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Cite as: [2021] ScotCS CSIH_15, [2021] CSIH 15, 2021 GWD 10-135

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EXTRA DIVISION, INNER HOUSE, COURT OF SESSION

2021 CSIH 15

P623/19

Lord Malcolm

Lord Woolman

Lord Doherty

OPINION OF THE COURT

delivered by LORD WOOLMAN

in the Appeal

Petitioner and Reclaimer

for

Judicial Review of a decision of the Secretary of State for the Home Department

Petitioner and Appellant: Bovey QC and Caskie; MBS Solicitors

Respondent: McKinlay; Office of the Advocate General

24 February 2021

Introduction

[1]

The petitioner arrived in the United Kingdom with his wife and young son in June

2017. He claimed asylum, telling immigration officials that he faced persecution if he

returned home to Venezuela. The risk arose, he said, because of an incident that had

occurred two months earlier. Members of the Bolivarian National Guard of Venezuela ("the

GNB") had shot and killed one of his friends. He had been present when this event took

place.

[2]

The Home Office declined to grant asylum and the First-tier Tribunal subsequently

refused the appeal. It concluded that the petitioner would not report the matter to the

authorities in order to protect the safety of himself and his family. Further he could not

identify the perpetrators. Accordingly, he was not at risk of persecution

[3]

Subsequently both the F-tT and the Upper Tribunal ("the UT") refused to grant

permission to appeal. They held that there had been no arguable error of law. In these

proceedings for judicial review the petitioner seeks to reduce the UT decision. The

Lord Ordinary refused the petition. The petitioner submits that in doing so, he erred in law.

[4]

As the case has progressed, it has altered in two material respects. One relates to the

law. The other relates to the facts. We shall say more about both matters below.

Background

[5]

The petitioner was born and grew up in Venezuela, where his family and in-laws

continue to reside. Latterly he owned an IT business. In recent times the country has

experienced periods of civil unrest. The petitioner and his wife took part in peaceful

protests against the Venezuelan government.

[6]

The petitioner arranged to meet his friend T at one such demonstration which took

place on 11 April 2017. Officers of the GNB were present. They fired tear gas and charged

into the crowd of protestors. In the ensuing minutes, the petitioner and T ran for safety. A

GNB officer grabbed T and shot him in the face at point blank range. Despite being taken to

hospital and undergoing surgery, T died two days later.

[7]

On the night of the shooting the petitioner visited T. Afterwards two GNB officers

accosted him in the hospital car park. They pinned him against a car and took his mobile

phone and watch. They told him that they knew he had witnessed them shoot T and that he

should not open his mouth about it. He would have serious problems with them and the

national police if he did he and his family would be killed.

[8]

About a fortnight later, the petitioner's wife received a series of unsettling telephone

calls. They came from unknown numbers. Some were silent. Others were not. During one

call, a child could be heard crying and screaming in the background. A woman said that the

petitioner should keep his mouth shut and that their son had been kidnapped. In fact he

was safe at nursery. The calls took place over a three day period.

[9]

The petitioner's wife contacted an individual in the national security service. He

linked one of the telephone numbers to the government. His advice was that the petitioner

should forget about the incident and stay away from protests, otherwise his life would be in

danger.

[10]

Understandably, the petitioner and his wife were alarmed. They decided to flee to

the United Kingdom with their son. On their arrival in Edinburgh the petitioner sought

protection, either as a refugee or on the basis of humanitarian protection. Success on either

branch of the application would also entitle his wife and son to remain here.

M's application

(1) Refugee Status

[11]

The petitioner brought the first branch of his application under the Refugee or

Person in Need of International Protection (Qualification) Regulations 2006 SI 2006/2525

(`the 2006 Regulations'). Regulation 6 governs two key questions:

Who is entitled to refugee status? Individuals who have a well-founded fear of being

persecuted by reason of their race, religion, nationality or membership of a particular

social group. These are sometimes referred to as `the Convention reasons'.

What constitutes a particular social group? The answer is where:

(i) members of that group share an innate characteristic, or a common

background that cannot be changed, or share a characteristic or belief that

is so fundamental to identity or conscience that a person should not be

forced to renounce it, and

(ii) that group has a distinct identity in the relevant country, because it is

perceived as being different by the surrounding society (such as a group

based on a common characteristic of sexual orientation).

[12]

There are two additional points. (I) Holding an opinion, thought or belief on a

matter related to the potential actors of persecution and to their policies or methods is

enough. It does not require such an opinion, thought or belief to have been acted upon.

(II) In deciding whether a person has a well-founded fear of being persecuted, it is

immaterial whether he actually possesses the characteristic in question, provided the

persecutor attributes it to him.

(2) Humanitarian protection

[13]

The petitioner also founded on paragraph 339C of the Immigration Rules. It states

that the Home Office will grant a person humanitarian protection if it is satisfied that they

do not qualify as a refugee and substantial grounds have been shown for believing that the

person concerned, if returned to the country of return, would face a real risk of suffering

serious harm and is unable, or, owing to such risk, unwilling to avail themselves of the

protection of that country.

F-tT decision

[14]

Following a two day hearing the F-tT judge found both the petitioner and his wife to

be credible and reliable witnesses. She concluded, however, that there was no reasonable

likelihood of him being persecuted on return to Venezuela. He had failed to discharge the

onus of establishing his case, even at the lower standard of proof that applied.

[15]

Two findings were crucial to the F-tT judge's decision. The first was that if the

petitioner made no complaint he would be in no danger. The second concerned the

petitioner's recollection of the killers.

[16]

At paragraph 23 (a) of her decision the F-tT judge reasoned:

"...[I]n my view as the Appellant has not made a complaint then he is in no danger

from the GNB officers who were responsible for shooting T at close range..."

[17]

Later in paragraph 23 (a) she observed:

"... In oral evidence I asked the Appellant if such a long period of time has passed

since the incident he would be able to recognise these GNB officers and he said that

he had their faces in his head. I then asked if he had any way of being able to identify

them and he said `no'."

As will become apparent, we consider that this exchange has caused a confusion which has

permeated the judgments of the F-tT, the UT, and the Lord Ordinary.

[18]

We summarise the other findings of the F-tT judge as follows: (a) although the

nuisance calls had caused great anxiety, they had served their deterrent purpose; (b) the

GNB had allowed the petitioner to remain free and had not, for example, detained him or

charged him with a groundless crime; (c) he and his family were able to leave the country

using their own passports; (d) the GNB had not contacted members of his or his wife's

family; (e) the petitioner and his wife had not taken part in any political activities in the UK

which could bring them to the attention of the Venezuelan authorities; (f) the petitioner

would continue to protest if he returns to Venezuela; and (g) the petitioner would not

report what he had seen out of safety concerns for himself and his family he had been

consistent in his position since his asylum interview on 15 August 2017.

UT decision

[19]

The proposed grounds of appeal to the UT raised several matters, but it is only

necessary to mention two of them. First, the F-tT had failed accurately to assess the danger

to the petitioner were he to be returned. The perception of the killers was that the petitioner

could speak to the commission of the crime and could identify them as the perpetrators.

That placed him in danger whether or not he complained to the authorities. Second, ("the

HJ (Iran) ground") was a new argument. The F-tT ought to have held that a requirement for

the petitioner to `keep quiet' about the murder infringed his human rights. The petitioner's

position was analogous to that of the applicants in HJ (Iran) and HT (Cameroon) v Secretary of

State for the Home Department [2011] 1 AC 596. He could only avoid persecution in his home

country if he `lived a lie' by not reporting the matter to the Venezuelan authorities.

[20]

The UT rejected both arguments. In relation to the first, it reasoned:

"The Judge gave detailed reasons for her finding that the GNB would have no

interest in the Appellant and for her finding that there was nothing to identify them

on return."

In relation to the HJ (Iran) ground, it held that that case did not apply to the petitioner's

circumstances, and that "[i]n any event the Appellant has not expressed any wish to pursue

a complaint".

Lord Ordinary's decision

[21]

The Lord Ordinary refused the petition for essentially similar reasons. First, the

factual findings could not be revisited as they were based on a meticulous analysis of the

evidence. Second, HJ (Iran) did not apply as the petitioner was not a member of a protected

social group. Third, his decision not to make any complaint was based on pragmatic

considerations, and had been a choice which had been "freely made": Opinion,

paragraph [28]. In particular, he had not been forced or induced to modify his behaviour

because of a well-founded fear of persecution for a Convention reason. Fourth, if he

returned to Venezuela he would not be required to suppress a core aspect of his personality.

He could live his life openly and continue to protest against the government if he wished to

do so. Fifth, it was artificial and contrived to characterise the decision not to report the

murder as being related to a political opinion held by him.

[22]

But it is important to note that the Lord Ordinary also regarded it as "critical" that

the F-tT found as a fact that the petitioner was not able to identify the perpetrators of T's

murder: Opinion, paragraph [31]. In consequence of this the view was taken that he would

not be of any interest to them were he to be returned to Venezuela.

Decision

[23]

We shall not rehearse the submissions of counsel in any detail. They essentially

followed the contours of what had been said at the hearing before the Lord Ordinary. We

remind ourselves that at this stage we are not concerned with the merits of the appeal, but

with whether the UT erred in law in refusing to grant permission to appeal.

[24]

Mr Bovey QC invited us to conclude that it was arguable that the FtT had erred in

law in relation to the first ground, and that the UT had erred in law in not recognising that;

and that it was also arguable that the UT had erred in law in relation to the HJ (Iran) ground.

[25]

Mr McKinlay submitted that the Lord Ordinary's analysis was correct. The

petitioner did not have a well-founded fear of persecution on Convention grounds - the

contrary view was not arguable. Any modification of his behaviour on being returned to

Venezuela would stem from the petitioner's interest in personal safety, not on his political

opinion. It was not arguable that HJ (Iran) applied. In the course of his clear and well-

presented submissions, however, Mr McKinlay accepted two points. In our view, the

concessions were rightly and properly made.

[26]

First, if it is arguable that the principle in HJ (Iran) applies, then this court should

allow the appeal and remit to the UT. Second, Mr McKinlay recognised that the F-tT, the UT

and the Lord Ordinary all proceeded on the basis that the petitioner could not identify the

individuals who shot T. If on a proper analysis of the facts that was not correct, their

reasoning would be undermined. Mr McKinlay also acknowledged that even if the

petitioner was unable to identify the perpetrators, he might nevertheless have important

information to impart to the authorities, viz -when, how and by whom (ie GNB officers) T

was shot. Matters may go further in any investigation. Witnesses are typically asked to view

photographs, to create photo-fit images or drawings, and to attend identification parades.

Sometimes this can jog an individual's memory. We are satisfied that the first ground does

disclose an arguable error of law on the part of the F-tT, and that the UT and the Lord

Ordinary erred in law in not recognising that. It is arguable that it was unreasonable in the

circumstances for the F-tT to conclude that the petitioner is in no danger because he has not

made a complaint. He is a witness to a murder by state actors. The murderers know that he

witnessed the commission of the crime and they believe that he can identify them as the

perpetrators. It may reasonably be inferred from the circumstance of the murder and from

their subsequent threats to the petitioner that the perpetrators are ruthless men with scant

regard for human life. They run the risk that at some point the petitioner might speak up,

with potentially grave consequences for them. In those circumstance it may be reasonable to

conclude that they represent a danger to the petitioner. Since it is the killers' perception of

the evidence which the petitioner may be able to give which is critical to his safety, whether

that perception is accurate, appears to us to be of secondary importance. However, in our

opinion it is arguable that the F-tT (and in their turn the UT and the Lord Ordinary)

misunderstood the petitioner's evidence. He stated that he might well be able to recognise

the perpetrators - he recollected their faces. We think that there is, at the very least, a

substantial argument that it may reasonably be inferred that the petitioner understood the

judge's follow-up question to be asking something different, viz. apart from recollecting

what they looked like, had he any other way of being able to establish who they were? We

think it arguable that, on a reasonable reading of the entirety of the relevant passage, the

petitioner indicated that he thought he would be able to recognise the killers.

[27]

We would add that in the circumstances summarised at paragraphs 5-10 above, it is

unclear, at least to this court, how and why the petitioner's reluctance to make a report

should have the significance attached to it by the F-tT.

[28]

Since we are satisfied that the UT erred in law in failing to recognise that the first

ground was arguably a material error of law on the part of the F-tT, it follows that the UT's

decision cannot stand.

[29]

It is not necessary for present purposes to decide whether the UT erred in law in

relation to the HJ (Iran) ground. Since that ground raises a somewhat novel point, and there

is going to have to be an appeal to the UT in any case, there may be advantages in the HJ

(Iran) ground being fully canvassed before the UT during the course of that appeal (if, on

advice, the petitioner wishes to pursue it).

[30]

We conclude that the proper course is to allow the reclaiming motion; recall the

Lord Ordinary's interlocutor; sustain the petitioner's first plea-in-law, repel the respondent's

fifth and sixth pleas-in-law, and reduce the decision of the UT; and remit to the UT to

proceed as accords in the light of this court's findings. We anticipate that the UT will grant

permission to appeal, and will then hear the substantive appeal.