England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
(MR JUSTICE POOLE)

		Royal Courts of Justice Strand London WC2 Thursday, 7th February 2001

1. LORD JUSTICE PILL: This is an appeal against the refusal by Poole J on 10th October 2001 to grant to Liceth Ixomara Medina Vargas permission to apply for judicial review.
2. The appellant sought to review judicially the refusal of the Immigration Appeal Tribunal, on 3rd January 2001, to give leave to appeal to itself from a decision of an Adjudicator made known on 6th December 2000. The appeal to the Adjudicator was against a refusal of the Secretary of State for the Home Department to grant asylum to the appellant.
3. The appellant was born in February 1978 and is now almost 24 years old. She is a Columbian national and arrived in the United Kingdom on 8th May 1999 seeking asylum when she did so. Before dealing with the facts in more detail it is appropriate to refer to the decision of the Adjudicator. The appellant did not appear and was not represented at the hearing before the Adjudicator. Application had been made to adjourn that hearing. Exercising powers granted in the Asylum Appeals (Procedure) Rules, the Adjudicator decided to proceed in her absence.
4. The Adjudicator pointed out that the sole source of evidence as to the appellant's claim consisted of the notes of an interview which took place on the day of the appellant's arrival in the United Kingdom. Having considered the evidence the Adjudicator determined, at paragraph 11:

"In all these circumstances, I find that the appellant has failed, even to the lower standard of proof set out above, to establish a well-founded fear of persecution for a Convention reason if now returned to Columbia."

5. The application for permission to appeal to the IAT was on two grounds: first, on the substance of the matter and second, on the refusal of the Adjudicator to adjourn. The IAT refused permission on the first of those grounds and, having considered the matter on the merits, it was not necessary for them to rule as to the decision of the Adjudicator refusing an adjournment. A further statement had been submitted to the IAT by the appellant and they considered that before making their decision. In one paragraph they referred also to the procedural appeal:

"The Tribunal finds no merits in the grounds of appeal submitted as, while the representatives accept full responsibility for the Applicant's failure to appear and their failure to properly represent her, the evidence which was before the Special Adjudicator was such that, even, now, that the Tribunal has considered the further statement put in by the Applicant, the Tribunal is of the clear opinion that it does not disclose any Convention reason and considers that there is no other conclusion to which the Special Adjudicator could have come."

6. Procedurally the parties are agreed, Mr Manjit Gill QC appearing for the appellant and Miss Giovannetti for the Home Secretary as an interested party. The court should assume, in the appellant's favour, the facts stated in the further statement, to which I have referred. That statement has not, of course, been subject to scrutiny or cross-examination. It is not suggested that there has been any procedural ploy in this case, but the effect is that the appellant had the opportunity to place before the IAT information which has not been the subject of scrutiny and cross-examination and this court is now asked to assume, as accurate, the contents of the statement. We do that in our approach to the legal point which has been raised before us.
7. In her statement, the appellant refers to her having met a man known as Jorge Mendoza when she was 14 years old. She also has a brother who is four years older than her. In June 1997 she began a relationship with Mendoza and in 1998 went to live with him in a house he owned. She said that she thought he had a normal job but noted that "Strange people would come to the house to talk to him... Some of them were armed and wore military uniforms..." CB radios were hidden in the house and political leaflets from the Union Patriotica, which is described in the papers as a leftist organisation, were also present. When she asked Mendoza questions about his activities he was evasive and tried not to answer. He also seemed to be making a lot of money. When speaking to neighbours she received information that he may be an informer and she suspected that while a member of the Union Patriotica he was also an informer for guerillas and paramilitaries. She formed the view that he was a double-agent. She did not know the detail about his activities because they never talked about them and she was not interested in politics wanting just to have a normal life with her boyfriend.
8. In November 1998 Mendoza disappeared and she has not seen him since. By that time she was pregnant and subsequently gave birth, after her arrival in the United Kingdom, to a daughter. Her statement continues in this way:

"13. After that, people came to ask after him. They would first come and ask for him saying it was for the job, that his boss wanted him to go to work. There were five of them, very well dressed, coming in a very nice car. They were armed. I saw one with a gun at his belt, like a bodyguard. They came everyday for a week. I started being very scared.

14. During a fortnight, nobody came and nothing else happened. One night, at one in the morning, three men came. They were dressed in military clothes, they were masked and armed. One talked to me and the other one stayed at the door. Maybe, there were more outside but only three of them entered the house. They came on motorbikes. I did not know them but I think they were from the paramilitaries. They started implying that I was hiding him. They threatened me, warning that if I did not tell them where my boyfriend was, I should be aware of the consequences."

9. The appellant continued her statement by saying that she became frightened and decided to leave the country. However, she failed to obtain a visa from the British Embassy on the ground, she believes, that her mother and sister were already in the United Kingdom. She went to her brother's home in part of the Columbian known as Armenia. She hoped that her partner would turn up again. In January 1999 there was an earthquake in Armenia and that caused considerable hardship to her and her brother and family.
10. In April 1999 she received a message from a cousin, Maria Disney Gaitan, who lived in Dolores. The cousin had first approached the appellant's grandmother and told her that she wanted to contact the appellant because she had news from Mendoza and wanted to know where the Appellant was. The grandmother refused to give any information to the cousin but told the appellant of the approach whereupon her brother took her to Bogota to stay with his grandmother and she agreed to visit her cousin in Dolores. Her cousin told her that someone had been to the house asking after the appellant. He was masked, armed and wore military clothes. He said that as the appellant was her cousin she would know where the appellant was.
11. The narrative continues by stating that the man threatened to kill the cousin if she did not tell him the whereabouts of the appellant. The cousin did not know what to do and suggested that they should travel together to Bogota and leave the country together with the cousin's children. The cousin was afraid of the men returning. It was then that they went to the grandmother's home in Bogota and made arrangements to leave the country. The appellant concluded her statement by stating that she believes that if returned to Columbia she would be killed by the paramilitaries.
12. Article 1A(2) of the Geneva Convention relating to the status of refugees defines a refugee as a person who:

"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..."

13. On behalf of the appellant Mr Manjit Gill submits that the appellant is a member of a social group within the meaning of the Convention as defined in the authorities. She has a fear of persecution by reason of her membership of a social group. Mr Manjit Gill defined the social group as that group of people around Mendoza and linked to him by a relationship akin to marriage.
14. I have indicated that the court approaches the case on the basis of the facts set out in the appellant's statement. Furthermore, we are asked to approach the case on the assumption that no protection is provided by the state authorities in Columbia. It is not in issue but that a family is capable of being a social group within the meaning of the Convention. It is also common ground that the case should be approached on the basis that there is a possibility of ill-treatment if the applicant returns to Columbia. I accept, of course, the definition of social group which was laid down in the House of Lords in Shahana Sadiq Islam v Secretary of State for the Home Department [1999] Imm App R 283 per Lord Steyn at page 301, who had referred to the decision of the United States Board of Immigration Appeals in re Acosta [1985] 19 I&N 211.
15. Mr Manjit Gill relies upon the statement of Laws J in R v Immigration Appeal Tribunal, ex parte De Mello [1997] Imm App R 43, though accepts that the views of Laws J in that case were obiter and also that they have been disapproved in this court in Quijano v the Secretary of State for the Home Department [1997] Imm App R 227. Mr Manjit Gill submits, however, that the case of Quijano is itself, in certain respects, inconsistent with the House of Lords decision in Shahana and furthermore has not been followed in decisions in the High Court and the Federal Court of Australia. Laws J stated:

"Let it be assumed that an individual has been ill-treated or terrorised for a reason having nothing to do with the Convention. He has no Convention rights. But, on the view I have taken, his family may form a particular social group within the meaning of the Convention. If then they are persecuted because of their connection with him, it is as a matter of ordinary language and logic, for reasons of their membership of a family - the group - that they are persecuted. I see nothing anomalous in this."

16. Mr Manjit Gill also relies upon the approach to discrimination set out in Shahana and submits that the treatment complained of the appellant has been by reason of the membership of the group identified by him. The fact, he submits, that the evidence would appear to show that what those threatening her are seeking is knowledge of the whereabouts of Mendoza does not prevent the persecution being persecution of the social group.
17. Miss Giovannetti submits that the necessary elements to show a fear of persecution for a convention reason have not been established in this case. She refers to the grounds of application for judicial review where ground 3 is put in this way:

"It is clear both from the documents before the Special Adjudicator (SA) & from the [appellant's] further Statement (which was before the IAT,) that the [appellant] put her case on the following basis:

(a) that she was being targeted & threatened by an unknown group;

(b) that the group were targeting her as they wanted information as to the whereabouts of her partner;

(c) that she herself could not be sure as to why the group wanted her partner;

(d) that her partner was an active member of the Union Patriotica (UP), a leftist political party, which was involved in a political struggle with rightist paramilitaries &

(e) that she suspected that her partner was an informant for the paramilitaries."

18. Miss Giovannetti submits, with force, that those grounds are not consistent with a claim that the appellant is a member of a social group.
19. I am unable to accept the submissions of Mr Manjit Gill. It is clear that the appellant had a relationship with Mendoza and that he left her in late 1998. She has been approached on one occasion, albeit a frightening one, by men whose object was to seek information about Mendoza's whereabouts. Later her cousin has been approached. There is no dispute but that the object of the approach to her cousin was to find a means of approaching the appellant and with the same object, that is of seeking the whereabouts of Mendoza. I am quite unable to conclude that the treatment of the appellant was by reason of her membership of a social group. First, only those two people have been targeted and there is no evidence of any systematic attempt to approach members of the family, as a whole, such as the brother and grandmother. Second, and fundamentally in my view, it is clear that the two approaches which have been made, the one to the appellant and the other to the cousin, were not the conduct of a campaign against the family, but to obtain information about the whereabouts of Mendoza.
20. In my judgment no case has been established of conduct against the family, or any social group, which could amount to persecution within the meaning of the Convention. The approach has been made to individuals with a view to seeking information about the whereabouts of a former partner of the appellant. The facts do not permit, in my judgment, a finding of persecution on convention grounds in the circumstances. For those reasons I would dismiss this appeal.

LORD JUSTICE MUMMERY: I agree.

LORD JUSTICE LATHAM: I also agree.

MR GILL: My Lords, the appellant has the benefit of public funding. Might there be an appropriate order for assessment on that basis?

LORD JUSTICE PILL: Certainly. We are grateful for the assistance of counsel.