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Ebah, Re Petition for Judicial Review [2003] ScotCS 195 (09 July 2003)

OUTER HOUSE, COURT OF SESSION

P861/02

OPINION OF LORD DRUMMOND YOUNG

in Petition of

EMMANUEL NGOME EBAH

Petitioner;

for

Judicial Review of a determination of TNG Bradshaw, Adjudicator, dated 1 April 2002, and of a decision of the Immigration Appeal Tribunal dated 10 May 2002.

________________

Act: Holmes; Lindsays, W S

Alt: Lindsay; HF Macdiarmid, Solicitor to the Advocate General

9 July 2003

[1] The petitioner is a national of Cameroon. He entered the United Kingdom on 22 February 2001. Four days later, on 26 February 2001, he claimed asylum through a letter from his agents. His claim for asylum was refused by the Home Secretary on 30 May 2001. The petitioner appealed against that refusal, and his appeal was heard by an adjudicator, Mr TG Bradshaw. On 1 April 2002 the appeal was refused. The petitioner then applied for leave to appeal to the Immigration Appeal Tribunal, but leave was refused on 10 May 2002. The petitioner now seeks reduction of the determinations of the adjudicator and the Immigration Appeal Tribunal.

[2] The petitioner's claim for asylum is based on an allegation that, if he were returned to Cameroon, he would be arrested immediately and would be persecuted by the authorities, and further that he might be killed. In his statements in support of his claim for asylum, and in his averments in the present petition, the petitioner makes the following allegations. He attended university in Cameroon, and became involved with a minority student group and was a member of a political party known as the Social Democratic Front. His father was also a member of the Social Democratic Front, and was very active in the party's affairs. The petitioner was arrested and ill-treated on numerous occasions during his time of university. On 3 January 1997 the petitioner's father disappeared. The petitioner made attempts to find his father, and as a result was arrested for making false accusations against the police and for instigating lawlessness on the university campus. He was detained for three weeks, and during that time he was tortured, had his hands tied and was whipped on the buttocks with a wire. He was only released on bail after intervention by his mother and some friends. During the next six months the petitioner continued to make inquiries about his father in secret. Then he began to ask questions publicly, and learned that a neighbour had seen his father being taken away by the police in January 1997. On 7 July 1997 the petitioner again approached the authorities, and was arrested. On this occasion he was tied up by the police, and was whipped with a wire across his back and buttocks and on the soles of his feet. He suffered severe abdominal pain and was taken to hospital. He managed to escape from hospital, and fled to the town of Doula and from there to South Africa. The petitioner arrived in South Africa without a passport in August 1997, and applied for asylum there. This was granted for an initial period of six months. He was given a temporary work permit. In South Africa the petitioner studied tourism at university, and was able to work at the same time. He kept in touch with his friends in Cameroon, and continued in his attempts to find his father. After two years in South Africa he obtained a Cameroon passport from the Cameroon High Commission in South Africa.

[3] After four years in South Africa the petitioner decided to return to Cameroon in an attempt to trace his father. He stated that pressure was mounting on him to discover his father's whereabouts. In his oral evidence before the adjudicator, the petitioner stated that an internal urge to do something about his father had triggered off his return to Cameroon. He withdrew his asylum application in South Africa and flew to Doula Airport, where he arrived on 11 January 2001. He stated that he would have been arrested there but for the fact that the scanning machine crashed. After his arrival his mother tried to persuade him to leave Cameroon because matters were worse than ever. Consequently, within the first three days of returning to Cameroon, he collected a visa application form from the British High Commission, although he did not return it because he really wanted to stay in Cameroon. Thereafter, the petitioner stated that he approached the authorities again and was immediately arrested. He was taken to a police station in Buea, where he was detained for 17 days. He stated that, under severe pressure and intimidation from the police, he had signed a form admitting that the accusation that the police had made against his father was false. On 4 February 2001, the petitioner was taken to the station commander, who was of the same tribe. The station commander let the petitioner escape, and warned him that he had to disappear. Thereafter the petitioner went to Yaounde, where he submitted his application for a United Kingdom visa. In due course he obtained a visa. He stated that he went through Yaounde Airport at midnight on 22 February 2001, when the cousin of a friend was working at passport control; consequently his passport was stamped but not scanned into the computer. He flew from Yaounde to Brussels on 22 February 2001, and then from Brussels to the United Kingdom. The petitioner further stated that pressure had been put on his mother by the authorities in Cameroon to reveal his whereabouts, and that she had had to leave the family home and to move to a different part of the country; in that connection he produced an e-mail dated 1 November 2001, allegedly from his mother. He further alleged that a statement of his arrest (production 2) was still randomly circulating among police stations and major police checkpoints in Cameroon. The petitioner arrived in the United Kingdom later on 22 February 2001, and applied for asylum four days later.

[4] The petitioner's application for asylum was refused, as was his appeal to the adjudicator. His appeal was based on both the Geneva Convention relating to the Status of Refugees of 1951 and on the European Convention on Human Rights. In order to succeed under the Refugee Convention, the petitioner must establish a reasonable likelihood that, owing to a well founded fear of being persecuted for reasons of inter alia political opinion, he is outside the country of his nationality and is unable or, owing to such fear, unwilling to avail himself of the protection of that country. The adjudicator's statement of the reasons for his decision began by referring to the petitioner's political activities. He stated:

"16. In his refusal letter of 30^th May 2001, the Respondent [the Home Secretary] disputes that the Appellant would face persecution solely on the basis of his alleged membership of the Social Democratic Front or status as an Anglophone. Considering the contents of the Cameroon Country Assessment 2001 and in particular paragraph 6.40, I find that the Respondent is correct in this regard. By his own account, the Appellant's problems with the authorities are related to the enquiries which he states he has made in connection with the disappearance of his father, who is a prominent member of the SDF.

17. I further agree with the Respondents that any activities which the Appellant may have had with the SDF were of very low level and not likely to draw him to the adverse attention of the authorities....

18. The Respondent states in the said refusal letter that after his release in January 1997, the Appellant suffered no further harassment until July 1997. This was when he went back to the police to inquire again about his father's whereabouts. Leaving aside the question of the ill-treatment alleged by the Appellant during his periods of detention in January 1997 and July 1997, it is clear from his own evidence that between the months of January and July in 1997 he had no problem with the authorities and that he instigated his detention himself (albeit unjust detention) with his inquiries about his father. He had earlier been released on bail in January 1997. In the circumstances, I find that the appellant was not of any interest to the authorities and they only took action against him when he approached them about his father".

[5] At paragraph 20 of his determination the adjudicator expressly accepted that the petitioner had been ill treated while in detention on two occasions, in January 1997 and July 1997. At paragraph 22 he stated that he gave significant consideration to the fact that the petitioner was in South Africa from August 1997 until 11 January 2001, a period of nearly three and a half years during which time his father's whereabouts were still unknown. The petitioner had stated that thereafter "an internal urge to do something" had prompted him to return to Cameroon to look for his father, although he knew that the political system had not improved. On this matter, the adjudicator found as follows:

"I do not believe the Appellant in this issue. It is my finding that had the Appellant been so worried about his father's whereabouts he would have taken action to return to Cameroon well before a period of almost three and a half years had elapsed. His sole motive, according to him, was to do something for his father yet within two days of arriving back in Cameroon, he said in oral evidence that he picked up a Visa application from the British High Commission 'in order to satisfy people concerned about my safety.' In... his statement of 7^th January 2001 (2002) the Appellant stated normally he would have been arrested at the Doula international airport where he landed. The fact that he was not arrested was due, according to the statement, to the fact that the scanning machine crashed. He would not have known that before he set forth from South Africa. If he knew he was going to be arrested on arrival in Cameroon, what was the point of leaving South Africa? In his oral evidence, the Appellant said that getting back into Cameroon 'was a stroke of luck.' I did not believe his evidence in this regard and I believe that he fabricated the account of the scanning machine crashing to fit in with his story. If his own previous version of events are (sic) taken as being true, he would not have simply return to the International Airport by plane because he would have been immediately arrested".

[6] At paragraph 23-25 of his determination the adjudicator dealt with the petitioner's application for a United Kingdom visa. His visa application was dated 17 January 2001. It appeared from the petitioner's evidence, however, that he had been arrested on 14 January 2001, three days after his arrival in Cameroon from South Africa, and was detained for 17 days, until 4 February 2001. The adjudicator recorded that he did not find that the petitioner provided a satisfactory explanation as to why the visa application form was dated on a day when he was in custody. Moreover, the visa application form made no mention of the fact that the petitioner was seeking asylum. The adjudicator concluded that, if the petitioner was genuine and had nothing to hide about seeking asylum in the United Kingdom, he would have expected him to tell the United Kingdom authorities from the outset that he was seeking asylum. The fact that he did not cast doubts upon his credibility. In addition, the petitioner's United Kingdom visa was dated 18 January 2001, a date when he was allegedly in detention. The United Kingdom visa stamp in his passport clearly ran from 18 January 2001 to 18 July 2001. The petitioner, on the other hand, had stated in evidence that he had not submitted the visa application until after his release on 4 February 2001. The adjudicator concluded that the petitioner had lied about the circumstances relating to the United Kingdom visa application and his period in detention after he returned to Cameroon from South Africa. That damaged his credibility further.

[7] At paragraph 26 of his determination, the adjudicator considered the petitioner's production 2, a document dated 6 April 2001 which, the petitioner claimed, dealt with his arrest. The adjudicator concluded that that document was not genuine. The document itself had an expiry date stated on it, namely 31 April 2001. When asked about that, the petitioner had stated that this was a receipt issued by the Cameroon authorities under a new system of issuing identification documents, because it took six months to issue the formal document; the expiry date was the expiry date of that receipt. The adjudicator did not accept this explanation. In any event, the document had an issue date on it of 31 January 2001, some three months prior to the expiry date. The adjudicator stated that the submission of that document further damaged the petitioner's credibility. Finally, in dealing with the evidence, the adjudicator referred to the e-mail dated 1 November 2001, allegedly from the petitioner's mother, which dealt with events since he had left Cameroon. The adjudicator concluded that this was not genuine.

[8] The adjudicator's conclusions on the petitioner's claim are set out in paragraphs 27-31 of his determination, which were in the following terms:

"27. I am satisfied that any interest which there might be by the police in the Appellant is the result of his own activities in relation to his questions about the whereabouts of his father. I do not consider that the police interest arises by reason of political opinion or imputed political opinion. For the same reason, I do not accept that any ill-treatment of the Appellant, should it arise, would arise by reason of the Appellant's political opinion or imputed political opinion. Furthermore, I accept the Respondent's view in Paragraph 14 of the Refusal Letter of 30^th May 2001 that, as evidenced by his answer to Question 52 in the SEF interview, the Appellant has decided to stop looking for his father. I have noted the views of the Appellant... in... his statement of 7^th January 2001 (2002) in this regard but find that at the date of the SEF interview on 18^th May 2001, the Appellant had decided 'if his father has gone I have to let him go.'

28. Having regard to my findings on credibility and to the fact that even if he were to be believed, the Appellant was no more than a low level supporter of the SDF, I am not satisfied that he would be reasonably likely to be of interest to the police or the authorities in Cameroon were he questioned on his return.

29. As far as the Appellant's ground of Appeal under the Refugee Convention is concerned he has not shown that he has a well founded fear of persecution were he now returned to Cameroon. Accordingly on this ground his appeal will not succeed.

30. Turning to the Human Rights Convention, on the basis of the findings I have made, the Appellant has not established substantial grounds for believing that there is a real risk of harm to him if returned to Cameroon amounting to torture, or inhuman or degrading treatment under Article 3 or that his return to Cameroon would amount to a breach of Article 6 of the ECHR by the United Kingdom.

31. The Appellant has failed to show a well founded fear of persecution were he returned to Cameroon and he has not shown that the refusal decision appealed against is in breach of his human rights, in terms of Section 65 of the 1999 Act. Accordingly the appeal will not succeed".

[9] The adjudicator accepted, in paragraph 20 of his determination, that the petitioner had been subject to ill-treatment at the hands of the Cameroon police on two occasions, in January and July 1997. It was not disputed that those incidents amounted to torture in terms of the Geneva Convention and to cruel, inhuman and degrading treatment in terms of article 3 of the European Convention on Human Rights.

[10] Counsel for the petitioner attacked the adjudicator's determination on four distinct grounds. I should state that the petition for judicial review included a fifth ground, namely a criticism of the adjudicator's approach to credibility, but this was not maintained at the hearing before me. I will deal with each of the four remaining grounds in turn.

1. Distinction between instances of torture in January and July 1997 and other conduct towards petitioner
[11] Counsel for the petitioner referred to the last sentence of paragraph 16, quoted in paragraph [4] above: "By his own account, the Appellant's problems with the authorities are related to the inquiries which he states he has made in connection with the disappearance of his father, who is a prominent member of the SDF". Counsel submitted that in that sentence the adjudicator was referring to his finding (in paragraph 20 of his determination) that there was a reasonable likelihood that the petitioner had been tortured on two occasions in January and July 1997. Those two incidents had been used by the adjudicator to support his conclusion that the petitioner had not been the subject of persecution for a Convention reason because they related to the inquiries that the petitioner had made about his father. The adjudicator had been wrong, however, to rely on those incidents in isolation, because it was clear that the petitioner had given an account of a much wider campaign of arrest and detention that began with his involvement in the SDF and continued through to his leaving Cameroon for the last time; the two incidents in question were part of that campaign. There was no finding in fact to justify separating the two incidents from the remainder of the campaign. Consequently the adjudicator was not entitled to rely on those two incidents to justify his conclusion that persecution had not been for a Convention reason. In any event, any conclusion that persecution was not for a Convention reason was in all the circumstances unreasonable.

[12] In my opinion this criticism of the adjudicator's decision is misconceived. In effect, it amounted to an assertion that the adjudicator gave no sufficient reasons for relying, in paragraph 16, on the two instances of torture in January and July 1997 but disregarding the other mistreatment to which the petitioner had spoken. The critical conclusion reached by the adjudicator in this connection, however, is that stated in paragraph 27, namely that "any interest which there might be by the police in the [petitioner] is the result of his own activities in relation to his questions about the whereabouts of his father". The last sentence of paragraph 16 merely anticipates that conclusion, and should not in my view be read apart from the context of the totality of evidence supporting the conclusion. The reasons that the adjudicator is required to give are in support of the conclusion in paragraph 27. In my opinion his reasons are quite sufficient to justify that conclusion.

[13] He begins his reasoning in support of the conclusion in the earlier part of paragraph 16, by agreeing with the Home Secretary that the petitioner would not face persecution in Cameroon solely on the basis of membership of the SDF. That view was based on the Cameroon Country Assessment for 2001, and reliance on that document has not been challenged. The adjudicator then goes on, in the last sentence of paragraph 16, to make the particular statement criticised by counsel. When that statement is read in context, however, it is clear that ample justification for it is found in the paragraphs that follow. In paragraph 17 the adjudicator refers to the low level of the petitioner's involvement with the SDF. In paragraph 18 he refers to the fact that, during the period between January and July 1997, the petitioner had suffered no further harassment until he went back to the police to ask once again about his father. On the basis of the evidence summarised in paragraph 18, which is quoted in full in paragraph [4] above, the adjudicator concludes that the appellant was not of any interest to the authorities and that they only took action against him when he approached them about his father. In my opinion the findings in paragraph 18 amply justify the conclusion. Nor can it be said that the conclusion was unreasonable on the basis of those findings.

2. Likelihood of persecution on account of petitioner's own political opinions
[14] The second argument presented by counsel for the petitioner was that, in January and July 1997, the petitioner had suffered at least two instances of torture by reason of his own political opinions. In this case the political opinions were those of the petitioner himself, and not opinions that should be imputed to him through his connection with any other person. On those two occasions the petitioner had suffered torture by government officials as a result of inquiries that he had carried out. Those inquiries could, and should, be interpreted as an expression of political opinion. In this connection counsel referred to Xi Lin Chen v Home Secretary, 2001 SLT 703, where it had been held that the expression "political opinion" should not be given a restricted interpretation. In particular, counsel submitted that, where an applicant for asylum had acted in defence of fundamental human rights, he should be regarded as acting in a political capacity. In the present case, it could be said that the petitioner had acted in a political capacity in five respects. First, he had sought to protect his father's right not to be arbitrarily detained. Secondly, he had sought to defend his father's right not to be tortured or subjected to cruel, instrument or degrading treatment. Thirdly, he had sought to protect his father's right to have access to a fair trial. Fourthly, he had sought to protect his father's right not to be arbitrarily deprived of his life. Fifthly, he had protected his own right and the rights of his father and his family not to have their private and family life interfered with, by separating his father from the remainder of the family and in not allowing the family to know the father's fate. On that basis, the petitioner's attempts to establish his father's whereabouts could be seen as politically motivated.

[16] In the present case, the adjudicator has found, at paragraph 27 of his determination, that any police interest in the petitioner is the result of the petitioner's attempts to find his father. In that paragraph the adjudicator expressly states that he did not consider that the police interest arose by reason of political opinion or imputed political opinion, and did not accept that any ill treatment of the petitioner would arise by reason of his political opinion or imputed political opinion. In my opinion there is adequate material in the adjudicator's findings in fact to support these conclusions. The findings in paragraph 18, in particular, indicate that the ill treatment that the petitioner had suffered resulted from his inquiries about his father. Those inquiries, however, seem clearly to have been motivated by the petitioner's self-interest and the interests of his family. No doubt the petitioner can be regarded as acting in defence of human rights, in the manner described in paragraph [14] above, but it was in my opinion clearly open to the adjudicator to find that the required political dimension was lacking from his acts. I consider that that is precisely what the adjudicator held at paragraph 27 of his determination. That involves an inference of fact, and a court considering an application for judicial review could only overturn the inference if it concluded that the adjudicator had acted in a way in which no reasonable adjudicator could act. In my view that test is not satisfied.

[17] Moreover, at paragraph 28 of his determination the adjudicator concludes that he was not satisfied that the petitioner would be reasonably likely to be of interest to the police or the authorities in Cameroon were he questioned on his return. That is supported by the adjudicator's findings in paragraphs 16-18 and 22 of his determination. In particular, at paragraph 18 the adjudicator states that between January and July 1997 the petitioner had had no problem with the Cameroon authorities and had instigated his subsequent detention through his inquiries about his father. Moreover, he had been released on bail in January 1997. In that paragraph the adjudicator concludes that the petitioner was not of any interest to the authorities and that they only took action against him when he approached them about his father. Once again, that is a conclusion of fact, and for a court to interfere with it it would be necessary that the adjudicator had acted in a way in which no reasonable adjudicator could act. In my opinion that test is plainly not satisfied. At paragraph 22 the adjudicator took account of the facts that in January 2001 the petitioner returned to Cameroon from South Africa, even though he knew that the political system had not improved, and that four days later he collected a visa application form from the British High Commission. In the same paragraph the adjudicator rejected the petitioner's explanation for his return. The fact that the petitioner returned to Cameroon in the knowledge that the system had not changed supports the conclusion that he was of no interest to the Cameroon authorities. Furthermore, in paragraph 27 it is recorded that the petitioner stated that he had decided to stop looking for his father. It follows that one of the reasons for the adjudicator's refusal of the petitioner's application was that the petitioner had no well-founded fear of persecution if he were to return to Cameroon. Thus, even if the petitioner's search for his father were regarded as a defence of human rights of a political nature, the adjudicator decided against him because such activities were not reasonably likely to lead to persecution in the event of his return to Cameroon. The result is that the first of the requirements discussed in paragraph [15] above is not satisfied.

3. Likelihood of persecution on account of petitioner's imputed political opinions
[18] Counsel for the petitioner's third argument was that, in the circumstances of the present case, the political opinions of the petitioner's father would be attributed by the Cameroon authorities to the petitioner himself. The petitioner's father had been a prominent activist in the SDF, and the petitioner had been a junior member of the party. Consequently, if the petitioner attempted to find his father on his return to Cameroon, it was likely that he would be subject to ill treatment, and that would amount to persecution on account of his political opinions.

[19] In my opinion this argument is not well founded, for two reasons. First, the reasoning in paragraph [17] above applies directly to the present argument; the adjudicator held, and was entitled to hold, that the petitioner did not face any reasonable likelihood of persecution if he returned to Cameroon, provided that he did not make inquiries about his father; at the same time, the adjudicator specifically found that the petitioner had decided not to make any further inquiries of that nature. Secondly, the adjudicator held, at paragraph 27 of his determination, that any police interest in the petitioner did not arise by reason of his actual or imputed political opinions. In my view that was fully justified by the findings in fact at paragraphs 16-19 and 22, which indicate that the only interest that the police had in the petitioner arose out of his attempts to find his father, and not out of his own political activities.

4. Article 3 of the European Convention on Human Rights
[20] Counsel's arguments were based primarily on the terms of the Geneva Convention. He also made reference, however, to article 3 of the European Convention on Human Rights. He submitted that if the petitioner returned to Cameroon and continued to make inquiries relating to his father, he was likely to be subjected to treatment contrary to article 3, which prohibits cruel, inhuman or degrading treatment. Such treatment had occurred on two occasions in January and July 1997.

[21] Article 3 was addressed by the adjudicator in paragraph 30 of his determination, where he held that the petitioner had not established substantial grounds for believing that there was a real risk of torture or inhuman or degrading treatment in the event that he returned to Cameroon. In view of the finding that any interest of the Cameroon authorities in the petitioner was related solely to his attempts to find his father, I am of opinion that the adjudicator was entitled to reach that conclusion. Provided that the petitioner makes no further attempts to find his father, the result of the adjudicator's findings in fact is that there is no significant likelihood of future ill treatment by the Cameroon authorities.

[22] For the foregoing reasons I am of opinion that the petitioner's challenge to the decision of the adjudicator does not succeed. Parties were agreed that the challenge to the decision of the Immigration Appeal Tribunal must stand or fall with the challenge to the adjudicator. I will accordingly repel the first and second pleas in law for the petitioner, sustain the pleas in law for the respondent and refuse the remedy of reduction sought by the petitioner.