QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
B e f o r e :
|THE QUEEN ON THE APPLICATION OF SERGIY SHVETSOV||(CLAIMANT)|
|SECRETARY OF STATE FOR THE HOME DEPARTMENT||(DEFENDANT)|
Computer-Aided Transcript of the Stenograph Notes of
Smith Bernal Wordwave Limited
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MR C JACOBS appeared on behalf of the CLAIMANT
MISS J ANDERSON appeared on behalf of the DEFENDANT
Thursday, 13th February 2003
Crown Copyright ©
"The appellant claimed that he left the Ukraine at the end of December 2000. The reason he left was because he had to go into the army".
"The appellant's claim is based upon:
a. his conscientious objection to military service and that the punishment for refusal to serve would be persecutory in nature, and
b. his medical condition is such that if required to undertake military service, that would be persecutory in itself, or amount to inhuman or degrading treatment under Article 3 of the European Convention on Human Rights".
"High morbid excitation towards every issue relevant to the military (military persons), that expresses in fear anxiety, insomnia, bad dreams, intensified sweating, general weakness, headaches and vertigo".
"From the evidence of the appellant it is apparent that these reports were obtained to assist the appellant's father to continue to seek exemption from military service for the appellant on military grounds".
"I am unable to find as being likely that the military authorities in the Ukraine have maintained a continuing interest in the appellant because of his failure to answer to his call-up. I am also unable to find as being reasonably likely that they would have had no regard to the appellant's medical condition if he were to return and have to face a possible call-up".
"Your following request for exemption from military service following a medical report of the psychiatrist is not enough to grant the exemption. If you do not report to the Military Commissariat by 17th September 2001 the appropriate actions will be taken according to the paragraph about evading of military service".
"The appellant has adduced new evidence in the form of an official document dated 27th August 2001 -- copy attached with translation -- which shows that the military authorities refused to accept the appellant's medical condition as grounds for exemption from military service. Please note that the original document is in our possession and is available for inspection upon request. This evidence appears to rebut the Adjudicator's findings that the authorities had either exempted the appellant from military service or that they no longer had any interest in him . . . In the circumstances we would request that you consider . . . a fresh asylum claim based upon the new evidence.
We would submit that the new evidence meets all the criteria for a new claim as set out in rule 346. It is significant and credible; it was not available at the time of the appeal hearing nor when the Tribunal considered the claimant's application for leave to appeal -- the Tribunal's determination was notified 8th October 2001, while the document was received by this firm on 15th October 2001".
"It is just about arguable that the Secretary of State for the Home Department has misunderstood/misdirected himself as to the facts".
" . . . not satisfied that the material provided is sufficiently significant or credible to found the basis of a fresh claim, nor has he been provided with evidence that shows that it was impossible for your client to produce such a document at an earlier stage".
" . . . that he has a well founded fear of persecution on return on account of his religion, race, political opinion, nationality or social group".
"On the contrary, the new document provides no indication to support your client's account of being a fugitive wanted by the authorities for escaping arrest in January 2000. Further, the document does not show that your client would suffer treatment that constitutes persecution within the meaning of the Geneva Convention if he were to run to the Ukraine. Finally, the document refers to a request for an exemption on medical grounds alone and does not engage any matter concerning your client's race, religion, political opinions, nationality, social group so as to fall within the scope of the Geneva Convention.
4. Further the Secretary of State notes that no evidence has been provided of the provenance relating to this document. The omission of evidence indicating the circumstances surrounding the creation of this document and how it came into the possession of your client limits the credence that may be attached to the document, particularly in the light of the adverse findings that have been made concerning your client's case during the appeal process. In addition, no evidence has been produced to show that it was impossible for your client to produce any such document at an earlier stage to satisfy the requirements for a fresh claim".
" . . . in the light of the conclusions above as to the limited significance and credence that may be attached to the document in these circumstances, and in the overall circumstances of this case, the Secretary of State is satisfied that there would be no breach of the ECHR by upholding the Immigration Rules in respect of your client".
"As soon as I received it I brought it into my Solicitors firm".