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
IMMIGRATION APPEAL TRIBUNAL
(MRS JAJC GLEESON)

		Royal Courts of Justice Strand London, WC2A 2LL
		12 November 2003

1. LADY JUSTICE ARDEN: I will ask Lord Justice Dyson to give the first judgment.
2. LORD JUSTICE DYSON: This is a renewed application for permission to appeal against the decision of the Immigration Appeal Tribunal which, by a decision published on 18 July 2003, dismissed the appellant's appeal from a decision of the adjudicator which was published on 13 September 2002. That, in turn, had dismissed the appellant's appeal on asylum and human rights grounds against the refusal by the Secretary of State to grant the appellant asylum.
3. The appellant is a citizen of the Ivory Coast. His case is that he has a well-founded fear that, on his return to that country, he will be persecuted by reason of his involvement in the Rasseblement de Republique ("RDR") Political Party. He says that he is particularly at risk because he is a Muslim from the northern part of the country where the RDR is particularly strong and from which, as I understand it, it emanates.
4. An event which has assumed significance in these proceedings was an attempted coup on 19 September 2002, which it is said has had an adverse impact on the way in which the authorities in the Ivory Coast perceived persons who are known to be Muslim supporters of the RDR and in opposition to the authorities. It was this change of circumstances primarily which led the Tribunal to grant permission to appeal against the decision of the adjudicator. It is necessary to examine certain passages of the determinations of both adjudicator and Tribunal.
5. The adjudicator recordeds the appellant's evidence in a passage starting at paragraph 13 of her determination. She records that the appellant said that on 6 April 2000 he was arrested at a rally along with 30 other people. He was subjected to beatings whilst in detention and allowed to leave after some two weeks. He also said that on 6 August 2001 he attended a secret meeting at the university he attended. He said that this was a very important meeting with all the heads of the RDR present. He described how the military entered the premises, used tear gas and detained a number of them, including himself. He said he was beaten by soldiers who wanted to know why he had joined the RDR. He was eventually released on 20 October because of a presidential referendum.
6. In paragraph 17 of the determination the adjudicator sets out her conclusions. She says that she found the reasons given by the appellant for going into hiding on release from his first detention incredible, not least because the appellant said that the families were allowed to bring food. She also said that in his SEF statement the appellant had said:

"We were threatened with death if we revealed to anyone where we had been and what had happened to us."

The adjudicator said she did not believe there were any threats of death. It did not make sense to threaten anybody with death for revealing what was already public knowledge, nor did it make sense for someone to go into hiding in order to avoid going into rallies or marches. The adjudicator also said that she did not believe that, having released the appellant, the police would make routine visits simply to ensure that he was not organising rallies.

7. At paragraph 19 the adjudicator said that the appellant raised for the first time his religion as a ground for persecution at the hearing before her. In his submissions, the appellant's representative said that the appellant had told him that he did not practise religion as such. Moreover, not only did a Protestant priest help him to leave the country, but in both of his statements he referred to "our local priest Father Arthur" and "our priest".
8. At paragraph 20 the adjudicator said:

"I think it is probably true that the Appellant was arrested and detained. However, that in itself does not establish an entitlement to asylum.

....

The questions he said he was asked during detention and the fact that he was released without charge on both occasions shows that the government and police had no particular interest in him. In addition, he said his father became a member of the RDR in 1996 and worked for the community as the vice president. Yet he was unable to cite any instances of problems his father had experienced and his father is still in the Cote d'Ivoire."

9. At paragraph 22 the adjudicator said that the situation had improved since the election of President Gbagbo in October 2000. She said, finally, at paragraph 25:

"Even had I found the Appellant's story to be fully credible, and bearing in mind the lower standard of proof which applies when I assess the risk, which I set out earlier, it appears to me that the Appellant would not face persecution for a Convention reason if he were to be returned to the Cote d'Ivoire."

10. The appellant was given leave to appeal to the Tribunal, in part because the adjudicator had attached importance to the improvement in the situation in the country. There was also fresh evidence in relation to the coup and the response of the authorities to that coup which the Tribunal, in giving leave, said:

"Might arguably have led her to a different conclusion."

The tribunal said at paragraph 14 of its determination:

"Having regard to the decision of the Court of Appeal in Oleed, an appellant wishing to rely on changes in the country situation must now show that the Adjudicator's determination is plainly wrong and unsustainable before the country situation can be re-examined as at the date of hearing before the Tribunal."

11. The Tribunal then examined the passages in the adjudicator's determination between paragraph 17 and 20 which contained her analysis of the evidence. In particular the Tribunal referred to paragraph 19 of the adjudicator's determination, saying of it:

"The adjudicator was not satisfied that this appellant was a Muslim, particularly given his reference to 'our local priest, Father Arthur' and 'our priest'. That is a really serious flaw in his overall argument, which is based on his being a Muslim. If he is not a Muslim, his claimed membership of the RDR becomes considerably less likely."

At paragraph 17 the Tribunal said:

"Even if we are wrong and the Oleed determination does not bind this Tribunal, the matters set out as risk factors in paragraph 2 of the skeleton argument are not supported by positive findings by the Adjudicator."

The Tribunal expressed their conclusions at paragraph 18:

"For all of the above reasons the Tribunal is not satisfied that it would be right for us to interfere with this Adjudicator's determination. We do not find that that determination is 'plainly wrong and unsustainable' and even if we are wrong about that, given the properly argued credibility findings which we have discussed in this determination, we do not find that the appellant's situation is such that, if he were to be returned to the Ivory Coast today, that action by the United Kingdom authorities would engage either the Geneva Convention relating to the Status of Refugees 1951 and its protocols or the European Convention on Human Rights and Fundamental Freedoms 1950."

12. The Tribunal accordingly dismissed the appeal. In Oleed [2003] INLR 179 the Secretary of State had successfully appealed the adjudicator's determination. The court held that there was nothing wrong with the adjudicator's decision. On behalf of the Secretary of State it was submitted that since the situation in Sri Lanka, the relevant country in that case, had changed, it would be "useful for the Tribunal to consider the position in the light of the present day position."
13. The court refused to remit the case to the Tribunal for further consideration, notwithstanding the change of circumstances in the country. The relevant paragraph is in the judgment of Schiemann LJ at paragraph 32.
14. It seems to me that it is highly arguable that the Tribunal in the present case misunderstood what Schiemann LJ was saying in Oleed. The question in Oleed was whether this court should remit the case for a rehearing to the Tribunal. The question in the present case was whether, in hearing the appeal from a decision of the adjudicator, the Tribunal should have regard to evidence as to the current situation in the Ivory Coast. On the face of it, that evidence was relevant and should have been taken into account: see section 77(3) of the Immigration and Asylum Act 1999.
15. The Tribunal went on to consider the appeal without regard to Oleed. It held that the risk factors identified by the appellant were not supported by the findings of the adjudicator. Those risk factors, set out at paragraph 2 of the appellant's skeleton argument, were:

"(a) The appellant was the General Secretary of the student section of the RDR;

(b) the appellant's father is a member of the RDR since 1996 and has actively worked in the community on behalf of the RDR;

(c) the authorities have a record of the appellant's past involvement in the RDR and will also have a record of his past arrests and detentions;

(d) the appellant is a Muslim;

(e) the appellant will be regarded as being of Northern origin."

16. On behalf of the appellant, Miss Hooper submits that the adjudicator failed to make adequate findings of fact as to the appellant's credibility, such that it was arguably not open to the Tribunal to dismiss the appeal on the alternative basis to which I have referred. She submits that there should have been explicit findings as to whether the appellant was politically active; if so was this the reason for his detention or detentions, in what level of activity did he involve himself and was he ill-treated whilst in detention?
17. With some justification, it seems to me, she makes the point that there is no explicit finding on these separate questions. In my judgment the adjudicator should have made specific findings on these points. However, it is quite plain that, implicit in the determination is a finding that, whatever the level of involvement of the appellant in the RDR, it was not sufficiently serious to be of real interest to the authorities. It is also implicit in her determination that she did not accept that the appellant had been subjected to any ill-treatment. She was plainly unimpressed with the credibility of the appellant. It is of particular relevance that the adjudicator did not believe that the appellant was a Muslim and his claim to being a Muslim was fundamental to his case (as I read the evidence as recorded by her) that he was a member of the RDR.
18. The question, therefore, is whether it is arguable that the evidence as to the changed circumstances since the coup of 19 September 2002 is such that, whatever the position was as found by the adjudicator before that event, there is now a real risk that if the appellant were returned to the Ivory Coast he would be persecuted; in other words, whether he now has a well-founded fear of persecution on the grounds of his membership of the RDR. I am prepared to assume that he was a member of the RDR but, for the reasons to which I have referred, a low level member of that organisation.
19. Miss Hooper has not addressed any submissions, either orally or in her skeleton argument, to suggest that, even a low level supporter of the RDR, is now at risk of persecution on grounds of his membership of that organisation. Included in the material before us is the United States Department of State Annual Report for Cote d'Ivoire, dated 31 March 2003.
20. I have read the passages in that report which have been highlighted by those representing the appellant and skimmed the rest of the document. It seems to me that there is nothing in that document which suggests that a low level supporter of the RDR is currently at risk of persecution on grounds of his membership of that organisation. It follows, therefore, that even though I accept it is arguable that the Tribunal misdirected itself on Oleed, it was entitled to dismiss the appeal on the grounds that, even taking account of the changed circumstances, the findings on credibility made by the adjudicator would be fatal to the prospects of any appeal.
21. I would accordingly dismiss this application.
22. LADY JUSTICE ARDEN: I agree. I, too, would proceed on the basis that an arguable case for permission to appeal has been shown in respect of the Tribunal's approach to the earlier decision of this court in Oleed, but I would particularly like to associate myself with the observations my Lord has made about the desirability of the adjudicator making clear and express findings of fact on all the matters in issue. These matters should not be left to implication. However, in this case the adjudicator was clear on at least one point, namely that the Government had no interest in the appellant. I, too, consider that there is no basis for thinking that this would be any different after the failed coup on 19 September 2002.
23. Miss Hooper did not appear before the adjudicator, but has put her case today on behalf of her client persuasively. At one point in her submissions she submitted that the risk of return should be assessed by reference to increased political activity. As I see it, the court would have to determine the risk of persecution on the basis of the past level of activity of the appellant.
24. Notwithstanding Miss Hooper's persuasive submissions and careful answering of the court's questions, I am not satisfied that she has shown a sufficient prospect of success on appeal.
25. Accordingly, I, too, would dismiss the application.
26. LORD JUSTICE DYSON: After we had delivered our judgments, Miss Hooper said that she would have wished to submit that even a low-level supporter of the RDR was, at the time of the appeal to the IAT, at risk of persecution. She drew our attention to a number of passages in the State Department report of 31 March 2003, and in particular to a passage in the Human Rights Watch report of November 2002 which is at pages 123-125 of our bundle. This passage includes the following:

"....those connected with the RDR, whether leading figures or ordinary members, have been singled out for particularly harsh treatment".

But the passage goes on to say that most of those who have been arrested and detained have been released after a couple of days, and it is not suggested that they have been ill-treated during their detention. This consistent both with the evidence given by the appellant of his own experiences before he left the country, and with other passages in the two documents relied on by Miss Hooper. The report also refers to harassment of Muslims (which must mean those who practise, or are thought to practise, the religion). As already mentioned, the adjudicator was not satisfied that he was a Muslim at all. I have carefully considered the various passages to which Miss Hooper has drawn our attention. I am not persuaded that they show that at the time of the appeal a low-level supporter of the RDR was at risk of persecution.