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
		18 March 2004

1. LORD JUSTICE DYSON: The appellants in this case are husband and wife. They are citizens of Colombia. Their asylum appeals were heard together. They appeal with the permission of Buxton LJ against the decision of the Immigration Appeal Tribunal of 20 August 2003 dismissing their appeals from the dismissal on 21 October 2002 by the Adjudicator of their appeals against the refusals of their asylum claims by the Secretary of State.
2. Their case before the Adjudicator was as follows. The first appellant ("M") had a business in Santa Rosa. He was also a committee member of the Neighbourhood Association ("the Association"), which was funded by the Government, and which operated in much the same way as a local council.
3. On 28 July 2001, a man who said that he was a member of the Patriotic Party ("UP") approached him at one of the Association's meetings and offered to supply the Association with plant and materials. UP is a revolutionary party. The offer was refused because of UP's known links with the FARC guerrilla. A few days later, M's business partner received an extortion demand for 20 million Pesos. M and his partner refused to pay. They reported the matter to the police on 28 August 2001 and the man was arrested. The business partner was murdered on 10 September 2001. Believing that he would not be protected by the police, M and his family left the country. He arrived in the United Kingdom on 20 October.
4. Despite the difference of detail between the accounts given by the two appellants, the Adjudicator found that they were both honest witnesses. He held that it was reasonably likely that the murder was as a result of the refusal or inability of M and his partner to meet the extortionists' demands. At paragraph 32, the Adjudicator said that the evidence did not establish that the man from UP was acting unlawfully or that there was a link between the incident of 28 July 2001 and the subsequent extortion demand.
5. At paragraph 34, the Adjudicator said:

"It is clear from the appellant's evidence that he was not being targeted for extortion because of his involvement with the community association. He had been selected simply because he operated a business which his extortionists considered had sufficient income to meet their demands. As a matter of fact, this was untrue."

6. At paragraph 37, he said:

"The use of extortion, euphemistically described as 'protection' by FARC is well-documented. It is clear, however, that it is likely to be the more profitable businesses that will be targeted, although general extortion rackets and blackmail appear to be almost universal."

7. At paragraph 40, the Adjudicator explained why M's asylum claim failed, in these terms:

"I am satisfied that the appellant and his family are fleeing from the general insecurity that exists in Colombia. I am not, however, satisfied that they satisfy the requirements of Refugee Status. After the closure of his business, the appellant took his wife to the safety of her parents. It is apparent that the appellant could have remained with his wife's family. The appellant himself stayed with his father in Santa Rosa. His father continues to live there. The appellant and his family are no longer viable targets for extortion, if they ever were. They are unlikely to have been targeted by FARC as a result of the scale of their business. Although the appellant has produced a demand for protection money, this is a document that could easily have been produced by any word processor and I am not satisfied that the demand places this family in the position of any greater vulnerability. In any event, with the closure of the business, that risk has now passed."

8. Finally, at paragraph 41, the Adjudicator said:

There is nothing in the appellant's account of his past history that will lead him to be specifically targeted by any group. In particular, his involvement with the community association has no bearing on his present plight."

9. The second appellant's claim was based on the same facts as those relied on by her husband and was rejected for the same reasons. They were given leave to appeal to the IAT on the grounds that it was arguable that the Adjudicator had overlooked certain items of evidence. The material before us does not indicate what these items were. The IAT's determination of 20 August 2003 included the following:

"7. At the beginning of the hearing, counsel for the appellants told the Tribunal that in a telephone conversation in March 2003, four months ago, the appellant's father had supposedly told him that the President of the Santa Rosa local Neighbourhood Association had been kidnapped by the FARC. The appellant had not chosen to provide a witness statement or any corroborative evidence in this respect, or give notice of this development in his claim before the hearing.

8. Counsel's transmission of the first appellant's remarks is not admissible as evidence; that is outwith her role in these proceedings. If on the other hand she is to be regarded merely as making submissions they can bear very little weight as they were unsupported by any evidence (even a witness statement) from the appellant or documents from Colombia.

9. Counsel was unable to identify facts or matters before the Adjudicator which were disregarded or given correct weight, and these appellants have not satisfied the Tribunal that the Adjudicator's determination is plainly wrong or unsustainable (Oleed), so we are not required to take that particular change in circumstances into account in determining whether this appeal should be allowed.

10. The appellants' argument as to risk on return is that because of the known link between the UP and FARC, the extortion demand for 20 million Pesos from the first appellant's business should be regarded as part of the process which began with the UP man offering help to the local Neighbourhood Association, and that, as such, the persecution is political and the Adjudicator erred in considering the two events as separate.

11. This argument stands or falls on the credibility of the FARC threat. The appellant relies on a number of documents, of which the least credible is the threatening letter (page 43 of the appellants' bundle, preceded at p42 by its translation). Page 43 is a document typed in capital letters. It is not on any sort of headed notepaper. It is unsigned and the Adjudicator was fully entitled to regard that document as less than convincing and not credible even to the lower standard required to satisfy the Geneva Convention relating to the Status of Refugees 1951 and its protocols and the European Convention on Human Rights and Fundamental Freedoms 1950.

12. Furthermore, in oral evidence, the appellant told the Adjudicator that he was aware of several other businesses that had been closed down by FARC in a similar manner, in particular an ice-cream vendor, with no political links. It follows that the Adjudicator did not err in reaching the conclusion that the circumstances which caused the appellant and his wife to flee from Santa Rosa were not related to Refugee Convention persecution but to simple extortion, and the Refugee Convention claim fails."

10. On 4 September, the appellants applied to the IAT for permission to appeal to this court. Their solicitor has sworn affidavits saying that the bundles sent to the Tribunal included certain new material (to which I shall shortly refer). This included documentary evidence of the kidnapping of Senor Duque, the President of the Santa Rosa Association, that counsel had mentioned to the Tribunal as recorded at paragraph 7 of the Tribunal's determination. This application was dismissed on 10 September 2003.
11. It is clear that the new material was not seen by the members of the Tribunal who dismissed the application. The appellants' solicitor states that he sent the bundles, including the new material, by recorded post on 4 September, and there is indeed a Post Office receipt bearing that date in the papers before this court. It is clear from the Tribunal's reasons for dismissing the application that they did receive bundles. It remains a mystery as to why the bundles did not include this new material. It may be that there was some administrative oversight in the office of the IAT. Be that as it may, in these unsatisfactory circumstances, I consider that justice requires that this court should approach the present appeal on the footing that the new material was available to the IAT when they dismissed the application for permission to appeal and when they did not exercise the power under Rule 30(2)(c) of the Immigration and Asylum Appeals (Procedure) Rules 2003 ("the 2003 Rules"), to set aside the Tribunal's determination and direct that the appeal to the Tribunal be re-heard.

The new material

12. The new material consists of a witness statement by M, dated 17 February 2004, which refers to a number of documents which were not before the Adjudicator or the IAT at its hearing on 9 July. The appellants wish to rely on this material as showing that they were targeted by FARC for political reasons, that is M's membership of the Association and the links between the Association and the Government. In his statement, he says:

"I confirm that I spoke with my father on the telephone in March 2003. I called him in Santa Rosa, Colombia. He only informed me of the fact that the President of my Neighbourhood Association, Mr Jose Oriel Torres Duque, had been kidnapped. My father did not go into any detail over the telephone as to what had happened. I think he was too scared to do this.

3. In the second week of July 2003, I contacted Mr Henry Aguedo Ocampo, a member of the Association's committee in Colombia. It is then that I discovered that a letter headed 'public announcement' had been sent by FARC to the Association. Further that this letter and the kidnap of Mr Duque had been reported to the authorities. I also learnt that the newspapers had published an article about Mr Duque's kidnap.

4. It is correct that I mention the telephone call that I had made to my father in March 2003, for the first to my counsel, on the day of the hearing on 9 July 2003. After the hearing, I contacted Mr Ocampo.

5. I received 4 documents by post from Mr Ocampo, on the morning of 18 August 2003 and my wife took them to the solicitors's office that afternoon. The documents were then translated."

13. That is M's explanation as to how he had came to be in possession of the new material. The first document is entitled, "Public announcement", and is dated 6 January 2003. It is an announcement by FARC. It was received by the Association on 7 January. It includes the following:

"CONSIDER THE FOLLOWING:

1. That the co-operation of the traditional political parties, capitalist parties, and organisations with President Alvaro Uribe Velez.

2. That political leaders promote and support with meetings and regional information to the President.

3. That popular organisations have created some groups in order to give an emphatic NO to support to 'defensores del pueblo'.

RESOLVED:

1. Exert a strict control on the movements and activities made by the mentioned organisations.

2. Will be considered military objective all the board of directors above mentioned as well as their followers who collaborate with this 'Plan Colombia'.

3. Who break this disposition will be responsible for the consequences that the fact could occur to the representatives and followers."

14. The second document is a report to the police, dated 4 February 2003, by Senor Duque -- the President. The report included the following:

"Yesterday, in the afternoon, we received a phone call, the person identified himself as member of FARC, who told us that according to an investigation carried out by his group of intelligence, we are not complying with recommendations made in the public announcement and that anyone who break this new military measure will suffer the consequences given in the numeral 3 of that announcement. Due to all circumstances above-mentioned, I make this report against the members of FARC, who have threatened us of death to my colleagues and myself ...

Question: Tell to this office have you been threatened of death in other place or in other way by FARC?

Answer: We have not been threatened in other place neither in other way, but this is enough to realise that our lives and our family's lives are in danger.

Question: State if you have something else to add, correct or amend to this report.

Answer: We are scared with this situation because our lives and our families' lives are in danger, we also requested the protection from the competent authorities in order to do not have the same luck of our colleague and friend Mr Pena Montes, who fled the country because the constant threats made by this insurgent organisation."

15. The third document is dated 17 March 2003. It is another report by the Association sent to the police. It states that Senor Duque was abducted by FARC on 15 March and that the kidnappers warned the Association that they would carry out reprisals if the warnings made in their public announcement were not taken seriously. This document includes:

"Question: Tell to this office which events do you make reference in this case?

Answer: The organisation to which we belong has been threatened by the guerilla, FARC, you can confirm this with the report No 1025 made on 4 February where we stated how we had been threatened and we also want to report that this office knew about the danger that the members of our organisation have, we have not received any sort of protection by the competent authorities."

16. Finally, there is a newspaper article, dated 17 March, which referred to the kidnapping of Senor Duque, and stated:

"This offensive fact is attributed to the FARC, because this movement had been threatened for this insurgent organisation. Torres Duque was intercepted for strong armed men who were in two vans Mazda in a place called 'La Estrella' with friends, his friends who were at the moment of the kidnapping gave this information; with the kidnapping of Mr Torres Duque are two the members of this Communal Movement who have been victims of this organisation, the other one was the prosecutor, Mr Robeiro Pena, who fled the country, the same than the Mayor and other politicians who have been threatened.

These acts are part of the threats, kidnappings and murders that members of the FARC carry out against popular and political leaders of the region."

The grounds of appeal

17. At the material time an appeal to the IAT lay with leave on the facts as well as on the law (see the Immigration and Asylum Act 1999, Schedule 4, paragraph 22). An appeal to this court from the determination of the IAT lies with leave on a question of law material to that determination (see paragraph 23(1) of Schedule 4 to the 1999 Act).
18. Miss Soora submits that this court should allow, (a) the appeal against the IAT's decision of 20 August to dismiss the appeal, and/or (b) the appeal against the failure of the IAT on 10 September to exercise their power to set aside their earlier determination under Rule 30(2)(c) of the 2003 Rules. Both submissions are based exclusively on the new material. There is no challenge to the finding of the Adjudicator that the appellants were the victims of simple extortion on the basis of the material that was before him; nor is there any challenge to the finding by the IAT to similar effect on the basis of the material that was considered by the Tribunal in relation to their determination on 20 August. It follows that the new material is crucial to this appeal.

The appeal against the determination of 20 August 2003

19. The extent to which a mistake of fact can amount to an error of law for the purposes of founding an appeal on a point of law, was recently considered by this court in E and R v Secretary of State for the Home Department EWCA Civ 49. At paragraph 66 of his judgment, Carnwath LJ, giving the judgment of the court, said:

"In our view, the time has now come to accept that a mistake of fact giving rise to unfairness is a separate head of challenge in an appeal on a point of law, at least in those statutory contexts where the parties share an interest in co-operating to achieve the correct result. Asylum law is undoubtedly such an area. Without seeking to lay down a precise code, the ordinary requirements for a finding of unfairness are apparent from the above analysis of CICB. First, there must have been a mistake as to an existing fact, including a mistake as to the availability of evidence on a particular matter. Secondly, the fact or evidence must have been 'established', in the sense that it was uncontentious and objectively verifiable. Thirdly, the appellant (or his advisers) must not been have been responsible for the mistake. Fourthly, the mistake must have played a material (not necessarily decisive) part in the Tribunal's reasoning."

20. Carnwath LJ summarised this paragraph in slightly different language at paragraph 91(ii) of the judgment in these terms.

"ii) Such an appeal may be made on the basis of unfairness resulting from 'misunderstanding or ignorance of an established and relevant fact' (as explained by Lord Slynn in CICB and Alconbury)."

21. Miss Soora submits that the established and relevant facts as to which the IAT were mistaken in this case were, first, that there was no evidence that FARC were interested in M for political reasons, and, secondly, that there was no evidence that FARC were interested in the Association for political reasons. As is clear from the passages that I have cited, the principle articulated by this court in E and R was closely and carefully circumscribed. This needs to be emphasised. If the principle is applied too broadly there is a real danger that this will lead to an unacceptable conflation of errors of law with errors of fact. It is necessary to maintain the distinction since this court cannot entertain appeals on fact. That is why in E and R the court stated that it was a necessary, but not sufficient, condition for a mistake of fact giving rise to unfairness as a separate head of challenge in an appeal on a point of law, that the mistake should be as to fact or evidence which is relevant, as well as uncontentious and objectively verifiable. The fourth condition is also important. The mistake must have played a material, though not necessarily decisive, part on the decision under appeal.
22. In my judgment, the new material relied on in the present case does not demonstrate that the Tribunal or the Adjudicator were mistaken as to the existence of evidence that FARC were interested in M for political reasons or that FARC were interested in the Association for political reasons. I accept the submission of Mr Kovats that the new material sheds but little light on the nature of FARC's interest in the Association or M in 2001. It does provide some evidence that FARC were interested in the Association in 2003 for political reasons. This seems to have been not because the Association was politically active, but because it was funded by the Government. But, as Mr Kovats points out, the FARC announcement of 6 January 2003 does not purport to address the situation in 2001 or 2002. Its very terms indicate a change as from the beginning of 2003. The same point can properly be made in relation to the report to the police dated 4 February 2003. The third report of 17 March refers back to the warnings made in FARC's announcement of 6 January. Here too there is nothing to indicate that the events and concerns expressed related back to 2001 or 2002.
23. From the appellants' point of view, the newspaper article represents the high watermark on this issue. It does link the plight of M with that of the kidnapped Senor Duque and describes both as acts committed by FARC against "popular and political leaders of the region", but the source of the newspaper article is not disclosed. I do not regard this as satisfying the stringent test of "uncontentious and objectively verifiable" evidence. I acknowledge that, taken as a whole, the new material would have some limited probative value as to the position that existed in 2001. The new documents cannot be said to be irrelevant. But for the reasons that I have given, they are of very limited relevance. They are far from establishing that the decisions made as to the position in 2001 were mistaken.
24. I should add that it is notable that, although M has made a witness statement, he does not in that statement give any evidence which attempts to link the contents of the new material with his own personal position as it was in 2001.
25. That would be a sufficient reason for deciding that the appeal against the Tribunal's decision of 20 August should be dismissed. But I would go further. In my judgment, it would be wrong to admit the new material as fresh evidence in any event, having regard to the Ladd v Marshall principles as they are applied in a public law context, and, in particular, in the context of an asylum appeal. As is well-known, these are (a) that the fresh evidence could not have been obtained with reasonable diligence for use before the Tribunal; (b) that, if admitted, the fresh evidence should probably have had an important influence on the result; and (c) that the fresh evidence is apparently credible. As was said at paragraph 82 in E v R, the Ladd v Marshall principles have an important place in public law:

"We would respectfully accept the statement of the Master of the Rolls quoted in the previous paragraph as accurately reflecting the law applicable in a case of this kind (whether it takes the form of a direct appeal from the IAT to the Court of Appeal, or comes by way of judicial review of the IAT's refusal of leave to appeal). However, we would not regard it as showing that Ladd v Marshall principles have 'no place' in public law. Rather it shows that they remain the starting point, but there is a discretion to depart from them in exceptional circumstances."

26. The same point is made at paragraph 91(iii):

"The admission of new evidence on such an appeal is subject to Ladd v Marshall principles, which may be departed from in exceptional circumstances where the interests of justice require."

27. Mr Kovats submits that the appellants fail at the first hurdle since they have not explained why they were unable to place the new material before the Tribunal. M's witness statement does not explain why he did not follow up the telephone conversation with his father in March 2003. It seems that he did not mention the substance of his conversation to his legal representatives until 9 July. Further, there is no explanation as to why it took Senor Ocampo from the second week in July until 18 August to post the documents to M, nor any explanation as to why the appellants' solicitor failed to put the Tribunal on notice that they were waiting for further relevant documents on which they wished to rely. In the absence of any such explanation, I would hold that the new material could, with reasonable diligence, have been obtained for use at the hearing of 9 July. It has not been suggested that M is an uneducated and unsophisticated person, who did not understand the significance of the new material.
28. Mr Kovats also submits that the new material fails to satisfy the second limb of the Ladd v Marshall principles. First, he relies on the fact that the Adjudicator found that the appellants could safely have remained with the second appellant's family in Cartago (see paragraph 40) -- in other words that internal relocation was an option. The Tribunal endorsed the Adjudicator's findings and his reasoning. Accordingly, Mr Kovats submits, the new material would not have had an important or material influence on the result of the appeal.
29. Secondly, Mr Kovats submits that there is no evidence that the State of Colombia was unwilling or unable to provide reasonable protection against persecution by non-State agents (if indeed it was persecution at all: see Horvath v Secretary of State for the Home Department [2001] 1 AC 489). It is true that the evidence shows that FARC was responsible for the killing of M's business partner and the kidnapping of Senor Duque, but it is also clear from the evidence that the Association reported their concerns about FARC to the police and that the police took their duties seriously: hence, for example, the arrest of the man who made the demand for 20 million Pesos. Horvath makes it clear that the standard of protection which disqualifies victims of non-State agents from international protection, is not one which eliminates all risk. It is "a practical standard" which takes account of the duty owed by the State to all its own nationals (see per Lord Hope at page 500G to H). There is no sufficient evidence in this case that the State of Colombia did not provide protection which satisfies Lord Hope's practical standard test.
30. Miss Soora counters these submissions by arguing that, if the new material had been before the Tribunal, they would have been more likely to accept the contention advanced by the appellants that FARC were responsible for the harassment that M had suffered, and that FARC's motives were primarily Political. But, in my judgment, there is no answer to Mr Kovats' submissions, nor has Miss Soora suggested that there are any exceptional circumstances in the present case which would justify this court exercising its discretion in the interests of justice to depart from Ladd v Marshall principles. I would have arrived at the same conclusion without explicitly applying Ladd v Marshall principles, but on the basis of the guidance given at paragraph 66 of E and R. It will be recalled that the ordinary requirements for a mistake of fact giving rise to a finding of unfairness on an appeal on a point of law include that the appellant or his advisers must not be responsible for the mistake, and that the mistake must have played a material, though not necessarily decisive, part in the Tribunal's reasoning. It seems to me that these requirements substantially mirror the first and the second of the Ladd v Marshall principles. This is not surprising because, like the principle enunciated in E and R, those principles too are grounded in fairness.
31. For these reasons, I would dismiss the appeal against the determination of 20 August 2003.

Appeal against failure to set aside the determination under Rule 30(2)(c) of the 2003 Rules

32. Part 4 of the Rules deals with the procedure for applications for permission to appeal on a point of law to the Court of Appeal. Rule 30 provides that a Tribunal may (a) grant permission to appeal, (b) refuse permission to appeal, or (c) subject to paragraph (3) (which is immaterial for present purposes), set aside the Tribunal's determination and direct that the appeal to the Tribunal be re-heard. The first obvious but important point to make is that the power to set aside the determination is discretionary and its exercise will only be interfered with by this court where the Tribunal's decision was plainly wrong.
33. The relevant principles for the exercise of the power to set aside were considered in E and R at paragraph 35:

"We see nothing in Rule 30 (2)(c), in its present form, which should prevent the IAT from directing a re-hearing in such cases, whether or not it accepts that there was an arguable error of law in its original decision. The starting-point, no doubt, must be an application to appeal from the IAT on a point of law (see Rule 26). But such an application having come before the IAT, there is nothing in the wording of the Rule (or the enabling statute) to restrict its discretion to direct a re-hearing, as one of the three possible ways of dealing with the application. On the other hand, it is clear that the IAT is under no duty to direct a re-hearing in any particular circumstances. Regard must be had to the context, which is providing for limited review of an otherwise final decision. The principle of finality is therefore an important consideration. To justify reopening the case, in the absence of an apparent error of law, the IAT would need to be satisfied that there was a risk of serious injustice, because of something which had gone wrong at the hearing, or some important evidence which had been overlooked. Furthermore, where it is asked to consider new evidence, we see no reason why it should not apply the same principles as a court of appeal to the admission of new evidence in a similar context."

34. It is important to note at the outset that no application was made to the Tribunal for an order under 30(2)(c). Nevertheless, Miss Soora submits that the Tribunal should have made such an order of their own initiative. I shall start by considering what the position would have been if an application had been made and it had been refused. It is not suggested by Miss Soora that there was a risk of serious injustice because something went wrong at the hearing, or because some important evidence had been overlooked by the Tribunal. Rather, she submits that the power to set aside should have been exercised because the new evidence showed that the Tribunal's determination of 20 August was, or at least may well have been, wrong. But as is made clear at paragraph 35 of E and R, the Ladd v Marshall principles (flexibly applied as indicated at paragraph 82 of that judgment) are applicable in this context just as they are applicable in the context of appeals. If an application had been made for an order under Rule 30(2)(c), and the Tribunal had applied these principles correctly, they would have refused the application. Their reasons would have been the same as those which have led me to dismiss the appeal against the determination of 20 August 2003. An appeal against such an exercise of discretion would have been bound to fail.
35. The appellants' failure even to apply for an order under Rule 30(2)(c)cannot put them in a better position than they would have been in if they had made such an application.
36. For all these reasons, I would also dismiss the appeal against the failure under Rule 30(2)(c) of the 2003 Rules to set aside the determination.
37. LORD JUSTICE MAY: I agree that the appeal should be dismissed for the reasons that my Lord has given.
38. LORD JUSTICE POTTS: I also agree.

Order: appeal dismissed. No order as to costs.