COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE IMMIGRATION APPEAL TRIBUNAL
Strand, London, WC2A 2LL
B e f o r e :
LORD JUSTICE KEENE
LORD JUSTICE SCOTT BAKER
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Steven Kovats (instructed by The Treasury Solicitor) for the respondent
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Lord Justice Keene:
THE ROLE OF THE IAT.
"that the Adjudicator's conclusions are in error of law as well as fact": paragraph 3. (emphasis added)
It proceeded to hear oral evidence and then dealt with the factual issues in the case on their merits, concluding in paragraph 9 that
"the Adjudicator's decision to dismiss the appeal was correct on facts and sound in law."
"Since the IAT now has jurisdiction to determine only points of law, it cannot put itself in the position of the lower court and decide the whole of the case as it stood there. Unless the decision on the point of law determines the case on the basis of the facts already found below, the IAT has to remit."
The other two members of the court agreed. I cannot therefore see any justification for the procedure adopted by the IAT in the present case, which appears to have reflected the earlier and much wider jurisdiction of that body under the Immigration and Asylum Act 1999.
"issues of law in this context are not narrowly understood."
He went on to say at paragraph 51:
"The court can correct 'all kinds of error of law, including errors which might otherwise be the subject of judicial review proceedings' (R v Inland Revenue Comrs, Ex p Preston  AC 835, 862 per Lord Templeman; see also de Smith, Woolf & Jowell, Judicial Review of Administrative Action, 5th ed (1995), p 686, para 15-076). Thus, for example, a material breach of the rules of natural justice will be treated as an error of law. Furthermore, judicial review (and therefore an appeal on law) may in appropriate cases be available where the decision is reached 'upon an incorrect basis of fact', due to misunderstanding or ignorance (see R (Alconbury Developments Ltd) v Secretary of State for the Environment, Transport and the Regions  2 AC 295, 321, para 53, per Lord Slynn of Hadley). A failure of reasoning may not in itself establish an error of law, but it may "indicate that the tribunal had never properly considered the matter … and that the proper thought processes have not been gone through' (Crake v Supplementary Benefits Commission  1 All ER 492, 508)."
The other members of the court agreed.
"are treated as encompassing the traditional judicial review grounds of excess of power, irrationality, and procedural irregularity." (paragraph 42.)
THE EVIDENCE BEFORE THE ADJUDICATOR.
"In practice, however, there are certain barriers to their freedom of movement. Whilst Palestinians can live outside the camps, it is often too expensive for them to do so. Their ability to move to another camp depends whether they can find appropriate accommodation. In the already over crowded southern camps, construction work is prohibited. There is little habitable space available for newcomers, unless they are planning to cohabit with family members. In Beirut, the North and the Bekaa, where there are no building restrictions, living space is more plentiful and rents tend to be less."
"To the contrary: the free expression of opinion, whether on behalf of the gay community or any other group – as well as the freedom of any group to associate – is protected both by the Lebanese constitution and by the Universal Declaration of Human Rights."
It then went on to note that the police in Beirut had summoned the general manager of an internet provider in an attempt to extract the identities of those running a gay Lebanese web site and described those police actions as
"part of a long-standing pattern of hostility not only to gay and lesbian communities but to freedom of expression and association in general."
It asked readers to write in protest. The further ILGA report, dated 2002, commented that a body known as LEGAL, Lebanese Equality for Gays and Lesbians, had reported that the government was cracking down on homosexual activity and that the "Morals Police" actively pursued homosexuals to detain them.
THE ADJUDICATOR'S DECISION.
"This reveals less difficulties for homosexuals than Dr George's report and as it is provided by a Gay and Lesbian organisation, I shall rely on it."
"I find that this was a criminal act by an individual rather than persecution for a convention reason."
No further explanation for this finding was given, but in paragraph 20 the adjudicator said:
"Whatever measures may be taken by the state, it certainly does not mean that serious crimes will not occur. The occurrence of such crimes is not a test for Convention protection. Possible ill-treatment by individuals cannot constitute persecution for the purposes of the 1951 Convention. Bearing in mind both my findings and the objective background information that the authorities do not actively prosecute homosexuals, I find that returning the appellant to Lebanon would not expose him to a real risk of persecution for a Convention reason."
"he has stated that he worked in the city of Sidon. The objective background material indicates that it is possible for Palestinians to move from one camp to another and live outside the camps. The appellant has been out of the country since 14.12.98, a period of over four years."
THE APPEAL TO THE IAT.
"We have been shown no objective evidence that homosexual men face persecution in Lebanon. We have seen evidence that homosexual acts in public attract criminal sanctions as homosexual activity is forbidden under the law in Lebanon. Nevertheless as Dr George admitted and as is borne out by the objective evidence homosexual acts committed in private do not attract adverse attention of authorities and the authorities do not actively go out looking for people engaged in such acts. Taking the evidence of the appellant at its highest as did the Adjudicator, the appellant may well have faced difficulties if he had continued to live in the Camp at the time (1999) but we are far from persuaded that he would now face a real risk of persecution for a Convention reason were he to return to live in the Camp."
"In any event we find that there is overwhelming evidence that the appellant can relocate in Lebanon. The relocation will not cause him undue hardship and nor is it unreasonable to expect him to relocate. There is no prohibition on his relocation as a Palestinian refugee either in law or in reality. As Dr George admitted nearly half the Palestinian refugees live outside the formal limits of Camps. We do not accept the evidence of Dr George that the appellant can not live in a non Muslim area or that he will come to the attention of the "fundamentalists" if he were to live in a Muslim area. There is, with respect, no basis for this assertion. There is no evidence that homosexuals face persecution in Muslim areas in Lebanon either from the authorities or non State agents. There is evidence that homosexual activities conducted openly are not tolerated by the authorities as the law prohibits homosexual acts. With regard to the attitude and the conduct of non State agents to homosexual activities, evidence falls far short of establishing, on the standard of reasonable likelihood, that the appellant faces a real risk of persecution from them if he were to conduct himself with discretion."
"possible ill-treatment by individuals cannot constitute persecution for the purposes of the 1951 Convention"
is, on the face of it, wrong in law. It is well-established that the persecution referred to in Article 1A(2) of the Refugee Convention may be at the hands of those other than state officials, so long as the state is unwilling or unable to provide protection against such persecution: R. v. Secretary of State for the Home Department, ex parte Adan  2 AC 477. Of course, as the House of Lords decision in Horvath v. Secretary of State for the Home Department  1 AC 489 made clear, such state protection is not required to reach a level where no violent attacks at all can occur. It may be sufficient without achieving complete protection. But even where there is a systemic sufficiency of state protection,
"a claimant may still have a well-founded fear of persecution if he can show that [the] authorities know or ought to know of circumstances particular to his case giving rise to his fear, but are unlikely to provide the additional protection his particular circumstances reasonably require " – per Auld LJ in R (Bagdanavicius) v. Secretary of State for the Home Department  EWCA Civ 1605;  1 WLR 1207, at paragraph 55(6)."
"a criminal act by an individual rather than persecution for a convention reason."
That is a puzzling statement, since an act can be both a criminal act by an individual and persecution for a convention reason, and it does not merely lack any further explanation but tends to suggest that the adjudicator did think that criminal acts by individuals could not amount to such persecution. In other words, it reinforces the impression left by the sentence I have quoted in paragraph 26 that she did not properly understand the legal approach to be adopted towards the issue of alleged persecution by non-state agents. In the light of the appellant's evidence about his experiences in the camp, that was one of the vital issues in the case.
Lord Justice Scott Baker: