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 IMMIGRATION APPEAL TRIBUNAL

		Royal Courts of Justice Strand London, WC2 Thursday, 26 September 2002

1. LORD JUSTICE RIX: This is an application for permission to appeal by Mrs Marie Johnson, arising out of her claims under the Refugee Convention and the European Convention on Human Rights to asylum in this country.
2. The essence of her claim arises from the following facts which have been accepted by the Immigration Appeal Tribunal. Following the murder of her 13-year old daughter in December 1994 and of her 21-year old son in January 1995 by Tivoli Gardens gunmen linked to gangs supporting the Jamaican Labour Party (or "JLP"), the dominant political force within her neighbourhood in West Kingston, Mrs Johnson, who had informed the police of the name of her daughter's killer, had to go into hiding in a number of different parts of Jamaica because of her fear that the gangs who controlled her neighbourhood would pursue her as an informer, to make an example of her so as to keep control over their neighbourhood. Evidence describes her various moves in hiding over the ensuing three to four years and the way in which in due course in each of those locations she was exposed as a so-called Labourite, that is, someone who came originally from a JLP area, and how that would make her position impossible in areas controlled by gangs affiliated to the rival party, the People's National Party (or "PNP"). Her exposure as a Labourite led, her evidence says, to her sexual exploitation and the endangering of her position and on each occasion when she was exposed and exploited in this way she felt compelled to move her location until she was again exposed.
3. The IAT also accepted her evidence that at about the end of 1996 her brother was also murdered by a JLP gunman; that the father of her eldest daughter's child was also shot and killed; that that daughter's new boyfriend was also shot and killed; and her second daughter's boyfriend was also shot but survived. The tribunal accepted that those crimes were also linked to her difficulties as an informer.
4. As late as April 2001, which was nearly three years after she had entered this country (which she did in November 1998), her partner, who had remained in Jamaica and who has a position of some kind within the JLP hierarchy or its affiliated supporters, went to see the leaders of the Tivoli Gardens gang to ask them to forgive her for having informed the police, so that she could return home. But the response was that the leaders refused to forgive her as they believed that to do so would encourage other people to report incidents to the police.
5. The various decisions given on behalf of the Secretary of State, then on appeal by the immigration adjudicator and then on further appeal by the Immigration Appeal Tribunal, have indicated a developing situation. The decision of the Secretary of State on 26 April 2001 found that the applicant's credibility was poor, that the deaths of her two children arose out of domestic and not political conflict and that there was no evidence to suggest that the attacks of late 1996 were other than random acts of individuals only, unconnected with any pattern or campaign of political persecution. The Secretary of State therefore found that there was no engagement of either Convention at all.
6. On appeal to the adjudicator, before whom there was further evidence, her credibility was no longer in dispute. However, the adjudicator likewise did not consider that the 1996 deaths were in any way related to Mrs Johnson's position as an informer, and also considered that there was no engagement of the Refugee Convention merely because Mrs Johnson was regarded as an informer. As for the Human Rights Convention, the adjudicator found that there was no evidence that she would be at risk of degrading treatment anywhere in Jamaica, although he accepted that perhaps it would be unwise for her to return to her original home environment in Tivoli Gardens.
7. On appeal to the IAT, however, before whom again there was further evidence, although at one point, paragraph 9, they stated that they differed from the adjudicator on what they described as "an isolated wrong finding" (a reference to his decision to ignore the later 1996 deaths, which the tribunal accepted were to be regarded as part and parcel of the whole history) their decision nevertheless appears (although there may be some uncertainty about it) to have followed ultimately a very different analysis. Thus although there is no express acceptance in the tribunal's determination and reasons that there was an even prima facie engagement of the Refugee or the Human Rights Conventions arising out of the whole history of Mrs Johnson's difficulties over the years leading up to her departure from Jamaica, they nevertheless did accept her evidence about those difficulties in its essence and proceeded directly to consider whether she fell outside the protection of those Conventions by reason only of the fact that there were areas within Jamaica to which she could return where she would be safe from either persecution or degrading treatment. They considered, in other words, in detail the question of an internal protection area (or IPA, as it has become known) by reference to the Michigan guidelines. Having considered that question in detail, they appear to have concluded that although both in her original home environment in West Kingston and in the areas in which she had sought to find refuge over the following years Mrs Johnson had not been safe from persecution or degrading treatment, nevertheless there were other areas in Jamaica, which they described as "other previously untried areas" in which there was no reason to think that she would not be safe. They concluded that it would neither be unreasonable nor unduly harsh for her to return such areas.
8. They came to that conclusion despite evidence that she repeatedly ran into difficulties both as an identified Labourite and, on another occasion, having told a man who had protected her her full story and the accusation against her by the gangs in her neighbourhood of being an informer, by reason of his desertion of her. Moreover, the tribunal accepted that wherever she went in Jamaica she would be identified as someone from the West Kingston area. It is argued that such identification would inevitably raise questions which would lead to the exposure of her background and flight. Even so, the IAT felt that in those other untried areas of Jamaica, which they seem to have thought of as being areas outside what they described as mainly poor urban communities where gang-related violence was tied into political rivalry between the two main political parties of Jamaica, the JLP and the PNP, Mrs Johnson would be safe.
9. The three essential grounds raised on this application are that the tribunal erred in law or came to an irrational conclusion, firstly, in allowing the possibility of such safe areas as being a realistic, reasonable and not unduly harsh feasibility when they had acknowledged the possibility of difficulties in obtaining employment or accommodation in such areas; secondly, in concluding that in such areas there would not continue to be a danger of sexual exploitation; and thirdly, in thinking that it was a realistic alternative for a poor woman of Mrs Johnson's status to be able to find an area which was free of political rivalry in circumstances where, by and large, it is submitted, such areas are wealthier areas of the country in which it would be unrealistically difficult for Mrs Johnson to find refuge.
10. In support of this application Mrs Johnson also seeks to apply for the admission of new evidence. That application at present covers an opinion of Hilaire Sobers, dated 23 September 2002, a statement of Amanda Sives of the same date and a response to questions by Yvonne Sobers of 2 September 2002. Miss Sives had given evidence previously to the tribunal. There is also before us a further statement of Mrs Johnson dated 4 April 2002, upon which she relies in her submissions upon this application. That further statement, although before the tribunal upon her application to them for permission to appeal to this court, had not been before the tribunal when they had determined the merits of her case on appeal. It will herefore be necessary, as Mr Gillespie accepts, to apply for permission to admit that statement as well for the purposes of her application to this court.
11. We are concerned that in the light of the new analysis which the IAT appears to have taken in their determination, namely to accept essentially in full Mrs Johnson's evidence as a credible witness, and to accept that on the face of it the. Conventions are engaged upon that evidence, but to find nevertheless that Mrs Johnson falls outside the protection of the Conventions by reason of the possibility of an IPA in other untried areas in Jamaica, that there is evidence, some of it in material already before the tribunal and more, were it to be admitted, in the additional material for which permission will still have to be sought, which, taken together with what appears to be the tribunal's analysis of Mrs Johnson's case, makes this an application which should be considered more fully and at greater length upon an adjourned hearing before the full court on notice to the Secretary of State. It would not in any event be possible for this court on this occasion to anticipate what a full court would consider right to do about the new material subject to the present application to admit new evidence. Mr Gillespie has indicated that he will provide an amended version of that application and will bring within it the additional witness statement of 4 April 2002.
12. Our view is therefore that this application should be adjourned to the full court on notice to the Secretary of State for that court to consider these applications together. We have discussed with Mr Gillespie the possibility that, particularly in the light of the further evidence which Mrs Johnson seeks to bring into her claim, he may well want to consider a possible amendment to his grounds of appeal to cover not only the question of reasonableness and the test of what may or may not be unduly harsh for the purposes of the Michigan guidelines (essentially accepted in this jurisdiction in the case of R v Secretary for the Home Department, ex parte Robinson [1998] QB 929, CA) but also the somewhat separate question as to whether, in any part of Jamaica, Mrs Johnson would be safe from the interest and persecution of the Tivoli Gardens gangs and those gunmen linked to the JLP or, in any event, safe from exploitation on the part of those who might seek to use their knowledge about Mrs Johnson's past in order to blackmail her with the fear of being revealed to such gunmen. Mr Gillespie has said that he would indeed like to consider the possibility of amending his grounds accordingly.
13. For those reasons, therefore, this application is adjourned.
14. LORD JUSTICE DYSON: I agree.
ORDER: Application adjourned to be heard before three Lord Justices with a time estimate of a day. The applicant to file an amended notice of application and further skeleton argument if wished within 21 days and the respondent to provide a skeleton within a further 21 days. (Order not part of approved judgment)