QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
B e f o r e :
|THE QUEEN ON THE APPLICATION OF YEMBA FERUZI||(CLAIMANT)|
|THE SECRETARY OF STATE FOR THE HOME DEPARTMENT||(DEFENDANT)|
Smith Bernal Wordwave Limited
190 Fleet Street London EC4A 2AG
Tel No: 020 7404 1400 Fax No: 020 7831 8838
(Official Shorthand Writers to the Court)
MR P PATEL (instructed by THE TREASURY SOLICITOR) appeared on behalf of the DEFENDANT
Crown Copyright ©
Monday, 24th March 2003
"9.-(1): This paragraph applies to an appeal under Part IV of this Act by a person who claims that it would be contrary to the Convention for him to be removed from, or to be required to leave, the United Kingdom, if the Secretary of State has certified that, in his opinion, that claim is one to which -
(a) sub-paragraph (3), (4), (5) or (6) applies; and
(b) sub-paragraph (7) does not apply.
"(2) If, on an appeal to which this paragraph applies, the adjudicator agrees that the claim is one to which this paragraph applies, paragraph 22 does not confer on the appellant any right to appeal to the Immigration Appeal Tribunal.
"(4) This sub-paragraph applies to a claim under the Refugee Convention if -
(a) it does not show a fear of persecution by reason of the appellant's race, religion, nationality, membership of a particular social group, or political opinion...
"(7) This sub-paragraph applies to a claim if the evidence adduced in its support establishes a reasonable likelihood that the appellant has been tortured in the country to which he is to be sent."
"He stated that he was released by Colonel Kabango so long as he worked for the Colonel. The reason he was requested to work was because he spoke both Swahili and Lingala and therefore appeared to have some use for the colonel's purposes. He was then after release from prison introduced to a man by the name of Moussa and found accommodation... He said that he dealt with letters... Moussa would collect letters from military camps in Kinshasa and take them to himself. He then put on a disguise such as a hat so that he didn't look like a Rwandan, took the letters that were normally given to him by Moussa on Tuesday and the following day would take those letters to the main post office in Kinshasa. Sometimes he would get public transport, other times he would walk. If he took public transport it would take him one hour to get to Kinshasa. If he walked it would take him three hours. At the post office he was given a post office box number 10937 and with a key provided would open that post box, deliver letters and retrieve any letters from that box. Sometimes he stated that he collected parcels that he believed contained cash. He had no idea what the letters contained. The following Tuesday Moussa would then pick up the letters and any parcels from his home. He formed the view that the Colonel was on the brink of overthrowing the government. He said that he was paid 200 US dollars to start with and that sum then reduced to 150 US dollars. He was paid in cash by Moussa and was made to sign a receipt.
"On the 14th January 2001 he saw the Colonel who arranged for him to leave the country as the government had found out what was happening. He was given a passport by the Colonel and told that he was going to the UK. He saw his own photograph in the passport but it was not his name. He was taken to the airport and left..."
"In view of my findings on fact and credibility above I do not find that the Appellant had a well-founded fear of persecution nor do I find that on any occasion he has come to the attention of the authorities save and except that in December 1998 two or three individual soldiers may well have stopped and temporarily detained the Appellant because he was not carrying an ID card and looked Rwandan. That occasion was the action of two or three individuals alone. Before that date and since that date on the Appellant's own acceptance he has not come to the attention of the authorities in any way nor has he suffered any form of harassment or persecution. Given that I do not find credible the account of his involvement with Moussa or the Colonel there is in my view no well-founded fear of persecution should he be returned to the Democratic Republic of Congo."
"In my judgment, the question whether a claim shows a fear of persecution, for the purposes of paragraph 9(4)(a) depends solely on the content of the claim. A claim which asserts that the asylum seeker has a fear of persecution based on facts which, if true, would involve Convention grounds, is a claim which 'shows a fear of persecution' on such grounds. Different words would have been used if the test were whether the asylum seeker has a factually well-founded fear of persecution on Convention grounds. Paragraph 9(4)(a) is concerned with what a claim shows, not with the evidence to support the claim."
"There are no pleadings or other formal documents which can be said to constitute a claim. It must therefore be the sum total of the material put forward by the applicant for asylum to substantiate his claim.
"The Secretary of State and the Special Adjudicator are only entitled to certify under paragraph [9(4)(a)] if that information on its face fails to show either a relevant fear, or a fear for a relevant reason. But in coming to that decision, neither the Secretary of State nor the Special Adjudicator would be inhibited from certification by a mere assertion of the relevant fear or fear for a relevant reason if the material provided to support it could not conceivably do so."
"According to the Appellant Colonel Kabango was involved in a very high risk strategy of intrigue designed one assumes to overthrow wholly or in part the government."
"The court has always had - and, it seems to me, unless expressly removed by statute, should always retain - a discretion in this jurisdiction in relation to the relief that it grants. That does not mean that the discretion to decline to grant relief is one which will be lightly exercised. The court will bear well in mind the consequences of failing to grant relief on the consequential rights of the applicant before it. It is only therefore in the most plain and obvious cases that it is likely that this court would decline relief to a person who might otherwise be able to avail him or herself of statutory appeal rights, such as in the present case. But it does not seem to me that there is any jurisdictional restriction on the right of this court to exercise its discretion against granting relief in appropriate cases."
"It was finally stated that if he was to return he would be returning without documents, that he was part Rwandan, and would be of interest to the government. In those circumstances he would be arrested at the airport as a failed asylum seeker, tortured and given his history of informer work treated as a traitor and killed."
"The writer of this report cannot possibly ascertain that the story told by Mr Feruzi is true. He can only state that it is plausible and some elements of it not impossible. Given the hypothesis that the facts given by Mr Feruzi are correct, there is a reasonable degree of likelihood that Mr Feruzi will be exposed to persecution or at least to cruel, inhuman and degrading treatment. The main reasons for this are the huge risks for identification with his Rwandan background and his activities on behalf of the rebellion, which equal high treason to the Congolese state."
"At page 14 the expert quite properly states that if the facts given by Mr Feruzi are correct then the account is plausible and some elements of it not impossible in keeping with the general features of the country at present. However as indicated above I do not accept the hypothesis that the facts given are correct and I do not find the account given to be credible."
"In the view of the Tribunal, the Adjudicator's adverse credibility findings are sound. He set out his reasoning fully and particularly... The tribunal considers that he was entitled not to accept the Applicant's claim to have been a paid informer for Colonel Kabango. His further reasoning... is also persuasive. The absence of reasoning for upholding the Secretary of State's certificate is not a matter that in any way goes to invalidate the quality of the Adjudicator's reasoning on the essential issues before him. In the light of his conclusions on the evidence, the Tribunal considers that his findings on risk on return are sound."
"We only interfere in findings of fact if we are persuaded that they are clearly wrong or if there is no evidence which can properly found such a finding of fact."
"... would have a real prospect of success; or there is some other compelling reason why the appeal should be heard."