R v. Immigration Appeal Tribunal, Ex parte Hernandez

Publisher	United Kingdom: High Court (England and Wales)
Author	High Court (Queen's Bench Division)
Publication Date	15 June 1994
Citation / Document Symbol	[1994] Imm AR 506
Cite as	R v. Immigration Appeal Tribunal, Ex parte Hernandez, [1994] Imm AR 506, United Kingdom: High Court (England and Wales), 15 June 1994, available at: https://www.refworld.org/cases,GBR_HC_QB,3ae6b63b2b.html [accessed 4 November 2019]
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R v IMMIGRATION APPEAL TRIBUNAL ex parte HERNANDEZ

Queen's Bench Division

[1994] Imm AR 506

Hearing Date: 15 June 1994

15 June 1994

Index Terms:

Political asylum -- persecution by non-government group -- citizen of Colombia -- veterinary administrator -- assertion that guerilla group obliged him to supply them with drugs -- fear of consequences of refusal -- assertion that authorities were unable to protect him -- whether special adjudicator correct to find applicant's circumstances did not bring him within the Convention -- whether recommendation that Secretary of State should consider granting applicant exceptional leave inconsistent with that finding. Handbook on procedures and criteria for determining refugee status (1979) para 65.

Held:

Application for leave to move for judicial review of the Tribunal's refusal of leave to appeal from the determination of special adjudicator who had dismissed an appeal against the Secretary of State's refusal to grant asylum. The applicant was a citizen of Colombia, a veterinary administrator who claimed he had been obliged to supply drugs and medicines to a guerilla group. He feared the consequences of refusing to co-operate with them. He had not asked for the protection of government forces, but asserted they would be unable to protect him.

Albeit the adjudicator had concluded that the applicant had exaggerated in his account of events, he had accepted that the applicant had been obliged to supply drugs to guerillas. He concluded however that the applicant's history did not bring him within the Convention. He dismissed the appeal: nevertheless, accepting that the applicant would be at risk from retribution by guerillas, he recommended the Secretary of State to review the case with a view to considering the grant of exceptional leave. The Secretary of State did review the case but decided not to grant such leave.

Before the court counsel submitted that the special adjudicator had erred in concluding that the applicant's case did not fall within the Convention: his recommendation to the Secretary of State was inconsistent with that conclusion.

Held

1. The adjudicator was correct to conclude that the circumstances and experiences of the applicant, as the adjudicator accepted them to be, did not bring the applicant within the terms of the Convention.

2. It was not inconsistent with that conclusion for him to recommend that the Secretary of State review the case.

3. The Secretary of State had done so: his conclusion adverse to the applicant could not be attacked on Wednesbury principles.

Counsel:

O Davies for the applicant; R Plender QC for the respondent

PANEL: Auld J

Judgment One:

AULD J: This is an application by Hector De Jesus Lopez Hernandez for leave to apply for judicial review against the determination of the Immigration Appeal Tribunal of 8 March 1994 refusing him leave to appeal against the determination of the special adjudicator of 28 February 1994 dismissing his appeal against the Secretary of State's refusal on 10 September 1993 to grant him asylum, and the consequential decision of an immigration officer on 5 October to remove him as an illegal entrant.

The applicant is a citizen of Colombia. He is by occupation, or was when in Colombia, a veterinary administrator. In that role he had access to drugs and medicines. He arrived in the United Kingdom on 2 August 1990 and was admitted for six months as a visitor. He applied for asylum. That was refused on 1 May 1991. Apparently he had not returned to the authorities the political asylum questionnaire. Thus, there was no basis upon which his application for asylum could be dealt with favourably to him. He then disappeared. It was not until 2 July 1993 that he was arrested. He was then interviewed in connection with his application for asylum. By this time his wife had joined him in this country. She had applied to remain here as a dependant.

The basis of his application in August 1993 for asylum was that he feared for his life if he were returned to Colombia because, whilst there, he had been forced by a guerilla group, the FARC, to supply its members with drugs and medicines. He feared violence from such a group for the same reason if he returned again and was not amenable to their demands for the supply of drugs.

The matter was heard after refusal of leave by the Secretary of State by way of appeal to the special adjudicator. The special adjudicator dismissed his appeal in a determination of 8 March 1994. In his reasons for determination, the adjudicator accepted some of the evidence of the applicant, but also rejected much of it. The part that he accepted was the factual account that the applicant had given of the threats that had been made to him by members of FARC for the purpose of obtaining drugs whilst he was in Colombia. The part that he did not accept was the applicant's reason for leaving Colombia and seeking asylum in this country. As to the first part of the applicant's evidence, he said:

". . . while, on balance, I consider that I can accept that, to a large extent, he has told the truth with regard to the incidents in which he was involved in FARC but it is clear that any persecution which he suffered was not at the hands of the authorities in Colombia, but at the hands of guerilla groups who were in opposition to the government."

As to the second part of the applicant's evidence, the part he did not accept, he said this:

"In addition, with regard to the appellant's having left Colombia and having sought political asylum in the United Kingdom, and then not having pursued his claim for nearly 3 years, I find it very difficult to accept his evidence as to why he decided to seek political asylum in the United Kingdom, a country with which he had had no previous connection whatever . . ."

He continued:

"I also find it very difficult to accept the appellant's evidence as to why he delayed the filling in of his PAQ until he had been apprehended as an illegal entrant, even though, by then, his wife had arrived in the United Kingdom, also seeking political asylum."

I have listened to the evidence given by the appellant on this aspect of his appeal, but, I find it very difficult to accept as being wholly true, and it leads me to the conclusion that he is lacking in credibility.

As I see the whole situation, while I accept that the appellant did suffer a certain amount of persecution at the hands of the FARC, I do not find that it was sufficiently serious to warrant his leaving Colombia, to seek political asylum, as he never, even on his own evidence, sought the protection of the authorities in Colombia."

Further in his determination he observed:

". . . I find that the appellant has exaggerated his importance to the FARC, has exaggerated the pressures brought on him, and on his father, by the FARC . . ."

The issue of law that was put before the adjudicator was whether the activities of the FARC in Colombia were knowingly tolerated by the authorities there or whether the authorities refused or were unable to offer effective protection. The adjudicator was referred to paragraph 65 of the Handbook which is a gloss of the Commission on article 1 of the Convention which sets out the Convention reasons upon which a person may claim asylum. Those Convention reasons are race, religion, nationality or membership of a particular social group or political opinion. Paragraph 65 of the Handbook reads:

"Persecution is normally related to action by the authorities of a country. It may also emanate from sections of the population that do not respect the standards established by the laws of the country concerned. A case in point may be religious intolerance, amounting to persecution, in a country otherwise secular but where sizeable factions of the population do not respect the religious beliefs of their neighbours. Where serious discriminatory or other offensive acts are committed by the local populace, they can be considered as persecution if they are knowingly tolerated by the authorities, or if the authorities refuse, or prove unable, to offer effective protection."

All that is within the framework of Convention grounds as identified in article 1 of the Convention. The adjudicator did not refer expressly to any of those Convention grounds but considered the issue of law put before him based on paragraph 65.

On that he decided that the applicant had not sought the assistance of the authorities. The applicant agreed that he had not done so, but he said that they would have been unwilling to help him. The adjudicator held that the government and the police were determined to stamp out guerilla groups such as the FARC and that the applicant had not established that he would not be adequately protected. He held that the persecution was never sufficiently serious to warrant the applicant leaving Colombia and that the applicant had exaggerated the pressures.

The point that gives rise to this application derives from the concluding paragraph of the adjudicator's determination. Although he dismissed the appeal, he recommended that the Secretary of State should reconsider the case in the light of a letter from Professor Pearce, an expert on Colombia who had been consulted by the applicant, and all the evidence before him, in order to decide whether his discretion should be exercised outside the rules to give the applicant exceptional leave to remain. After dismissing the appeal he said:

"However, in view of the situation in Colombia, as set out in Professor Pearce's letter of 10 December 1993, it would appear that although the appellant's situation there does not fall within the four walls of the 1951 Convention, the appellant and his wife could very well again become subject to some persecution by the FARC and other guerilla movements in Colombia, having regard to the situation there, where, although law and order have not broken down, a man in the position of the appellant, with access to medicines and drugs, could very well leave himself open to extortion, blackmail or worse."

Mr Davies, on behalf of the applicant, submits that the addition of that paragraph in the adjudicator's determination throws up an inconsistency with his finding against the applicant that he had no well-founded fear of persecution within the Convention grounds justifying his application for asylum. Mr Davies emphasises that it is against the decision of the Immigration Appeal Tribunal not to grant leave to appeal against the decision of the adjudicator that the application is now made, and that I should look at it in the light of the position as it stood then, not in the light of the developments since, notably the Secretary of State's consideration of the recommendation of the adjudicator and, after his consideration, refusal of leave to the applicant outside the rules.

The short point made by Dr Plender, on behalf of the Immigration Appeal Tribunal, is that this is not a Convention case. The reason for such fear as the applicant may have had, went to the danger that he would be in as a veterinary assistant and a person with access to drugs, who, for that reason, might be of interest to guerilla groups seeking drugs for their own purposes in Colombia. That is how the adjudicator found, both in the body of his determination and in the recommendation that he made at the end of it. Although he referred to the applicant being a member of the Conservative Party in Colombia, it plainly did not figure as a central point in the concerns expressed by the applicant for his safety or in the adjudicator's findings.

Dr Plender's point is well made. There is, in my view, no Convention reason justifying the applicant's application for asylum. The adjudicator no doubt had that in mind when he referred in the concluding paragraph of his determination to the fact that the applicant's situation did not fall within the four walls of the 1951 Convention. There is therefore no basis upon which the Immigration Appeal Tribunal, if its attention had been drawn to the point, which it was not, could properly have granted leave to appeal.

I should add that, if and to the extent that there is inconsistency, which, for reasons I have given, I do not accept there was, between the main body of the adjudicator's determination and his concluding recommendation, the matter has effectively been cured by the Secretary of State's consideration of that recommendation. The Secretary of State had access, greater access than had the adjudicator, to information about guerilla groups in Colombia such as the FARC and the threat that they might pose to people in the position of the applicant. He was faced with a recommendation to look at that very point.

He set out in his letter of 5 April 1994 his reasons for rejecting the concern expressed by the adjudicator. He also set out his reasons for concluding, in the light of the information before the adjudicator, that the applicant would not have been of significant interest to the FARC as a supplier of medicines. He noted also that the FARC is not active throughout Colombia and that its influence is limited to certain areas. He considered Dr Pearce's views, but took the view that it would not be difficult for the applicant to settle in an area in which the FARC was not active and be free of its harassment. He also noted the adjudicator's finding that he found much of the evidence of the applicant not credible as to his reasons for seeking asylum.

Thus, the Secretary of State did what the adjudicator recommended should be done, with particular reference to the conditions now prevailing in Colombia. He reached a conclusion that there was no reason for the grant of exceptional leave to remaIn.

On the point of law there is no appealable ground to the Immigration Appeal Tribunal. On the point of justice there can be no possible challenge to the Secretary of State's decision, if it were to be made formally, that exceptional leave should not be granted. I refuse this application.

DISPOSITION:

Application refused

SOLICITORS:

Glazer Delmar London, SE15; Treasury Solicitor.