QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
B e f o r e :
|THE QUEEN ON THE APPLICATION OF GOPAL GAUTAM||(CLAIMANT)|
|IMMIGRATION APPELLATE AUTHORITY||(DEFENDANT)|
|SECRETARY OF STATE FOR THE HOME DEPARTMENT||(INTERESTED PARTY)|
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(Official Shorthand Writers to the Court)
MISS J MULCAHY (instructed by the Treasury Solicitor) appeared on behalf of the DEFENDANT
Crown Copyright ©
"I fled my country by fear of persecution by the Nepalese government. I was an active member of the Maoist political party (the exact name is: Nepal Communist Party - Mabobadi) in Nepal, since the beginning of March 1999 . . . the date I first joined the party. The actual government and the police in Nepal are committing injustices towards the Nepalese nationals. I was dealing with administration work and organising meetings."
In his interview he described himself as a general worker in the party (page 35).
"We were each detained in a different cell. I was given a bit of food once a day and no sanitary facilities were available. During detention, I was asked many questions relating to the Maoist party and its related fighter group. As I was just a general member of the party, I did not have any idea and therefore did not have anything to tell them. They were trying to make me talk anyway, by beating me up on several occasions with sticks and with their boots whilst I was hanging by my feet. I was treated like an animal."
"Because when I was arrested initially I did not admit anything about been involved in Maoists. They could not find any evidence to prove otherwise."
"I was so angry at the way I had been treated, the torture I had received that I wanted to do as much for the Maoists as I could, as long as I was not caught by the police again." (Page 42)
During the course of giving evidence he was asked if he had taken part in any Maoist party activities. Although it is not clear, it appears that the answer he gave to that question related to the few days after he had been released and before his home was searched. According to the Adjudicator "he stated that he advised people against drinking alcohol and gambling". He also said in evidence, so the Adjudicator wrote, that he had not taken part in the distribution of leaflets. In his September statement he had written that he had been delivering pamphlets during this period in a village called Birkhani. As to the alcohol and gambling, the Adjudicator wrote:
"He could not explain how these related to the activities of the Maoist party - he merely stated that these activities were against the principles of the Maoist party." (Paragraph 12 of the determination)
" . . . about 5 or 6 policemen visited my house searching for me, but I was not there at the time. I was staying with some friends at the time. They asked my parents where I was and they answered that they did not know. They searched my bedroom and took my identity card, my birth certificate, my passport and my school certificate before leaving. 4 days later, when I returned to my house, my parents told me that the police came in looking for me. They advised me to leave the country as my situation was getting serious because the police were searching for me now." (Page 31)
"It is pertinent to note that the Appellant only applied for asylum when there was a raid in the house where he was living and it is difficult to accept his claim that he did not know how to apply for asylum when he arrived here."
Miss Webber criticises that comment. She points out that the objective evidence supports the proposition that many of those who arrive in this country claiming asylum are ignorant of the proper procedures. Although I see some force in the argument made on this point by Miss Webber, it is not a decisive matter.
"If the Authorities were interested in the Appellant, then I do not see why he was released."
Miss Mulcahy, who appeared for the Secretary of State, as the interested party, was not able to cast light on that sentence. On the face of it the Adjudicator appears to be doubting the claimant's account of having been arrested because he was released. That would obviously not be a rational justification for doubting the evidence of the arrest and detention.
"If they were interested in pursing him some few days after he stated he was released then there does not seem to be any logical reason why they should not wait for him to return home. The Appellant did not claim to be in hiding during the time that he was released."
I agree with Miss Webber that it is not rational to conclude that the claimant had not been arrested because the police had not, on his account, waited until he had returned home (some 4 days later).
"His explanation that he carried out Maoist party activities during the 5 day period is in my view quite bizarre, i.e. advising people against drinking alcohol and gambling. I really do not see on what basis I am expected to believe the Appellant that these were the principles of the Maoist party. There does not appear to be any connection."
The Adjudicator had earlier stated that the claimant:
"Could not explain how these related to the activities of the Maoist - he merely stated these activities were against the principles of the Maoist party." (Paragraph 12)
"The Maoist success has been derived in large measure from the way in which they have capitalised on the huge social inequalities that exists between castes, regions, ethnic groups and genders. In this connection, a campaign against the sale and consumption of alcohol in regions where the Maoists have influence certainly has been part of their agenda. This picks up on the grievances expressed by women's groups in rural areas, where alcohol abuse by their men folk and consequent maltreatment of wives and daughters has become a burning issue."
"Mr Guatam . . . was detained and tortured for 3 nights and 4 days, due to his membership of the Maoist party. He was released with a warning that his life would be danger if he continued his political activities. Due to his ongoing political activities, policemen sought after him. Fearing for his life he fled the country. His examination revealed evidence of depression, anxiety and post traumatic stress disorder."
He had earlier described the depression as mild.
"His detention and torture as well as the fear of being caught by the police are responsible for his post traumatic stress disorder. His history in examination confirms his diagnosis." (Page 21)
Miss Mulcahy agreed that the last sentence means: "his history and examination confirm the diagnosis."
"I should state for the sake of completeness that I have read the medical report, although neither representative addressed me on this [there is a dispute about that] and there is no reference to this in the skeleton argument submitted by Miss Rowley-Fox."
"The report states that the examination revealed evidence of depression, anxiety and PTSD."
The Adjudicator then went on to deal with the treatment needed and the availability of that treatment in Nepal. It is not clear from the determination whether the Adjudicator realised the potential importance of the passage cited in paragraph 28 above from the report.