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Cite as: [2002] UKIAT 5822, [2002] UKIAT 05822

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AK (Democratic Party) Albania [2002] UKIAT 05822

CC33708-2001

IMMIGRATION APPEAL TRIBUNAL

Date of hearing: 14 October 2002

Date Determination notified: 20 December 2002

Before

J A O'Brien Quinn QC (Chairman)

Mrs E Morton

Between

AK	APPELLANT
and
Secretary of State for the Home Department	RESPONDENT

DETERMINATION AND REASONS

The first Appellant, a citizen of Albania, appeals against the determination of an Adjudicator (Mr I J French) dismissing her appeal against the refusal of the Secretary of State to grant her asylum and to grant her claim under the Human Rights Act, on behalf of herself, her husband and her two children.

The appellant was represented by Miss E Norman, of Counsel, instructed by Tyndallwoods, Solicitors, while Mr S Ouseley, Home Office Presenting Officer, represented the Secretary of State.

The grounds of appeal, in the main, attack the Adjudicator's finding on credibility, in view of the fact that although he had accepted most of the evidence of the Appellant, the Adjudicator clearly had "reservations" regarding the allegation of ill-treatment of the first Appellant's husband and found his evidence to be considerably exaggerated and not to amount to persecution or ill-treatment contrary to Article 3, that the Adjudicator had given no weight to the newspaper report mentioned because the Home Office had not been given the opportunity to check whether or not it was genuine, that the Adjudicator had erred in saying that he had seen no documentary evidence of the reasons for the dismissal of the appellant and her husband from their posts, in spite of there being a certificate from a former colleague of the Appellant's husband on the matter, despite positive credibility findings, in respect to the first Appellant, that the Adjudicator made no finding whatever on the existence of a subjective fear of persecution on her part and found that by his treatment of the letter from the Refugee Council, as having no medical weight, the Adjudicator had erred on the question of sufficiency of protection and had erred in concluding that the first Appellant and her husband had sought to embellish and exaggerate the treatment of which they complained.

Leave to appeal to the Tribunal was granted by the Tribunal (Mr J R A Fox, Vice President). In granting leave to appeal, the Tribunal states as follows:-

"The Tribunal has reviewed the grounds of appeal and the determination and is of the view that the grounds are arguable particularly in the light of the Adjudicator's treatment of the report from the Midland Refugee Council and the qualifications of the person making that report."

When the appeal opened before the Tribunal on 14 October 2001, there was, before the Tribunal, a bundle of documents submitted on the Appellant's behalf, one of which was a letter from the Midland Refugee Council, signed by Miss Tricia Yarwood, undated, but which gave the medical and psychological training which had been received by Miss Tricia Yarwood.

We were then addressed by Miss Norman on the grounds of appeal and, in particular with regard to the letter from the Midland Refugee Council, of 3 January 2002, and the recent letter, from the same Midland Refugee Council, at page 57 of the Appellant's bundle.

Miss Norman argued that the Adjudicator had erred in finding, in paragraph 26 of his determination, that the Midland Refugee Council's letter of 3 January 2002 did not carry any medical weight, and drew our attention to the publications of Miss Tricia Yarwood.

Miss Norman submitted that the Adjudicator had not fully appreciated the evidence before him and drew the wrong inference from the omission of reference to the incident involving the ramming of the Appellant's car in the mistaken belief that the driver was her husband, in making a finding that the Appellant and her husband had sought to embellish and exaggerate treatment of which they complained.

Miss Norman submitted that the Adjudicator had not fully appreciated that there was a pattern of persecution against the Appellant, her husband and her son who had only just escaped from the clutches of an abductor, all of which actions were aimed against the first Appellant and her husband on account of their support of the Democratic Party.

She drew attention to what was stated in the Midland Refugee Council letter, of 3 January 2002, namely that when the first Appellant was asked to discuss the probable consequences of her and her family's return to Albania, she became completely overwhelmed and unable to speak, and that her remaining family members in Albania were also under threat.

She submitted that Miss Tricia Yarwood had stated that the first Appellant described the notion of return to Albania in terms of catastrophe and that the effect, which her and her family's return to Albania would have, would bring her within both Conventions. She submitted that the Adjudicator had to be satisfied, on the overall evidence and that that was what he had failed to do.

In the aspect of the MRC letter, Mr Ouseley submitted that the Adjudicator was right in attaching no medical weight to the letter, as even despite the more recent letter, no actual qualifications were given. He submitted that even considering the facts on which the first and second Appellant relied, they did not go in any way towards explaining the current situation in Albania, that the Adjudicator was correct in his understanding that there was no medical weight to be attached to the letter of the MRC.

We then heard Miss Norman, on the situation generally, and the evidence of the Appellant and her husband.

She stressed, in particular, the fact that both the first Appellant and her husband were supporters of the Democratic Party, since its inception, and that both she and her husband had been dismissed from their posts on that account. She submitted that her husband had been threatened on several occasions, culminating in his abduction for 24 hours in February 2001, during which time he was beaten and insulted, and was released upon receipt of a ransom with further money being demanded. She stressed that whenever the family complained to the police or the authorities, no action was taken and their complaints were ignored, while other crimes reported by party supporters were dealt with promptly, which made the first Appellant realise the problems they were having were part of a sustained campaign of intimidation by the Socialist Party.

She stressed that the authorities were unable to offer the Appellants protection and given the current unstable situation and the inability of the Albanian authorities to uphold the law, there was nothing to suggest that the Authorities would be able to protect her in another part of the country as she would be targeted by the Socialist Party anywhere in Albania.

She submitted that Articles 10 and 11 of the ECHR Protecting the Rights to Freedom of Expression, Freedom of Assembly and Association, would be breached because of the oppressive nature of the Socialist Party regime if she were returned to Albania.

She drew attention to the Human Rights Watch Report 2001, which dealt with the political rivalry between the Democratic Party and the Socialist Party, and which culminated in violent incidents prior to the electoral campaign in October.

The Tribunal drew her attention to what was stated at paragraph 5.27 of the CIPU Report for April 2002, which stated that there were no reports that permits to hold meetings were withheld, arbitrarily but Miss Norman submitted that the US State Department Report, at page 50 of her bundle, had stated that, during Democratic Party demonstrations before the October elections, the police beat and mistreated some Democratic Party supporters and killed a demonstrator in November when a group of Democratic Party members attacked the police station, Court house, and other public buildings in Tropoja.

She drew attention to the RLC letter at page 18 of her bundle, at B5, and argued that relocation could be difficult in Albania because of the small size of the country, and the closely knit nature of the communities and that that had not been taken into account by the Adjudicator.

She submitted that, on the whole, the Adjudicator had not properly assessed the evidence before him and had not come to the correct conclusion in deciding the appeal should be allowed.

We then heard Mr Ouseley, in reply, and he submitted that the Adjudicator properly assessed all the evidence before him, and had come to the proper conclusion on the question of the exaggeration of the Appellant's evidence.

He submitted that, taking account of the objective evidence, the Democratic Party had been beaten in the, generally, fair elections in Albania by the Socialist Party, and that, since then, the Democratic Party had actually boycotted the elections. He submitted that that was stated at paragraph 3.35 of the CIPU Report for April 2002, which set out the actions taken by the government in investigating the murder of a Democratic Party legislator, in 1998, under the, generally, fair handed approach by the Socialist Government in Albania.

Mr Ouseley made general reference to the objective evidence, and drew our attention to paragraphs 3.52, 3.54 and 3.56 of the CIPU Report, which set out the situation regarding a split in the Socialist Party arising from the fact that a faction of the ruling Socialist Party voted with the opposition Democratic Party, ignoring a warning that a widening party feud might trigger early elections.

He submitted that, on the whole of the evidence, both subjective and objective, the Adjudicator had come to the correct conclusion, and that the Appellants had not established a well-founded fear of persecution under the Convention, if they were to return to Albania. We then heard Miss Norman, briefly, in reply, and she drew our attention to the Amnesty International Report for 2001, on Albania, and stated that 1000 opposition supporters had been arrested and political tensions increased and that at the end of November, a Democratic Party demonstration in the northern town of Bajoamcurui, ended in clashes between the police and armed men, in which one man died and others were wounded. She also drew attention to page 43 of her bundle, which dealt with the ill-treatment of demonstrators, and the ill-treatment of journalists and when it was stated that police officers were very rarely brought to justice for torture or ill-treatment. She also drew attention to the fact that political opponents had been detained by the police during demonstrations led by the Democratic Party which claimed that the October municipal elections had been rigged.

She also drew attention to the USSD report at page 46 of her bundle, where it stated that there were a number of reports of police violence and that four DP activists from the Leahu region had been pulled over and beaten by a masked special police force and that there were cases of reported police abuse where more than 20 persons had been taken into custody and subjected to beatings and maltreatment.

She submitted that the Adjudicator had not properly considered the A.1 and USSD Reports, and that in all the circumstances, he had not fully appreciated the background evidence, particularly as it affected the first Appellant's husband.

She submitted that the Adjudicator had not properly considered all the evidence both subjective and objective, and that the appeal should be allowed.

We then reserved our determination, carefully considered all the evidence and the submissions made to us, together with all the documentary evidence placed before us, and directed ourselves that the burden of proof lay upon the Appellants and that the standard of proof is that laid down by the House of Lords in Sivakumaran and other more recent determinations of the Tribunal and the Courts, most notably Karanakaran.

The evidence in the first Appellant's case, before the Adjudicator, as summarised in the determination, is as follows:-

"The Appellant comes from a family with a political background. Both of her parents died whilst interned for opposition to the former Communist regime. Her brother also died in prison as a political prisoner under the Communists. With the introduction of the Multi-Party system in 1990 the Appellant became an active member of the Democratic Party, regularly attending meetings and also demonstrations. She was appointed the Chairman of the Youth Forum for the Former Persecuted Persons which was a salaried government post. Her function was to educate young people about democracy.

The Appellant and her husband had married in 1993 and lived in Durres in the West of Albania. Her husband was employed as a police officer. Following the success of the Socialist Party in the July 1997 general election, in December of that year the Appellant's husband lost his position as a police officer because he was perceived to have conservative views, although he had not been active in the Democratic Party whilst he was serving in the police.

The Appellant was employed by local rather than national government and in Durres, the Democratic Party continued to control the local authority until the election in October 2000 when they lost power, following which the Appellant was herself dismissed although for a period she continued to work without pay. From 1997 the couple received numerous threatening telephone calls stating that they should stop supporting the Democratic Party or leave Albania. The Appellant also received numerous anonymous threatening letters to the same effect. Their home was broken into and ransacked and a large amount of money taken. The incident was reported to the police but without result. The Appellant's husband said that he received a telephone call after the burglary which made it clear that supporters of the Socialist Party had been responsible. In February 2000 the Appellant's husband was kidnapped by Socialist Party members. He was taken to an unknown destination and beaten and kicked. His abductors demanded a ransom and also that the Appellant should given up her job. They said that if the money was not paid he would be murdered and the Appellant arranged to make the payment at a café which was used by members of the Socialist Party. He stated that he reported the incident to the police but they did nothing to help. According to his statement the Appellant's husband was abducted and beaten again by members of the Socialist Party in February 2001 and was detained for 24 hours. On another occasion he stated that he was threatened that his children would be kidnapped if he did not give up supporting the Democratic Party.

In June 2001 the Appellant's husband was involved in supervising the elections for the Democratic Party, in an attempt to stop the Socialist Party fabricating the results. He was beaten by members of the Socialist Party and also ill-treated by the police. The Appellant was not on the voting register and was not allowed to vote. The Appellant and her husband thought that an attempt was made to abduct their son when a man with a car gave him money to buy cigarettes. Fortunately a workman close by told the boy not to get involved.

After the incident in June 2001 at the elections the Appellant and children went into hiding also her husband arranged their departure from Albania for which they paid 10,000 Dollars.

They left Albania by lorry on the 16^th July 2001 and arrived in the United Kingdom on the 19^th July, when they claimed asylum."

The basis of the first Appellant's claim was that she has suffered persecution in the past which was an indication of future persecution. She claimed that the police and the judiciary were corrupt and that protection would not be available to her or her husband as the persecutors were, effectively, the State. She also claimed that there was nothing to indicate that she and her husband could be protected in any other part of Albania and that it would be unreasonable to expect them to go there. It was further claimed that they would be likely to be ill-treated contrary to Articles 3, 10 and 11 of the ECHR.

It was submitted that the first Appellant had been a member of the Democratic Party since it had been registered in about 1990, and that in 1998 she had received threats by telephone and letter to leave the Democratic Party; that she had lost her job because of her political activities and that her husband had been beaten and hospitalised by members of the Socialist Party; that he had been kidnapped and tortured to the point of unconsciousness; that there had been threats to kidnap her children; that her husband had been involved with the organisation of the election but that she had not been allowed to vote; and that as a result of all these matters, and relying on paragraphs of the UNHCR Handbook, there was a reasonable degree of likelihood that she and her husband would face persecution on account of their political opinion.

The Adjudicator, having heard and considered all the evidence before him and the submissions made, found that there were discrepancies between the accounts given by the first Appellant and her husband; but, in particular, found it significant that, at her initial interview, she had not mentioned the treatment her husband had claimed to have received at the electoral polling station in June 2001, and noted also that the incident had not been mentioned in the RLC letter, setting out the basis of the Appellant's claim for asylum. All of those matters caused the Adjudicator to have serious doubts as to whether it had occurred at all.

With regard to the report in the Democratic Party newspaper; "Democratic Renaissance", no opportunity had been given to the Home Office to check whether or not that report was genuine, as the Adjudicator noted that the US State Department Report had remarked that party newspapers frequently reported gossip or fictitious events. The Adjudicator noted that, while the first Appellant gave evidence regarding her husband's abduction and his payment of money following that abduction, he referred to only one event at that time and also said that the matter had not been reported to the police, but her husband referred to two abductions having taken place, one in February 2000 and one in February 2001, and that, on the occasion of the first abduction, money had been paid over and the matter had been reported to the police.

Further, the letter from the Midland Refugee Council, dated 3 January 2002, referred to another alleged incident, altogether, involving the ramming of the first Appellant's car in the mistaken belief that the driver was her husband, which incident had never been reported in any of the accounts which were heard before the Adjudicator, which led the Adjudicator to the conclusion that the first Appellant and her husband sought to embellish and exaggerate the treatment of which they complained.

In addition, the Adjudicator found that the Midland Refugee Council letter, of 3 January 2002, did not carry any medical weight.

When the Adjudicator set out clearly in paragraph 27 what parts of the evidence he accepted, with regard to the claims made by the first Appellant arising from those matters, the Adjudicator found that the only evidence to support the Appellant's claim, that she and her husband had been persecuted by the Socialist Party was her claim that there had been the threats by letter and telephone, to which she had referred, that, following the burglary of their home, her husband had been told on the telephone that the Socialist Party was responsible, and the first Appellant's claim that an approach had been made to her son by a man who had offered him money for cigarettes. The Adjudicator found that, while the burglary and the approach to their son may well have occurred, they were criminal acts or attempted criminal acts, but that there was nothing to link them with the Socialist Party.

The Adjudicator, then, went on, in paragraphs 28 and 29 of his determination, to find as follows:-

"The loss of employment for the Appellant and her husband (which she attributes to political reasons but in respect of which I have seen no documentary evidence of reasons for dismissal) and the letters and telephone threats would not in my judgment amount on their own to persecution or treatment contrary to Article 3. I do have serious reservations about the allegation of vicarious persecution in the form of ill-treatment of the Appellant's husband. If those events occurred at all I find them to be considerably exaggerated and again not to amount to persecution or treatment contrary to Article 3. Furthermore it would appear that only some incidents were reported to the police (although there are contradictions between the evidence of the Appellant and her husband in this respect). There is also in place an Ombudsman scheme by which the Appellant could have complained about alleged human rights abuses, including abuses by the police. She could also have raised her complaints at a political level. It is an important principle of the Conventions that the surrogate protection of the receiving state will only be engaged where there is no sufficiency of protection in the home state. On the evidence before me the Appellant and her husband have only to a limited extent sought to invoke the protection of the Albanian authorities. There are various levels of protection which they have not explained and in those circumstances they are not entitled to international protection.

For the avoidance of doubt I make it clear that I have not found that the failure of the Appellants to claim asylum en route to the United Kingdom has invalidated their claim. With regard to the alleged breaches of Articles 10 and 11 of the Human Rights Convention (Freedom of Expression and Freedom of Assembly and Association) I find having regard to the objective evidence that those rights are not substantially breached. The Democratic Party remains a legally registered party in Albania free to campaign and rallies and demonstrations in its support regularly take place throughout the country."

We have given full consideration to the findings of the Adjudicator and have taken careful note of his reasoning in coming to the conclusions which he did, and, in so doing, have taken full account of the documentary evidence put in before us at the hearing, with reservations as to the newspaper article in respect of which the Home Office had not been given the opportunity of checking its provenance and the credibility of its contents which, taking account of Tanveer Ahmed, we reject.

With regard to the letter from the Midland Refugee Council, dated 3 January 2002, which the Adjudicator found not to carry any medical weight, we have taken note of its contents and have taken note of the recently produced letter from Miss Tricia Yarwood. As we see these letters, while we appreciate Miss Yarwood's views, her qualifications and her experience, we are not satisfied that she is a properly qualified psychiatrist or that her opinion as to the mental state of the first Appellant is one to which the same weight should be attached as would be attached to the detailed report of a fully qualified and experienced psychiatrists, particularly one with experience of refugees and their mental conditions. In the letter of 3 January 2002, all that Miss Yarwood could say was that she found the first Appellant "to be profoundly afraid", that 'she is full of guilt' and that, in her estimation "the family are urgently in need of a safe haven which their humanitarian activities in Albania have denied them in their own country."

The first two findings, while they are understandable, do not assist in establishing a well-founded fear of persecution for a Convention reason, as they are too vague, but the last of these findings would appear to be based on evidence which was never before the Secretary of State, the Adjudicator or the Tribunal, namely, that the Appellants were involved in "humanitarian activities", as the only activities which they have claimed are political activities on behalf of the Democratic Party, not "humanitarian activities".

Further, the letter refers to an incident involving the ramming of the Appellant's car, but neither the first Appellant nor her husband made any reference whatever to that incident in their evidence.

We have looked at the more recent letter of Miss Yarwood and, while we appreciate her qualifications as a biochemist who had been interested in the biochemistry of mental disorder, and the fact that she had trained as a psychiatric social worker, and had been invited by the institute of psychiatry at Maudsley Hospital to join a UNICEF project and set up a project to work with RAS survivors of torture and extreme abuse living in the west Midlands, we find that her qualifications are not sufficient to warrant our acceptance of her as a psychiatrist, on whose experience and qualifications we can rely, in establishing that the first Appellant has suffered to the extent that weight should be placed on her opinion to the same extent as on a report of a fully qualified and experienced psychiatrist.

Accordingly, we are satisfied that the Adjudicator came to the correct conclusion in finding that the letter of the Midlands Refugee Council did not carry any medical weight, and that he was correct in finding that it cannot be accepted as a proper medical report.

With regard to the documentary evidence in respect of the first Appellant's membership of, and her family connections with, the Democratic Party, that has been accepted by the Adjudicator and we accept it also, but there is nothing in it to establish that the first Appellant has been the victim of harassment or victimisation by the Socialist Party on account of it, nor do any other documents establish that she or her husband has been harassed or victimised by the Socialist Party. We have looked at the letter from the Durres Branch of the Democratic Party, dated July 2001, in relation to the husband of the first Appellant, but, as far as we can see, it is too vague and gives very little detail as to the nature and extent of the treatment that he may have suffered. The use of the words:-

"After the return in power of ex-Communist in the armed revolution of spring 1997, Mr Myrteza as all the members of the Democratic opposition, has been in a difficult situation having rin isk his life and family life too, as the Communist gang in power beat, kill and humiliate in vandal manner their political opponents", are too general and too biased to support what the Appellant has said in evidence and, looking at the objective evidence, particularly paragraph 3.35 of the CIPU Report, which sets out the actions taken by the government in investigating and the bringing to trial of those involved in the murder of the Democratic Party legislator Smazem Hajdari, paragraph 5.95 of the CIPU Report, which states that there were no confirmed cases of political killings where the government and its agents in 2001, although the main opposition party, the Democratic Party claim that several of its members were harassed and beaten, and paragraph 3.56 of the same report, to the effect that, with a widening split in the Socialist Party, since March 2002, a faction of the Socialist Party had voted with the Democratic Party, it would appear that what is contained in that letter is not in accordance with what is actually happening in the political life of Albania at this present moment in time.

With regard to the "notary certificate" signed by Xhevat Zogu stating that the first Appellant's husband had been dismissed from duty as a police officer in December 1997, for the sole reason of his rightest political views, we are not satisfied that that is sufficient to support the first Appellant's husband's story of his dismissal from the police by the Socialist Party, as it is merely the word of one of his former colleagues, and, as such, does not carry sufficient weight, even at the lower Sivakumaran standard, to satisfy us that it is true, in the absence of any official documentation, whatever as to his dismissal.

With regard to the general political situation in Albania, we, just as the Adjudicator did, in paragraphs 21 to 25 of his determination, have gone into the objective evidence and have come to the conclusion that the situation, as stated in the US State Department Report, namely that the law provides for freedom of speech, and of the press, and that the government generally, respected those rights, that the law protected those rights, although organisers must obtain permits for gatherings in public places, the government made no concerted effort to prevent them, while the police generally maintain order with due respect for citizens rights.

In our considered opinion, the Appellants have not shown themselves to have been telling the whole truth, that they have shown themselves to have been embroidering and exaggerating their evidence and that the first Appellant has not raised her complaints about the alleged human rights abuses by the police and/or the Socialist Party with the Ombudsman. In all these circumstances, we are not satisfied that the Appellants have established a well-founded fear of persecution for a Convention reason nor have they established that the United Kingdom government would be in breach of their rights under the ECHR, in returning them to Albania.

Accordingly, we uphold the decision of the Adjudicator, and dismiss this appeal.

This appeal is, accordingly, dismissed.

J A O'BRIEN QUINN QC

CHAIRMAN