombia where no protection can be given because the criminals are in effective control.'
'As far as the remaining documents are concerned, I am unable to come to any firm conclusion about their authenticity.'
'Mr Francisco Jhirao we don't want to harm you. Just hand over your land and everything will be OK, or else; you know that your life is at risk, FARC.'