England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE LTA 98/6962/CMS4

(APPEAL TRIBUNAL )

Royal Courts of Justice

Strand

London WC2

Wednesday 31 March 1999

B e f o r e:

LORD JUSTICE PETER GIBSON

LORD JUSTICE THORPE

LORD JUSTICE POTTER

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FARAJ

Appellant

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SECRETARY OF STATE FOR THE HOME DEPARTMENT

Respondent

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(Transcript of the handed down Judgment by

Smith Bernal Reporting Limited, 180 Fleet Street,

London EC4A 2HD

Tel: 0171 421 4040

Official Shorthand Writers to the Court)

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MS F WEBBER (Instructed by Gill & Co, London WC1X 8PF) appeared on behalf of the Appellant

MR S CATCHPOLE (Instructed by The Treasury Solicitor) appeared on behalf of the Respondent

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J U D G M E N T

(Approved by the Court )

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©Crown Copyright

Wednesday 31 March 1999

JUDGMENT

Peter Gibson L.J.: Abdulaziz Ahmed Faraj appeals from the determination of the Immigration Appeal Tribunal, which was notified to him on 26 June 1998, dismissing his appeal from the determination of the Special Adjudicator. By the latter determination the Special Adjudicator dismissed Mr. Faraj's appeal against the refusal by the Immigration Officer of leave for Mr. Faraj to enter the United Kingdom following the refusal of the Secretary of State to grant Mr. Faraj's application for asylum. Mr. Faraj was refused leave to appeal by the Tribunal and, on application to this court, by Pill L.J. as the single Lord Justice. But Mr. Faraj renewed his application and Hutchison and Chadwick L.JJ. granted him leave to appeal.

The facts

Mr. Faraj was born on 17 September 1972. He is a Kenyan national and a Muslim of Arab origin. His father was a head postmaster. Mr. Faraj went to school in Mombasa until November 1991. He was accepted for entry to the University of Nairobi from mid-February 1993. Before then, in February 1992 he joined the Islamic Party of Kenya ("IPK"). This is a Muslim party which until recently was not registered as a party in Kenya and while so unregistered its members could not lawfully assemble. Its spiritual leader has for some time been Sheikh Balala, a Muslim fundamentalist. Mr. Faraj, from March 1992 until his University course commenced, worked full-time for the IPK. His activities at that time included organising and attending meetings, attending demonstrations, distributing leaflets and giving lectures in a mosque. When he commenced his University course he became a member of the Muslim Students of the University of Nairobi. He finished his University studies in August 1993. He claimed that he was involved in 7 incidents between May 1992 and January 1994 when he was beaten or tortured by the police or by members of KANU (President Moi's party) or by members of the UMA, a Muslim group set up by the Government of Kenya and supporting President Moi. Of these 7 incidents, two were at anti-government demonstrations of which one led to an attack by the police on a mosque, on two occasions the police came to his home and on two occasions he was detained and brutally treated while in detention. On the second occasion in January 1994 he was detained for two nights. He was then released with apologies for what had happened, but told to report to the police station weekly. With the help of the IPK he obtained a passport and a ticket to leave Kenya and he was given by Sheikh Balala the name of a helpful immigration officer. By bribing officials he was able to leave Kenya and he arrived in the United Kingdom on 4 February 1994 when he claimed asylum based on a fear of persecution for reasons of race, religion, nationality, membership of a particular social group or political opinion.

The Secretary of State by a letter of 10 July 1995 refused the claim. He said that he was aware of recent events relating to the IPK, including the Kenya Government's refusal to register it and the clashes between the IPK and the UMA, but he could find no evidence to suggest that support for and membership of the IPK would result in unfair treatment by the Kenyan authorities. He was satisfied that the UMA was also unregistered and that Mr. Faraj would have been able to deal with any complaints against members of the UMA through the Kenyan authorities. The Secretary of State understood that there was no official or state religion in Kenya and no one should have reason to fear persecution on account of his religious beliefs. He said that he was aware that a number of IPK supporters had been arrested by the Kenyan police but he understood that those arrests had taken place because of the violence involved in some clashes with the UMA. He was not prepared to accept that those arrests had been due to a policy of persecution towards IPK supporters or Muslims in general and he was satisfied that Mr. Faraj's support for the IPK would not cause him to fear persecution from the authorities were he to return to Kenya. He pointed to the fact that Mr. Faraj had been able to obtain a passport as indicating that Mr. Faraj could not have been of any great interest to the Kenyan authorities and would not be now. The Secretary of State also pointed to the fact that Mr. Faraj had been able to pass safely through immigration control when leaving Kenya and to the fact that Mr. Faraj's brother, who Mr. Faraj claimed had been harassed by the police, and the rest of Mr. Faraj's family were still living in apparent safety in Kenya, although Mr. Faraj's brothers, uncle and cousins were claimed by him to be IPK activists. The Secretary of State concluded that Mr. Faraj had not established a well-founded fear of persecution for a Convention reason.

Mr. Faraj then appealed, claiming asylum on the basis of a fear of persecution at the hands of the Kenyan authorities arising from membership of the IPK. The Special Adjudicator heard the appeal on 8 May 1997 and Mr. Faraj gave oral evidence. In a reserved determination the Special Adjudicator rehearsed the evidence and made findings of fact. He noted that Mr. Faraj, in describing his work for the IPK in distributing pamphlets and informing people of IPK meetings, had himself commented that he was just a youth member. The Special Adjudicator accepted that the dispersal of demonstrators by police was often heavy-handed, but said that if Mr. Faraj had been beaten at a demonstration it was not because he had been identified as an IPK activist but because he had been present at a demonstration which turned violent. He referred to evidence of general harassment of people who had been associated with the IPK but commented:

"For such harassment to amount to persecution it must show a persistency. There is no evidence of this before me."

The Special Adjudicator then referred to a facsimile letter dated 8 May 1997 and purporting to come from Sheikh Balala. That letter ("the Balala letter") was submitted to the Special Adjudicator after the completion of the hearing, apparently in response to a query from the Special Adjudicator as to why a claim by Mr. Faraj to have been close to Sheikh Balala was not supported by the Sheikh or the IPK. Mr. Tarnoky, then representing Mr. Faraj, said that he had rejected that as it might be self-serving. But unfortunately for Mr. Faraj less wise counsel then prevailed and the Balala letter was produced. The letter is notable for the strong way in which it seeks to support Mr. Faraj's case for asylum, attributing to him an importance for a man so young which is hard to believe. The writer "confirms" that Mr. Faraj was "a leading member of the IPK in Mombasa". 11 assertions are made of Mr. Faraj including that he was "one of the most important members of the IPK Mombasa Old Town", that he was "closely associated with myself despite threats to his wellbeing" and that he was "enabled to find sanctuary with the help of myself and a sympathetic immigration officer". The Special Adjudicator said that he was unable to give any weight to the document "irrespective of its authenticity" because he found it to be entirely self-serving for a number of reasons. They included the fact that there was no evidence that Mr. Faraj held any position in the IPK.

The Special Adjudicator referred to medical evidence produced on behalf of Mr. Faraj which he accepted was consistent with the torture Mr. Faraj described that he had suffered. But the Special Adjudicator continued:

"The torture the appellant suffered in detention is one dimension to his evidence and has to be considered not in isolation but together with all of the evidence. Whilst the US State Department report of January 1997, reports of torture in detention, as the appellant claimed to have suffered, the report also continues that the government have arrested and prosecuted police officers responsible for these abuses. It is also apparent from the report, that brutal treatment was not meted out only to political detainees, but to all detainees, and regrettably appears to be endemic in places of detention in Kenya."

The Special Adjudicator found significance in Mr. Faraj being allowed to complete his University course and in the absence of even a reprimand, if as he claimed he was perceived as either an IPK activist or an activist on behalf of Muslim Arabs at the University. The Special Adjudicator concluded:

"On the totality of the evidence, which I have carefully considered in the light of the submissions of the representatives, and with guidance from the UNHCR Handbook, I find the appellant has not discharged the onus on him that there is a 'serious possibility' he would be persecuted either for his political opinion or his ethnicity were he to be returned to Kenya. He has not given either a plausible or credible account to substantiate his claim to the lower standard of Kaja [[1995] Imm. A.R. 147]. In evidence before me, the appellant was more keen to express a political opinion, than answer questions asked of him."

I have referred to the Special Adjudicator's findings in some detail because on the appeal by Mr. Faraj to the Tribunal, those findings were accepted by the Tribunal as findings properly made. The Tribunal reviewed the evidence. It accepted that the political situation in Kenya was serious and that human rights abuses by the authorities did occur, but said that it had to look at the evidence as it appertained to Mr. Faraj himself and to endeavour to ascertain whether he had established that there was a reasonable degree of likelihood or serious possibility that he would be persecuted for a Convention reason if he were now to be returned to Kenya. The Tribunal said:

"We have closely examined all the evidence, including the letter purporting to be from Sheikh Balala, and have considered the findings of the Special Adjudicator, but even though the Appellant had been detained and beaten by the police, those detentions and beatings arose not on account of the Appellant's membership of the IPK or on account of his being Muslim, but because of his attendance at demonstrations, at which violence had broken out and that the police were carrying out their duties to keep the peace and were not acting with any deliberate aim of the persecution of individuals, or for any ethnic or racial reason, in view of the fact that the clashes were between two rival Muslim factions, the UMA and the IPK. And further, any arrest on account of his distribution of party leaflets, or, as he later changed his account to say, that he was in possession of a file of political papers, was, again, not shown to have been carried out by the police for any reason other than in their aim of keeping the peace and not with any deliberate policy of persecution of IPK supporters, or Muslims in general.

In our considered opinion, the Appellant was only an ordinary youth member of the IPK, he did not belong to a political family, his father was a public servant of long standing, and any detentions or beatings that he suffered, although not condoned by us, were carried out by the police in the course of their duties in keeping the peace. There was no deliberate policy of persecution in the actions of the police and, as regards the letter purported to be from Sheikh Balala, we are not satisfied as to its provenance, but, apart from that, we find that, on examining it, the statements made in it with respect to the Appellant, are very much at variance with the Appellant's own evidence both at interview and in evidence before the Special Adjudicator."

It said of the conflicting evidence that it served only to show that the Balala letter was a self-serving document and to destroy rather than support Mr. Faraj's evidence. It referred to the documents produced as to the present situation in Kenya and said that it was satisfied that if he were as active and prominent in the IPK as he had tried to make out through the production of the Sheikh Balala letter and if he had established that he would be of sufficient interest to the Kenyan authorities, the Tribunal might possibly be able to conclude that he could establish a well-founded fear of persecution, but that on the evidence it was not satisfied that Mr. Faraj had established to the requisite standard a well-founded fear of persecution for a Convention reason.

The appeal from the Tribunal is brought under s.9 Asylum and Immigration Appeals Act 1993. For Mr. Faraj to succeed, he must demonstrate that the Tribunal erred on a question of law material to that determination. Let me at this point state what I understand to be the appropriate approach to such an appeal in the light of the authorities.

Mr. Faraj must show that the Tribunal erred in law in relation to his claim for asylum, based as it is on Article 1(A) of the 1951 Geneva Convention as amended by the 1967 Protocol. A refugee is any person who (so far as material) -

"owing to a well-founded fear of being persecuted for reasons of race religion nationality membership of a particular social group or political opinion, is outside his country of nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country".

There must be a genuine fear of persecution which has caused the asylum-seeker to be outside his country of nationality. That is a subjective test. But the fear must be well-founded and that imports an objective test. Thus evidence of past persecution will almost invariably be necessary, although, by definition, the question is whether there is a well-founded fear of its occurring in the future. The burden of proof is on the asylum seeker, but the standard of proof is less than the balance of probabilities : it is sufficient if there is a real danger or substantial possibility of persecution, provided that the persecution is for a Convention reason.

There was some debate before us as to the meaning of persecution. Miss Webber for Mr. Faraj submitted that any torture, even if an isolated incident, amounted to persecution. To my mind that submission conflates two separate, although potentially overlapping, concepts. Persecution may involve physical or mental ill-treatment. Torture is such ill-treatment carried to extremes. But persecution, unlike torture, always involves a persistent course of conduct (see Ravichandran [1996] Imm AR 97 at p.114 per Staughton L.J.). It involves an element of sustained or systematic failure of protection towards the person or group the object of such persecution, as distinct from casual or random acts of violence inflicted on citizens at large (cp. the various attempted definitions discussed by Simon Brown L.J., ibid. pp.106-7). Since the conduct may be directed against a particular person or a particular group of persons, an incident of torture of a person which is the sole incident affecting that person may amount to persecution if there are other incidents affecting a group of which that person is a member. But isolated incidents of torture are not enough to constitute persecution without more.

The questions whether there is persecution and, if so, whether that persecution is for a Convention reason are questions of fact for the tribunal of fact ( Kagema [1997] Imm AR 137). However, in practice the question of whether there is a well-founded fear of persecution involves not only weighing the evidence of any past persecution, but assessing the likelihood of its future repetition in the light of the up-to-date situation; I therefore agree with the view of Simon Brown L.J. in Ravichandran (at p.109) that:

“.... the issue whether a person or group of people have a “well-founded fear [i.e. a real risk - see ex parte Sivakumaran [[1988] AC 958] of being persecuted for [Convention] reasons” .... raises a single composite question. It is, as it seems to me, unhelpful and potentially misleading to try to reach separate conclusions as to whether certain conduct amounts to persecution, and as to what reasons underlie it”.

That composite question inevitably involves matters of fact and degree, and this court can only interfere if the conclusion reached was unreasonable in the sense that no reasonable tribunal of fact could have reached that conclusion.

Miss Webber submitted that the Tribunal's holding that the detentions and ill-treatment suffered by Mr. Faraj were attributable to the police's peace-keeping functions and did not amount to persecution for a Convention reason was unsustainable on the evidence. She referred us to documentary evidence such as the U.S. State Department's report for 1996 on Human Rights Practices in Kenya which adverts to the serious problems in many areas (despite some signs of improvement from the very poor level in 1995), the harassment and intimidation of those opposed to the ruling party and the numerous cases of humiliation, intimidation, abuse and torture by the police of those arrested (although the report also referred to a number of the police being charged with brutality and use of excessive force). She also drew our attention to what Miss Louise Pirouet of the African Studies Centre in the University of Cambridge had said about the violence permitted in Kenya by the Government there and her opinion of the grave danger facing Mr. Faraj if returned to Kenya. She further pointed to the fact that the UMA was set up by President Moi and to evidence that the UMA worked closely with members of KANU and with the police to attack opposition supporters. She relied on the report dated 28 November 1996 of the Medical Foundation for the Care of Victims of Torture which recounts in graphic detail the brutal treatment of Mr. Faraj while in detention and the effect it had had on him physically and psychologically.

I see considerable force in Miss Webber's submissions, attractively presented as they were. The facts to which she drew attention might well have led another Special Adjudicator and another Tribunal to a different conclusion on whether Mr. Faraj had been persecuted for a Convention reason. But there is no doubt that the Special Adjudicator and the Tribunal had to consider in the round all the circumstances and there was evidence from which they could properly conclude that the ill-treatment which Mr. Faraj received was not because of his membership of the IPK and so not for a Convention reason. The heavy-handedness of the police in dispersing demonstrators and the cruel treatment of detainees are well documented in the State Department's report and elsewhere. The Special Adjudicator and the Tribunal were entitled to have regard to the views of the British High Commissioner in Kenya that there was no persecution for membership of the IPK. They could also take note of the reports of violence associated with supporters of the IPK, and of their clashes with the UMA, which provided the basis for the views of the Special Adjudicator that Mr. Faraj, when beaten at or after a demonstration, had been beaten because he had been at a demonstration which turned violent, while the police were carrying out duties to keep the peace. On Mr. Faraj's own evidence many thousands of people attended the demonstrations. Miss Webber criticised the Tribunal for using the adjective "deliberate" when saying that there was no deliberate policy of persecution in the actions of the police. She said that this showed that the Tribunal was importing a higher threshold test than that used in the Convention, persecution being capable of occurring even if not deliberate. But for my part I do not think that the Tribunal was suggesting or applying a different test, but was using the term "deliberate policy" in contrast to the casual violence which the police inflicted on Mr. Faraj not because he was a member of the IPK. The Special Adjudicator and the Tribunal could properly take the view that Mr. Faraj as a very young supporter of the IPK would not be of sufficient interest to the police or the authorities to have a well-founded fear of persecution for a Convention reason.

Miss Webber also attacked the conclusions reached in relation to the Balala letter. She said that the Tribunal appeared to be concerned to uphold the Special Adjudicator's finding rather than to approach the evidence in that letter fairly and with an open mind. She pointed in particular to the fact that in his interview in May 1994 Mr. Faraj had referred explicitly to Sheikh Balala's role in his departure (the Sheikh had supplied the telephone number of an immigration officer) and said that the other inconsistencies between the Balala letter and Mr. Faraj's evidence were only matters of emphasis. In my judgment the Tribunal like the Special Adjudicator was fully entitled to look critically at what the Sheikh purported to say in that letter on which Mr. Faraj chose to rely and to contrast that with Mr. Faraj's own evidence. Most notable is the attempt to aggrandize the role of Mr. Faraj in the IPK. It is to be observed that both the Special Adjudicator and the Tribunal, while not accepting the authenticity of the letter, gave their views on the evidence in it on the footing that it was authentic.

Before us Miss Webber has sought to adduce further evidence relating to the Balala letter in the form of a letter dated 14 July 1998 from the leader of the London-based IPK and an Affidavit dated 30 July 1998 from the interim chairman of the IPK, Sheikh Balala being at that time in prison in Kenya. Although neither document satisfies the tests of Ladd v Marshall [1954] 1 WLR 1489, Mr. Catchpole for the Secretary of State did not object to this court receiving that evidence. That was a very proper attitude in view of the risk to life and liberty which may be involved in an asylum claim. But I have to say that the additional evidence seems to me wholly unimpressive and gives rise to the impression that those connected with the IPK may, in their zealous desire to help asylum-seekers, not be over-concerned with the accuracy of what is being asserted even on oath and may reproduce assertions regardless of their appropriateness. The writer of the letter explained why he was able to confirm the genuineness of the Balala letter: "because I have seen many other such documents and I can confirm that the format of the documents is identical to this one." The Affidavit was from Sheikh Khalifa Mohammed whose name has never featured in Mr. Faraj's evidence, and yet much of what Sheikh Balala said (including 10 of the 11 assertions) is repeated without variation by the deponent as pertaining to him. He includes assertions that Mr. Faraj is "closely associated with myself despite threats to his well-being" and that Mr. Faraj was "enabled to find sanctuary with the help of myself and a sympathetic immigration officer." That evidence does not ring true.

For these reasons, despite the considerable sympathy which I feel for Mr. Faraj because of the ill-treatment which he has received in Kenya, I regret that I am unable to conclude that there is any question of law material to the Tribunal's determination on which he can succeed in reversing that determination. I would dismiss this appeal.

Lord Justice Thorpe: The outcome of this appeal hangs upon Miss Webber’s endeavour to demonstrate that the evidence before the tribunal compelled the conclusion that the appellant had been the victim of persecution for Convention reasons in his country of origin. Plainly the facts upon which the appellant relied were carefully and conscientiously weighed by the tribunal and the submission that those facts compelled a finding for the appellant is manifestly bold. Although I am in no doubt that in the end it must fail I have to say that on the evidence the outcome for which the appellant contended was at least as likely as that which he resisted. There are two respects in which the tribunal’s weighing of the appellant’s case is open to criticism.

First it would appear that the tribunal did not reject the history upon which the appellant relied. The determination was simply that the history relied upon did not amount to persecution for Convention reasons because the appellant’s assailants were police officers acting either to quell demonstrations and disturbances mounted against the elected government or in breaking up confrontations between rival political factions. Now of the seven specific incidents relied upon by the appellant four were certainly open to that categorisation. However in my judgment three were clearly not. The episodes on 6th and 7th August 1993 in Nairobi were clearly episodes of victimisation and torture specifically related to the distribution of IPK leaflets. Secondly the gravest episode of victimisation and torture which occurred on 14th January 1994 in Mombasa followed a detention of the appellant whilst in possession of IPK leaflets. Moreover during the course of the appellant’s abuse his assailants specifically said that they would show how they dealt with IPK people. That episode cannot be categorised as an instance of peacekeeping by any stretch of language.

My second and lesser concern relates to the tribunal’s criticisms of the supportive letters from Sheikh Balala and from the London representative of IPK. Although the material was open to the most obvious criticism I doubt whether it justified doubts as to its authenticity. Further evidence has since been filed which leads me to the tentative conclusion that Sheikh Balala was at least aware of the appellant’s circumstances and anxious to support his case. As is not uncommon in litigation overstated support can be as detrimental or even more detrimental than no support at all. My tentative evaluation of the recent evidence is that the deponent, thinking that he had to reaffirm Sheikh Balala’s support at a time when Sheikh Balala was himself imprisoned, parroted, and ineptly parroted, the earlier document. Although this material does little or nothing to support the appellant’s case I do not myself believe that it undermines it.

However having expressed these reservations I cannot approach the conclusion that it was not open to the tribunal to reject the appellant’s case on the evidence and I too would dismiss this appeal.

Lord Justice Potter: I agree with the judgment of Peter Gibson L.J.