Isaac Amaning Asante (AKA Richard Darko) Mary Nyarko Buapim v. Secretary of State for the Home Department
| Publisher | United Kingdom: Asylum and Immigration Tribunal / Immigration Appellate Authority |
| Author | Immigration Appeal Tribunal |
| Publication Date | 22 August 1990 |
| Citation / Document Symbol | [1991] Imm AR 78 |
| Cite as | Isaac Amaning Asante (AKA Richard Darko) Mary Nyarko Buapim v. Secretary of State for the Home Department, [1991] Imm AR 78, United Kingdom: Asylum and Immigration Tribunal / Immigration Appellate Authority, 22 August 1990, available at: https://www.refworld.org/cases,GBR_AIT,3ae6b6968.html [accessed 2 June 2023] |
| Disclaimer | This is not a UNHCR publication. UNHCR is not responsible for, nor does it necessarily endorse, its content. Any views expressed are solely those of the author or publisher and do not necessarily reflect those of UNHCR, the United Nations or its Member States. |
Immigration Appeal Tribunal
[1991] Imm AR 78
Hearing Date: 22 August 1990
22 August 1990
Index Terms:
Political asylum -- well-founded fear of persecution -- appellant innocent of alleged embezzlement of funds -- suspected by government of complicity in embezzlement -- government suspected funds had been used to support dissidents -- whether the appellant's well-founded fear of persecution based on government's misconception of his conduct brought him within the terms of the Convention as a refugee. HC 169 para 134: United Nations Convention on the status of Refugees (1951), Protocol (1967) art 1A(2).
Held:
The appellants were husband and wife, citizens of Ghana. They appealed against the refusal of the Secretary of State to grant the first appellant political asylum and the second appellant leave as the dependant of the first appellant: their appeals to an adjudicator had been dismissed. The adjudicator had found them however to be credible witnesses. It followed that he accepted their account of events giving rise to the application for asylum. The first appellant had been employed in a bank. A significant sum of money had been embezzled. The appellant had not been involved in that embezzlement, but the government suspected that he had been concerned and that the funds had been used by dissidents. The adjudicator found that the first appellant had a well-founded fear of returning to Ghana, but dismissed the appeals because he considered that the circumstances did not bring the first appellant within the Convention. Held: 1. On the facts as found by the adjudicator, the first appellant had a well-founded fear of persecution if returned to Ghana: he would be harassed because of his suspected involvement in the embezzlement of funds and would have no chance of a fair trial. 2. It would be wholly contrary to the spirit of the Convention if it did not encompass those who would suffer persecution for the reason that those in power believed that the individual held certain political opinions or was likely to commit acts in support of a political cause. 3. It followed that in the events which had happened, the first appellant had established that he was a refugee within the meaning of the Convention.Cases referred to in the Judgment:
Secretary of State for the Home Department ex parte Sivakumaran and ors [1988] Imm AR 147.Counsel:
Miss P Tuitt for the appellants; A Cunningham for the respondent PANEL: Professor DC Jackson (Vice-President), RE Hunte Esq JP, ML James EsqJudgment One:
THE TRIBUNAL: The appellants, citizens of Ghana, appeal against the decision of an adjudicator (Mr WB Scott CBE JP) dismissing their appeals against the refusal (in respect of the first appellant) to grant asylum and (in respect of the second appellant) as his dependent wife. As the second appellant's appeal depends entirely on that of the first appellant we refer to the first appellant as "the appellant" in this determination. The appellant and his wife gave evidence before the adjudicator. In a comprehensive determination the adjudicator summarised the evidence as a whole, the background to the application and made positive findings of credibility in favour of Mr and Mrs Asante. Mr Asante's case is in essence that he would be subject to persecution if he were returned to Ghana because of his connection in the minds of the government of Ghana with an embezzlement of @20,000 from a bank at which he was employed and the suspicion by those in power that the funds would be made available to "dissidents". The adjudicator concluded his determination by setting out the criteria to be applied in judging any application of asylum and his findings in regard to the evidence before him. The determination reads: "134. A person may apply for asylum in the United Kingdom on the ground that, if he were required to leave he would have to go to a country to which he is unwilling to go owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion. Any such claim is to be carefully considered in the light of all the relevant circumstances." The burden of proof rests on the first appellant. That fear of persecution should be well-founded means that there has to be demonstrated a reasonable degree of likelihood that he will be persecuted for one of the above reasons if he returned to his own country, and whether the fear is well-founded is to be objectively determined by reference to the circumstances prevailing in the country of the appellant's nationality, Ghana. Sivakumaran [1988] Imm AR 147 -- a person is not at risk of being persecuted for his political opinion if no events which would attract such persecution have yet taken place. By "persecution" is meant being subjected to injurious action and oppression. Both Mr Asante and his wife gave their evidence well and consistently. They impressed me as educated, intelligent and articulate. I found their evidence to be credible as to the facts deposed to. I find that Mr Asante was employed as he claimed and it is implicit that he did not embezzle the @20,000. I accept that. There was no evidence as to who stole the money and the bank was content that he should pay @7,000, one third roughly, even though the third "B" signatory had disappeared. However, an organ of the military regime came to know of the matter and the appellant was arrested. He had no option but for his family to raise the @7,000 to secure his release. I accept that it was thought that was the end of the matter but some while later he learnt that soldiers were looking for him, so he fled the country. I do not accept the submission that he feared prosecution for a criminal offence because, on the available facts, there was and never had been any evidence against him, and no charges were ever laid against him. He fled the country and does not wish to return while the present regime is in power, because he feared what might happen to him if he had stayed. The only ostensible reason the authorities should have wished to pick him up again was, I accept, because of a suspicion that he might have been responsible for syphoning off funds to dissidents or coup plotters because others had been suspected or proved to have done this. Again impliedly, he had done nothing of that kind. I reject any likelihood of the authorities linking him with Lieutenant Asante or with his uncle Major Twumasi-Anto, but accept he might have been detained at length and there was always a danger of unreliable evidence being presented against him. The system appears to be such that a fair trial could not be expected. His danger arose from the suspicions raised by other cases. However, the first appellant has given no evidence that he ever showed whatever political opinions he may have had and while I am able to find a reasonable likelihood of persecution I am not satisfied it could have been by reason of such opinions. He was not involved in politics or in agitation for political change, by coups or otherwise. Taking Miss Fielden's point about the political aspect lying in the military's suspicion of a link between the loss of money and plotters of coups, I am unable to agree that any action taken by the authorities in pursuance of that suspicion could be equated with persecution of the appellant for his political opinions. Nor can I find that he was a member of a particular social group which would attract persecution. He was just an accountant in a bank which had suffered other frauds of considerable magnitude and there was nothing to connect the appellant with any of these. I have considered all the relevant circumstances and while I accept the first appellant's fear of returning to Ghana at the time of the decision as being well-founded, I do not find it was for any of the reasons warranting asylum. For those reasons, I find he has not made out his case, and find that the decision of the respondent was justified and in accordance with the law and Immigration Rules. I, therefore, dismiss the appeal of the first appellant, and for that reason the appeal of his wife must also fail. However, being satisfied of the genuine fears of the appellants and that they are not economic refugees nor that the first appellant is a fugitive from justice, I recommend to the Secretary of State that he considers extending to them exceptional leave to remain." As is well-known, paragraph 134 of HC 169 cited by the adjudicator reflects the Convention on the status of Refugees. In essence therefore the adjudicator found against the appellant because, as the adjudicator saw it, the appellant fell outside the ambit of the Convention. It appears to us that the adjudicator found first that Mr Asante did not embezzle @20,000 but was suspected of doing so, second that he was arrested following from this suspicion and had to obtain money from his family to secure his release. Thirdly the adjudicator found that the appellant fled the country because he feared that he might be detained, this fear being founded on the link seen by the military between the appellant and the funds and their purpose. The fear, thought the adjudicator, was well-founded. We conclude therefore that in the adjudicator's eyes the appellant had a well-founded fear of persecution if returned to Ghana. The persecution consisted of likely persistent hounding of the appellant because of the suspicions as to his involvement in the embezzlement, the detention and the lack of a fair trial. In reaching this conclusion the adjudicator weighed the evidence setting it out in considerable detail. Given the adjudicator's opportunity to assess the witnesses the Tribunal agrees with the adjudicator's conclusions. This leaves the question as to whether the adjudicator was right in law in holding that the appellant's case fell outside the Convention and HC 169 paragraph 134. Mr Cunningham did not seek to support the adjudicator's approach in this case and, with respect, we think that the adjudicator erred in not focusing on the view of those in power when assessing whether the appellant would be persecuted. Although the appellant's political opinions seem to play little part in his case, to hold, as did the adjudicator, that the appellant was just an accountant in a bank which had suffered other frauds is to ignore the purpose for which the embezzled funds were thought by those in power to be applied. It is in this that the connection with "political opinion" manifests itself. It would be in our view wholly contrary to the spirit of the Convention if it did not encompass those who would suffer persecution for the reason that those in power in a country believed that the individual held certain political opinions or was thought likely to commit acts in support of a political cause. The adjudicator specifically ruled out any thought that the appellant faced a criminal prosecution and found on the evidence that the motives of the authorities rested in the belief that the funds embezzled were to be made available to plotters. It seems apparent therefore that the persecution to be faced by the appellant was for "political opinion". That phrase must in our view include a case such as this where the opinion is believed by those in power to be held by the applicant as well as in the more usual case founded on the applicant's belief. In our view therefore the adjudicator's findings on the evidence should have led him to allow the appeal. The appeals of the appellant and his wife are allowed.DISPOSITION:
Appeals allowedSOLICITORS:
Solicitors for the appellants: Plumstead Community Law Centre Ltd.Copyright notice: Crown Copyright
