Nagat Baghat Asad Al Kazie v. Secretary of State for the Home Department
| Publisher | United Kingdom: Asylum and Immigration Tribunal / Immigration Appellate Authority |
| Author | Immigration Appeal Tribunal |
| Publication Date | 8 February 1984 |
| Citation / Document Symbol | [1984] Imm AR 10 |
| Cite as | Nagat Baghat Asad Al Kazie v. Secretary of State for the Home Department, [1984] Imm AR 10, United Kingdom: Asylum and Immigration Tribunal / Immigration Appellate Authority, 8 February 1984, available at: https://www.refworld.org/cases,GBR_AIT,3ae6b6358.html [accessed 3 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. |
Nagat Baghat Asad Al Kazie v Secretary of State for the Home Department
Immigration Appeal Tribunal
[1984] Imm AR 10
Hearing Date: 8 February 1984
8 February 1984
Index Terms:
Political Asylum -- Respondent conceded appellant had genuine fears of persecution but maintained the fears were not well founded -- Appeal against refusal of application dismissed by adjudicator who was not satisfied "even on balance of probabilities" -- Whether adjudicator had applied the wrong test in determining whether the fears were well founded or not -- HC 169 para 134.
Held:
The facts are set out in the determination. Held: (i) Whilst cases relating to political asylum occurred in a context different from those arising from the Fugitive Offenders Act 1967 they were in some respects (eg -- a person's freedom of movement) analogous. (ii) The speech of Lord Diplock in Fernandez v Government of Singapore and others [1971] 2 All ER 691, a case in which the House of Lords considered the provisions of section 4(1) of the Fugitive Offenders Act 1967, offered the most valuable guidance as to the test to be applied in the present case.Counsel:
A Riza of Counsel for the appellant; N Neathey for the respondent. PANEL: DL Neve Esq (President), Mrs JD Caine, LW Chapman Esq.Judgment One:
THE TRIBUNAL: The appellant, who has a Turkish father and a Kurdish mother, is a citizen of Iraq. He arrived in this country in September 1977 when he was admitted as a visitor for two months. He suffers from a congenital deformity, having very short arms and only two fingers on each hand. He was granted extensions of stay to enable him to explore the possibility of possible surgery in connection with his deformity. Later he was granted extensions of stay because he had been involved in a motor car accident and became involved in litigation in consequence. The last extension granted for this purpose expired on 20 July 1982. On 19 July 1982 solicitors on his behalf applied for a further extension and in the course of ensuing correspondence they claimed political asylum on his behalf. This claim was investigated by the Secretary of State but the application was refused on 21 March 1983 because, in the words of the notice of refusal, "The Secretary of State is not satisfied that your fear of persecution is well founded". The appellant appealed to an adjudicator against this refusal. His appeal was heard by Mr M Patey, MBE, and was dismissed on 13 October last. Against Mr Patey's determination he now appeals to the Tribunal. The principal reasons leading to the Secretary of State's decision to refuse the appellant's application are contained in paragraphs 14, 16 and 17 of the Home Office explanatory statement which reads as follows: "14. The appellant and his Solicitor claimed that he was being harassed by the Iraqi authorities in London since 1979; that they had accused him of being a spy, that they followed him around and that they questioned other Iraqis about him. Both the appellant and his Solicitor were hazy about the details but said that a written summary of the occurrences were being sent to the Home Office. When asked what his plans were if he was refused political asylum, the appellant stated that he would definitely not go back to Iraq and that he did not know what he would do. He said that Mr Akram knew of his application to the Home Office and that Mr Akram himself had applied for asylum. The appellant claimed that Mr Akram had been involved in Iraq with Yugoslavian military intelligence; no further details were forthcoming. 16. On 31 December 1982 Messrs Fletcher, Dervish & Co, Solicitors wrote to the Home Office and submitted 2 written statements in support of the appellant's application (Annex E). One statement, from Mr Cole Darigha, said that during the period September 1978 -- August 1979 2 men had called at their address asking for the appellant, and that the same 2 men had also visited the house after August 1979, again asking for the appellant and claiming to be from the Iraqi Embassy. The second statement, from Mr Mahmoud Ghannam, said that in July 1978 and the following weeks he had been informed by a Saudi Arabian man and by a man who claimed to be from the Iraqi Embassy, that the appellant was not a Moslem but a Christian and that he should not be in the mosque. 17. The Secretary of State carefully considered the application. Messrs Fletcher, Dervish & Co, Solicitors had applied on the appellant's behalf for asylum in the United Kingdom on the ground that if he returned to Iraq he feared he would be persecuted. The appellant had never been involved in politics and none of his family were politically active. Apart from his parents and one brother being questioned for a few days in 1980 about his whereabouts, the appellant's family had had no problems with the authorities in Iraq. The appellant claimed that in 1976 and in April 1977 he had been detained by the military authorities in Iraq and questioned about a friend's whereabouts and activities. However, on the first occasion he had been released after one day, and on the second occasion he had been released after 3 days, and he had had no further problems in Iraq. These incidents had occurred more than 5 years ago. The appellant also claimed that in Summer 1978 he had been accused by an Iraqi official in London of being a Christian and not a Moslem. It was also claimed that in 1979 2 men from the Iraqi Embassy had visited the appellant's lodgings and enquired about his whereabouts. In neither of these incidents had there been any suggestion that the appellant had been or was a spy or actively involved in politics. These events had taken place over 3 years ago and since then the appellant had not apparently been harrassed in any way by Iraqi officials. Indeed he had successfully applied for a new passport and had been granted this in February 1982 without any problem. The Secretary of State was not satisfied that the appellant's fear of persecution was well founded, and he therefore refused the application on 21 March 1983 (HC 169 paragraph 134 refers). At the same time the appellant was granted leave to remain until 31 October 1983, subject to the same condition prohibiting employment, to enable him to pursue litigation." When the appeal went before the adjudicator he heard evidence from the appellant, Mr Mahmoud Ghannam and Mr Cole Darigha -- the two gentlemen whose statements had been submitted to the Home Office by the appellant's solicitors. They all confirmed the matters previously alleged by them to the Home Office, and the appellant added that he had twice been arrested in Kirkuk, where he was living before coming to the United Kingdom, and assaulted on a subsequent occasion in Baghdad. He called at the Ministry of Defence to collect the salary of a friend of his -- this friend was suspected of spying for the British -- and the appellant was, he says, kept in a military prison for 3 days, interrogated and beaten. It was conceded by the Home Office representative before the adjudicator that the appellant's fears of returning to Iraq were genuine but it was submitted that they were not well-founded and the appellant could only qualify for political asylum (under paragraph 134 of HC 169) if he had a well-founded fear of persecution for reasons of race, religion, nationality, membership of a particular social group or political opinion. The adjudicator carefully reviewed the evidence before him and concluded his determination in this way: "Mr Gulvin has, and in my view properly, conceded that the appellant's fear of persecution should he return to Iraq are genuine. The only matter at issue is, therefore, whether these fears are well-founded. I appreciate that the appellant's severe physical handicaps will make him more vulnerable to rough handling and persecution and it is fully understandable that for this reason, he is more susceptable to such fears. I am also aware that in certain primitive communities persons suffering from severe physical handicap are frequently treated with derision and even cruelty. However these factors, whilst very relevant to any possible subsequent decision by the respondent as to whether to remove the appellant from the United Kingdom, are of no direct relevance to the present appeal. I must note that neither the appellant nor any members of his family have played any significant role in politics and that the appellant, since his arrival in this country, appears to have had no contact with any organisation opposed to the present Iraq government. Although the appellant has stated he does not support the present government, he has not taken any steps to publish his opposition. Apart from the fact of his Turkish/Kurdish origins and his friendship with a former employee of the Iraq Ministry of Defence, there are no good grounds for the appellant to be the target of persecution. I do not consider the appellant's origins to be sufficient to justify his fears and his known friendship with Mr Akram did not prevent him from leaving Iraq in 1977 with the full authority of the state. There is nothing before me to suggest that the statements made in the Mosque in 1978 by an Iraqi Embassy Official regarding the appellant's faith were other than a chance cruel remark and the fact that the appellant has not been troubled since he left the premises he shared with Mr Akram in 1979, despite the fact that he presumably gave the Iraqi Embassy his address when he obtained a new passport in 1982, must indicate that his fears of returning to Iraq are without proper foundation. Indeed, after reviewing the totality of evidence before me, I cannot be satisfied, even on balance of probabilities, that the appellant's fears of persecution are well-founded. This appeal must therefore be dismissed." Mr Riza and Mr Neathey each reviewed various aspects of the evidence, and Mr Neathey submitted that the adjudicator's conclusion that the appellant's fears were not well-founded was a reasonable one, properly supported by the evidence before him. Mr Riza on the other hand submitted inter alia that the adjudicator had applied a wrong test in determining whether the fears were well-founded or not -- specifically when he stated that he could not be satisfied "even on balance of probabilities" that the fears were well-founded. Mr Riza referred us to the case of Fernandez v Government of Singapore and Others [1971] 2 All ER 691 which was a case in which the House of Lords considered the provisions of Section 4(1) of the Fugitive Offenders Act 1967. This Section is analogous to paragraph 134, HC 169 and provides that a person shall not be returned to a country if it appears "that he might, if returned, be prejudiced at his trial or punished, detained or restricted in his personal liberty by reason of his race religion, nationality or political opinions". The speech of Lord Diplock in that case contains the following passage:"For my part I think it only leads to confusion to speak of "balance of probabilities" in the context of what the court has to decide under Section 4(1) of the Act. It is a convenient and trite phrase to indicate the degree of certitude which the evidence must have induced in the mind of the court as to the existence of facts, so as to entitle the court to treat them as data capable of giving rise to legal consequences. But the phrase is inappropriate when applied not to ascertaining what has already happened but to prophesying what, if it happens at all, can only happen in the future. There is no general rule of English law that when a court is required, either by statute or at common law, to take account of what may happen in the future and to base legal consequences on the likelihood of it happening, it must ignore any possibility of something happening merely because the odds on its happening are fractionally less than evens."
Later in the speech Lord Diplock said: "Bearing in mind the relative gravity of the consequences of the court's expectation being falsified either in one way or in the other, I do not think that the test . . . is that the court must be satisfied that it is more likely than not that the fugitive will be detained or restricted if he is returned. A lesser degree of likelihood is, in my view, sufficient; and I would not quarrel with the way in which the test was stated by the magistrate or with the alternative way in which it was expressed by the Divisional Court. "A reasonable chance", "substantial grounds for thinking", "a serious possibility" -- I see no significant difference between these various ways of describing the degree of likelihood of the detention or restriction of the fugitive on his return which justifies the court in giving effect to the provisions of Section 4". Whilst we appreciate that cases arising out of the Immigration Regulations relating to political asylum must necessarily occur in a context different from those arising out of the Fugitive Offenders Act, nevertheless since persons' freedom of movement is at stake in each kind of case and the wording of the comparative provisions is so similar we consider that the remarks of Lord Diplock which we have quoted offer the most valuable guidance in this case and other cases of this nature. Unfortunately the adjudicator does not indicate in his determination what his view was of the veracity or otherwise of the appellant and his witnesses but judging from the tenor of his determination -- and despite discrepancies which have been brought to our notice by Mr Neathey -- he appears by and large to have accepted what they say. This was no doubt a borderline case but applying the principles indicated by Lord Diplock we have come to the conclusion that the appellant's fears could probably be regarded as well-founded.DISPOSITION:
Appeal allowedCopyright notice: Crown Copyright
