MB (OLF and MTA ľ risk) Ethiopia CG  UKAIT 00030
ASYLUM AND IMMIGRATION TRIBUNAL
Date of hearing: 19 February 2007
Date Determination notified: 29 March 2007
MRS J HOLT
|Secretary of State for the Home Department||RESPONDENT|
For the Appellant: Mr R. Toal, Counsel, instructed by the Brighton Housing Trust
For the Respondent: Mr G Saunders, Senior Home Office Presenting Officer
DETERMINATION AND REASONS
(1) As at February 2007, the situation in Ethiopia is such that, in general:-
(a) Oromo Liberation Front members and sympathisers;
(b) persons perceived to be OLF members or sympathisers; and
(c) members of the Maccaa Tulema Association;
will, on return, be at real risk if they fall within the scope of paragraph (2) or (3) below.
(2) OLF members and sympathisers and those specifically perceived by the authorities to be such members or sympathisers will in general be at real risk if they have been previously arrested or detained on suspicion of OLF involvement. So too will those who have a significant history, known to the authorities, of OLF membership or sympathy. Whether any such persons are to be excluded from recognition as refugees or from the grant of humanitarian protection by reason of armed activities may need to be addressed in particular cases.
(3) Given the proscription of the MTA and the current state of tension on the part of the Ethiopian authorities, the Tribunal considers that MTA members will also be at real risk on return if they have previously been arrested or detained on suspicion of MTA membership and/or of OLF membership or are known or suspected of membership of the MTA. Despite the banning of the MTA, the Tribunal does not consider that the evidence is such as to show a real risk where the extent of the authorities' knowledge or suspicion about an individual relates to something less than membership of the MTA.
The appellant's claim
"The warrant gives very little information about the actual charges against the appellant and on what evidence this is based. However, it does refer to bringing this dangerous criminal to justice. The appellant had admitted that he was a member of the MTA and had supported the OLF, which was an illegal organisation. Therefore the appellant could expect to be prosecuted for this if he returned to Ethiopia but this would not amount to persecution."
"unlikely that the appellant would be prosecuted if he was returned to Ethiopia but if he was for the activities he has already admitted then he would be subjected to the due process of law which would not amount to a breach of Article 5 of the ECHR and any ill-treatment in prison would not amount to a breach of Articles 2 and 3 or be a Convention reason for asylum."
The grounds of appeal to the IAT
The material errors of law in the Adjudicator's determination
"2 Before us Mr Ouseley conceded that the determination was wrong in law for the reasons identified in grounds 1 and 2 of the appeal. The Adjudicator made perverse findings and ignored evidence. However that concession did not lead to agreement about the proper disposal of the appeal. Mr Ouseley submitted that it should be reheard. Mr Toal submitted that the Adjudicator had made sustainable findings and those findings should have led him to allow the appeal. He submitted that we should allow the appeal in the light of those findings.
3. Ground 1 of the grounds complained that the Adjudicator had made inconsistent findings. The Adjudicator said at paragraph 20(iii) of his determination 'the appellant could expect to be prosecuted for [his support for OLF] if he returned to Ethiopia'. This is inconsistent with his finding at paragraph 20(v): 'I think it is first of all unlikely that the appellant would be prosecuted if he was returned to Ethiopia'.
4. In order to allow the appeal on the basis of the facts found by the Adjudicator we would have to be satisfied that the inconsistency complained of did not mean that the other findings were obscure or unsound.
5. Mr Toal pointed out that the findings set out in paragraph 1 of the application for permission to appeal to the Immigration and Asylum Tribunal were not the subject of any criticism by him or the subject of any cross-appeal by the respondent. This is true but not decisive. We can only use existing findings that are intelligible and which have an internal logic and consistency.
6. The findings set out at paragraph 1 of the grounds of appeal were findings of fact about past events. Mr Toal submitted that, properly understood, point 3 (ground 1 of the grounds of appeal) was concerned about an assessment of future risk. The complaint made by ground 1 was not that the Adjudicator had found that the appellant could expect to be prosecuted for his support for the OLF but rather that having made that finding, he went on to find it unlikely that he would be prosecuted.
7. Mr Toal also indicated that the appellant did not want to rely on ground 1. He was more concerned with the points raised in ground 2 which alleged the Adjudicator failed to assess the background and expert evidence properly. This change of tack did not assist the appellant. We could only consider the expert's report in the light of the Adjudicator's findings of fact and we could not do that unless we identified them.
8. We have looked carefully at exactly what the Adjudicator said. At paragraph 20(iii) the Adjudicator found that the appellant 'could expect to be prosecuted' because he had admitted that he is a member of the MTA and had supported the OLF. At paragraph 20(v) the Adjudicator found it "unlikely that the appellant would be prosecuted'. This is confusing. We recognise that a finding that the appellant 'could expect to be prosecuted' is not particularly precise but it is very hard to give it any meaning at all that does not mean that the Adjudicator found there was a real risk of the appellant being prosecuted and if this is what he meant then he should have made his determination on the basis that the appellant had established a real risk of his being prosecuted. He did not and this leaves us wondering just what the Adjudicator really meant when he made his findings.
9. Ground 2 extends from paragraph 4 to paragraph 7 of the grounds of appeal. The ground complains about the Adjudicator's conclusion that prosecution was unlikely, that prosecution would not bring with it a risk of persecution or breach of protected human rights, or that the appellant would not be at risk of persecution or ill-treatment for some reason other than the proposed prosecution given the things he admitted to having done. Point 5 complains that the Adjudicator failed to consider the expert report concluding that he would 'almost certainly be detained on entry' to Ethiopia where he would be ill-treated and probably tortured. Points 6 and 7 add to the complaint that the Adjudicator had not considered the expert report.
10. Some of the Adjudicator's apparent findings are set out in ground 1 of the grounds and we repeat them here. The Adjudicator accepted that the appellant was an active member of Waldaa Maccaa Fi Tulema, known as the MTA, that he was a supporter of the OLF, that he was detained for a period of about six weeks in October 1998, that he was slapped, beaten and kicked during the first days in detention, that he admitted to being a member of the MTA and a supporter of the OLF, that he was released on bail at the end of that period.
11. The Adjudicator also found that the appellant would not be persecuted if he was prosecuted.
12. We consider that the complaints made in ground 2 are made out. The Adjudicator did not explain his conclusion that the appellant was unlikely to be prosecuted or, more importantly, that any prosecution would not bring with it a risk of persecution or breach of human rights. Further the Adjudicator did not deal adequately with the evidence of the expert DráTrevor Truman and in particular his opinion that the appellant would 'almost certainly be detained and ill-treated on entry'.
13. In his efforts to persuade us that we should allow the appeal outright Mr Toal relied heavily on the Home Office Operational Guidance Notes published on 21 November 2005. These are notes published by the Immigration and Nationality Directorate and are intended to guide immigration officers assessing a case. Mr Toal particularly drew to our attention paragraph 3.6.9 which is in the following terms:
'If it is accepted that the claimant has been involved in, or is suspected of involvement in non-combat activities on behalf of one of these groups and has previously come to the adverse attention of the authorities, then they are likely to be at real risk of persecution by the state authorities. The grant of asylum in such cases is therefore likely to be appropriate.'
14. Mr Toal submitted that the appellant plainly comes within this category. The appellant has been detained for about six weeks in October 1998 when he was ill-treated. He admitted to being a member of the MTA and a supporter of the OLF.
15. The difficulty we have is that we do not know that the Adjudicator accepted that the appellant would be linked in the minds of the authorities with the OLF. It was never the appellant's case that he was a member of the OLF but just that he supported it. Certainly it was the appellant's case that he was seen as a supporter of the OLF. This is reflected at paragraph 14(iv) of the determination. It is not clear that the Adjudicator believed this, or at least not that the authorities continued to regard him as an OLF supporter. The Adjudicator found that the appellant had been detained and released on bail. The Adjudicator found that was because they had insufficient evidence to proceed with the charge. He said this at the troublesome paragraph 20(iii). The Adjudicator expressly rejected the appellant's evidence that he was now being sought for OLF activities.
16. We reject Mr Toal's contention that the inconsistency and confusion in paragraph 20(v) does not undermine the Adjudicator's earlier findings. We do not see why we should assume that the Adjudicator's finding that the appellant risked prosecution is 'right' but his finding that he did not risk persecution is "wrong". We do not accept that the Adjudicator decided properly that the appellant continued to risk prosecution in Ethiopia. He may have meant that the appellant no longer risked prosecution and that is why he would not risk being persecuted if he returned. The problem here is not that the Adjudicator made a series of clear findings and then spoiled the determination by making a perverse conclusion. Rather, although the Adjudicator appears at 'first blush' to have made clear findings when the determination is read carefully it is not at clear what the adjudicator really found or accepted.
17. It is plain to us that the findings of fact in the determination are not good enough to go on to allow the appeal for the reasons advanced by Mr Toal. It follows that this case will have to be reheard.
18. We are very aware of the contents of the expert's report which we have not considered in detail because there is no point in us doing that at this stage. We are also aware of the reported case HA (OLF members and sympathisers ľ risk) Ethiopia  UKAIT 00136 which could, if certain findings are made, be of considerable assistance to the appellant. We also note that the case of HA is not designated as country guidance. If there is sufficient material available at the second-stage rehearing it may be possible to give general guidance on the risks facing members, supporters or perceived members and supporters of the OLF."
The evidence before the Tribunal on 19 February 2007
"high probability that his previous involvement with the authorities, and his abscondence, would fairly quickly come to their attention again, given the network of informal connections amongst the still relatively small educated elite in Addis Ababa. This chance would increase were he to resume his previous contacts with the MTA and to continue supporting the OLF" (paragraph 33).
"In my opinion, if a person with the profile of [the appellant], a graduate of Addis Ababa University who has refused membership of the OPDO, a member of the Mach-Tulama Association who has been detained and beaten because of this in the past, for whom an arrest warrant has been written, were to return to Ethiopia, he would almost certainly be detained on entry, interrogated, beaten and probably tortured. It is probable that he would spend many months or years in detention. It is possible, but unlikely, that he would be killed or made to disappear during detention."
"The Government's already poor human rights record deteriorated markedly in 2005. After the May 2005 elections, serious human rights abuses occurred in June 2005 when the opposition parties refused to accept the announced results. ů the aftermath of election has laid bare the deeply entrenched patterns of political repression, human rights abuse and impunity that characterised the day-to-day reality of governance in much of the country. Throughout 2005, the Government severely clamped down on freedom of expression, assembly and the media with the arrest of hundreds of opposition politicians, journalists, editors and civil society activists."
"A number of indigenous NGOs that have the aspect of ethnic of welfare organisations have fallen foul of the Government and have been closed down. The Mecha-Tuluma Association was seen as a political wing of the OLF and closed down. The Ogaden Welfare Society (OWS) in the Somali Regional State was banned in 2002 and a number of its members were arrested and detained."
Paragraph 2.14 observes that:-
"State oppression of ethnic groups such as the Oromos continued in 2005. In rural areas in Oromia, local officials often threatened to withhold vital agricultural inputs such as fertiliser from impoverished farmers if they speak out against them or their policies."
"has evolved in response to the Oromo people's long, difficult and often antagonistic relationship with the Ethiopian State. Oromos who come to the adverse attention of the authorities are usually those who are known to be involved with, or suspected of being involved with the OLF."
Paragraph 3.7.8 concludes that:-
"Whilst there is evidence that Oromos who are active in, or who are suspected of being active in, the OLF are likely to come to the attention of the authorities, there is no evidence that the State authorities systematically harass, discriminate or persecute Oromo Ethiopians solely on account of their ethnic origin. Claimants who express a fear of ill-treatment amount to persecution by the State authorities solely on the basis of their Oromo ethnic origin are therefore not likely to qualify for asylum."
HA (OLF Members and sympathisers ľ risk) Ethiopia  UKAIT 00136
"at all determinative of how she would be perceived by the authorities. On the basis of the April 2004 CIPU report we consider it was reasonably likely that they would re-arrest and detain her and, in the course of that detention, inflict further ill-treatment upon her by virtue of her (perceived) political opinion" (paragraph 12).
Of further relevance was the Human Rights Watch report of May 2005, in which it was noted that police officials in Oromia often subject individuals who are arrested on suspicion of OLF-related activities to torture and other forms of mistreatment. Being released from detention was, according to the report, "only the beginning of their ordeal. In many cases police officials harass and intimidate former detainees and their families for years after their release" (paragraph 13).
"Neither Mr Gulvin nor Mr Denholme were able to assist us with specific background evidence regarding record-keeping operated by the Ethiopian authorities. However, it is in our view abundantly clear that amongst the different opposition and dissident parties and groups currently existing in Ethiopia, the authorities make a particular priority of targeting those who are members of OLF or are known OLF sympathisers. The OLF is committed to armed struggle and does not regard itself as willing to work within the existing political and Parliamentary system. In such circumstances it would be entirely reasonable to assume that the Ethiopian authorities maintain centralised records on persons suspected of OLF involvement. The many instances highlighted in the CIPU report and Human Rights Watch report of repressive action taken against the suspected members and sympathisers strongly indicate in our view the existence of a centralised and relatively sophisticated system of record-keeping. Whether at the point of return at the airport in Addis Ababa or subsequently, we consider it reasonably likely therefore that this appellant would come to the adverse attention of the authorities as someone who had been previously arrested on suspicion of OLF involvement and had breached conditions of her release."
"In our view there is a current risk to OLF members and sympathisers who have been previously arrested and detained on suspicion of OLF involvement or who have a significant history, known to the authorities, of OLF membership or sympathy. We have not considered that it is suitable for designation as a country guideline case because we did not have sufficiently full evidence or submissions. But equally it is right that we should make known, by reporting, the views we have reached on the basis of the latest available evidence as presented in this case" (paragraph 17).
The Tribunal's assessment of the evidence in the present case
(a) is the subject of an outstanding arrest warrant for OLF involvement;
(b) is a member of the (now proscribed) MTA; and
(c) undertook information-gathering activities, via the internet, relating to both the OLF and the MTA, which fact is now known both to his employers and the authorities.
(a) OLF members and sympathisers;
(b) persons perceived to be OLF members or sympathisers; and
(c) members of the MTA;
will, on return, be at real risk if they fall within the scope of paragraph 66 or 67 below.
Senior Immigration Judge P R Lane
Annex - Documentary Evidence
Evidence Relating to the Appellant's Particular Claim
Appellant's Evidence Concerning Entry Conditions