England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE IMMIGRATION APPEAL TRIBUNAL

		Royal Courts of Justice Strand London WC2 Tuesday, 11th December 2001

1. LORD JUSTICE AULD: This is Mr. Alario Gerardo Urbano Romo's renewed application for permission to appeal a decision of the Immigration Appeal Tribunal upholding the determination of a special adjudicator, in its turn upholding the Secretary of State's decision refusing him leave to enter after refusing him asylum.
2. Mr Romo is a citizen of Colombia. He arrived in this country from Colombia in 1999, claiming that he had been persecuted by the Armed Revolutionary Force of Colombia ("FARC"), a guerilla group and also by the Colombian police. He maintained that there was a risk of future persecution from both bodies if he were to return to Colombia. It appears that FARC, although a guerilla group, has effective control of some 40 per cent of the territory of Colombia.
3. In brief, Mr. Romo's claim is that: first, FARC put him under duress to work for them for three months, from February to April 1999, in the main running errands, delivering parcels and letters and occasionally transporting passengers; second, that he eventually reported to the police what was happening by way of complaint; third, that he felt that the police, instead of welcoming his approach, regarded him as one of the guerillas, which in turn led him not to follow through with his complaint; and, fourth, that subsequently some other police officers in another part of the country had beaten and tortured him.
4. The special adjudicator appears to have found much of Mr Romo's evidence credible, though he was sceptical of his account of having been beaten and tortured by the police. His assessment of the evidence was that FARC had not persecuted Mr Romo for any possible Convention reason, but that he was a victim of criminal activity. At paragraph 18 of his determination he described him as having been a victim of what is unquestionably criminal activity. He also found that the police authority was willing and able to offer him protection and that if some police officers had beaten him up, they were likely to have been rogue officers.
5. The Immigration Appeal Tribunal considered those findings and also the possibility then advanced, with perhaps greater emphasis than it had been before the special adjudicator, that if he returned to Colombia he would be persecuted for imputed political opinion by FARC or the police or both. The basis for that argument was that either side might think he was against them. FARC could regard him as an informer and/or the police could associate him with FARC because he had not followed up his complaint. The Tribunal took the same view as had the special adjudicator. And, as to the additional or more closely pressed argument about possible retribution because of imputed political views, it said, first, as to imputation by FARC, at paragraph 6 of its determination:

"We do not, however, consider that the retribution can be considered as a response to the informer being either part of a particular social group of informers or as having taken part in an activity that manifests a political opinion. The truth of the matter is simply that the informer endangers the criminal, and it is for that reason that the criminal acts against the informer. No construction of a Convention reason is needed in order to understand completely the motives of the criminal; and criminals who do have a political aim (as FARC perhaps do) behave in this respect with precisely the same motives as criminals who unarguably have no such aim."

6. Second, as to imputation by the police, the Tribunal said, at paragraph 8 of its determination:

"The Appellant's claim to fear persecution at the hands of the authorities we regard as rather far-fetched. There is no doubt that, on the appellant's own evidence, he was treated as he was because those beating him thought that he had information about FARC guerillas. The grounds assert that the adjudicator did not pay sufficient attention to that aspect of the case. We regard that criticism as misplaced. The adjudicator reached the conclusion in paragraph 20 of his determination that'a reasonably likely interpretation' was that the incident on the way to Cali was the action of rogue police officers. That was arguably a reversal of the standard of proof, but, given the state of the evidence, we would go further: Insofar as the police behaved in a criminal manner we would say that it is overwhelmingly likely that their actions were uncharacteristic of the police."

7. At paragraph 9, in the last sentence the Tribunal concluded:

"Political opinion, actual, implied or imputed, simply does not come into it."

8. Mr. Romo's renewed application for permission, ably advanced by Mr. Murphy, has two or possibly three main grounds.
9. First, he maintained that the Tribunal wrongly failed to have regard to the possibly mixed motivation of FARC in pursuing informers; that is to say, a motivation both criminal and political, the latter being of some significance in this case, given the polarisation of politics and legitimacy in Colombia and the work that Mr Romo was forced by FARC to undertake. Mr. Murphy placed reliance on the reasoning of the Tribunal in Guitierrez Gomez v Secretary of State for the Home Department [2000] INLR 549 in support.
10. The second main ground was that Mr. Romo does not have to show that the persecutor's sole or even dominant motivation was for a Convention reason. Mr. Murphy relied on Noune v Secretary of State for the Home Department, an unreported decision of this Court C2669 2000. It was enough for Mr. Romo, Mr. Murphy submitted, to show that political motivation existed, certainly to some extent.
11. Third, it is complained that the Tribunal made similar errors in their consideration of Mr. Romo's claim of actual or potential police persecution, in particular as to his allegation of having been beaten up and tortured by the police officers on the road to Cali.
12. The single Lord Justice in refusing permission to appeal expressed the view that the Tribunal was entitled to take the view that any action by FARC would, in the circumstances, be criminal and not persecution for a Convention reason and that, accordingly, there was no error of law. I agree with the single Lord Justice. The observations of the Court of Appeal in Noune as to the possibility of a persecutor having mixed motives do not in the circumstances of this case unseat the Tribunal's decision. It was aware of such reasoning, foreshadowed in its own decision in Guitierrez Gomez and the Tribunal clearly had in mind the submissions of Mr. Romo's counsel based on that earlier decision. The special adjudicator had found on the evidence before him that the motivation of FARC was, as he put it, unquestionably criminal and that no Convention reason had been shown. The same applies to his findings as to the police conduct insofar as he might have been disposed to accept Mr. Romo's account of it. The Tribunal, in the passages I have rehearsed and with Guitierrez Gomez in mind, clearly regarded the criminal motivation in this case as overwhelming, both in the case of FARC and, to the extent that it could be accepted, Mr. Romo's account of the police conduct. Accordingly, I can see no flaw in the Tribunal's reasoning disclosing any error of law that could give this proposed appeal any real prospect of success. I would refuse the application.
13. LORD JUSTICE WARD: I agree.
Order: Application refused; legal aid taxation.