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You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Zubrytska, Re Application for Judicial Review [2005] ScotCS CSOH_141 (02 November 2005)
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Cite as: [2005] ScotCS CSOH_141, [2005] CSOH 141
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Zubrytska, Re Application for Judicial Review [2005] ScotCS CSOH_141 (02 November 2005)
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OUTER HOUSE, COURT OF SESSION [2005] CSOH 141 |
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P33/05
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OPINION OF LORD WHEATLEY in the Petition of MRS ALLA ZUBRYTSKA Petitioner; for Judicial Review of (i) a determination of an Adjudicator; and, (ii) a determination of the Immigration Appeal Tribunal
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Petitioner: Frain-Bell; Wilson Terris & Co, S.S.C.
Respondent: Stewart; Secretary of State for the Home Department
2 November 2005
[1] The petitioner was born on 19 June 1947 and is a national of the Ukraine. She and her family left the Ukraine on 1 October 2001 and travelled to Poland by car. On the same day, she flew from Warsaw and arrived in the United Kingdom. She has been here since. She applied for asylum but this was rejected by the Secretary of State by letter dated 17 June 2002. The petitioner appealed against that decision but on 12 February 2003 her appeal was rejected by the adjudicator. The petitioner than applied for leave to appeal against the determination of the adjudicator but the Immigration Appeal Tribunal intimated refusal of that application on 15 April 2003. The petitioner currently seeks a declarator that the determination of the Immigration Appeal Tribunal of 15 April 2003 to refuse leave to appeal was unreasonable and unlawful. [2] The basis of the petitioner's claim for asylum is that she had suffered persecution by reason of her imputed political opinions. In the course of 1996, she began to work as a chief accountant of a magazine called Phoenix in Lvov, a city in the west of the Ukraine. The aim of the magazine was to expose government corruption and the ill-treatment received by various minority groups in the Ukraine. In her application, the petitioner has narrated a series of incidents which were evidence of that persecution, possibly by vigilante groups, and it suffices to say for present purposes that, in principle, the adjudicator accepted that such incidents and such persecution took place. The adjudicator also found that although the petitioner's principal employment was that of chief accountant to the magazine, she was also in a position from time to time to contribute material which was published in the magazine. [3] The first complaint made by counsel for the petitioner was that the adjudicator's findings did not sufficiently reflect the journalistic involvement of the petitioner in the publication of the magazine, which had attracted the attention of vigilante groups. The adjudicator appeared to have come to the conclusion that because the petitioner was merely an accountant, she was not so closely involved with the publication of the material which caused her subsequent difficulties to justify the view that it was her journalistic activities which had attracted reprisals. While it is not difficult to see why this submission was made, I think it is completely unfounded. The adjudicator appears to have accepted fully what the petitioner maintained in this respect, and in particular made it clear in his findings (at para. K13.3) that he had been satisfied that the petitioner had been attacked because of her association with the magazine. While he did point out that the petitioner was not a journalist, that finding was significant not because of what had happened to her in the past, but had more relevance to what might happen to her in the future. In all the circumstances, I propose to set these submissions to one side. [4] The petitioner's second submission contained the gravamen of her appeal. This was concerned with the adjudicator's finding that the petitioner would not be at risk of further persecution should she return to the Ukraine. The first question that had to be considered was whether or not the petitioner should be allowed to put forward this argument. It was accepted that the original grounds of appeal in this case did not reflect the submissions which the petitioner's counsel wished to make at the judicial review hearing. It is clear that in such circumstances the appellate authorities should consider such original grounds of appeal exclusively, unless there is another point which is both obvious and has a strong prospect of success. I refer to the opinion of Lord Reed in the petition of Mutas Elabas (unreported), 2 July 2004, para. [21], citing the opinion of Lord Woolf (MR) (as he then was). In the present case, I think it is difficult to say that that test has been met, but I propose to deal with the merits of the case on future risk, as that formed the major part of the submissions by both parties. [5] I accept Mr Frain-Bell's submission, (which was accepted by the respondent's counsel), that the simple expression of the proper test in this case was as framed by Simon Brown, LJ (as he then was) in Iftikhar Ahmed v Secretary of State for the Home Department [2000] INLR 1 in the following terms: "Is there a serious risk that on return the applicant would be persecuted for a Convention reason?" The petitioner submitted that she would suffer such persecution on her return to the Ukraine. It was artificial, she maintained, to distinguish between her activities as an accountant who also occasionally contributed material to the magazine she worked for, on the one hand, and journalists who routinely published such material on the other. She had suffered persecution because of her association with the magazine and because of the political opinion which that magazine represented. Should she return to the Ukraine, she would continue to express her opinions, and in those circumstances she claimed that she would be persecuted. It is on this basis that she now claims asylum. [6] In response, Mr Stewart for the respondent submitted that it was still for the petitioner to satisfy the court on the evidence that she had a proper claim for asylum. The standard of proof was lower than on the balance of probabilities, but the responsibility still lay with the petitioner to make her case. In the present case, she simply had not done so. Counsel submitted that the adjudicator had approached this topic correctly, and had reached an unchallengeable conclusion. In his adjudication at page 19, para. K13.1, he had postulated the appropriate test, namely that the petitioner required to demonstrate that she had a well-founded fear that such persecution as she had suffered in the past would continue if she returned to the Ukraine. But the grounds on which the adjudicator rejected the petitioner's claim for asylum are also clearly laid out. At page 20, para. K20.5, the adjudicator points out that the finding that the petitioner had suffered persecution in the past was not by itself sufficient for him to uphold the appeal. For the appeal to be successful, the petitioner had to demonstrate that she had a well-founded fear that she will continue to be persecuted for her political opinions if she went back to the Ukraine. The evidence which the adjudicator found to be acceptable demonstrated that those responsible for such persecution do not normally harass everyone who expresses political opinions different to their own. The sole target of such activists were journalists and others who published the opinions which they did not like. In the present case, the petitioner had not taken the opportunity of indicating that she would continue publication of her views in a way she did formerly should she return to the Ukraine. In these circumstances, the adjudicator concluded that the petitioner had not demonstrated that her circumstances on returning to the Ukraine would lead to any persecution at all. [7] In particular, noting that the magazine had closed down in 2001 and had not resumed publication, the adjudicator found that there was no current available sources of intimidation or persecution which would be directed at the petitioner should she return home. The only expressions of her opinions would be voiced in her private capacity. Accordingly, the adjudicator concluded that the petitioner had not shown that there was any such risk of future persecution and rejected the petitioner's application. [8] Despite Mr Frain-Bell's persuasive and succinct submissions, it can only be said that the adjudicator's conclusions on the basis of the evidence before him, and his reasoning in reaching those conclusions, appear to me to be completely unassailable. There was no evidence before him, as Mr Stewart pointed out, which would justify in any way the conclusion that there was a risk of further harassment of the kind previously experienced by the petitioner should she return to her homeland. In these circumstances, regrettably, there are no grounds for granting the prayer of this petition, which accordingly falls to be refused.