Peteira Mandro Bamunoba Makuro v. Secretary of State for the Home Department

Peteira Mandro Bamunoba Makuro v Secretary of State for the Home Department

Immigration Appeal Tribunal

[1984] Imm AR 198

Hearing Date: 5 December 1984

5 December 1984

Index Terms:

Practise and Procedure -- Political asylum -- Standard of proof -- Whether appellant required to establish that it was more probable than not that he had well founded fear of persecution in the country he would be required to go to -- HC 169 para 134.

Held:

The facts are set out in the determination. Held: The standard of proof did not require the appellant to establish that it was more probably than not that such fear was well founded. A relevant and important consideration was not only whether he would face persecution if returned to any particular country, but whether he would necessarily be returned there at all. The possible danger occasioned by refusal of variation of leave to remain was less than the possible danger occasioned by a decision to deport him: the onus of proof would be of a higher standard in the former case than in the latter.

Cases referred to in the Judgment:

Kazie (Unreported) TH/110725/83 (3067) of 21 February 1984. Enninful (Unreported) TH/119683/84 (3423) 17 September 1984. Ritha (Unreported) TH/110277/83 (3232) 24 May 1984. Khawaja v Secretary of State for the Home Department (HL) [1983] 1 All ER 765, [1982] Imm AR 139, HL.

Counsel:

E Yaansah of the United Kingdom Immigrants Advisory Service for the Appellant; J Daly for the respondent. PANEL: DL Neve Esq (President), Professor DC Jackson and GW Farmer Esq Vice-Presidents.

Judgment One:

THE TRIBUNAL: The appellant, a citizen of Angola, appeals against the decision of an adjudicator (Mr JR Bright) dismissing his appeal against the refusal by the Secretary of State to vary his leave to remain in the United Kingdom. The appellant arrived in this country on 17 November 1982 with a visitor entry clearance. He was admitted for two months and on 7 January 1983 applied for asylum, the application being refused on 9 January 1984. Notice of the refusal was effectively sent either on 9 January 1984 or on 19 January 1984. In his determination, the adjudicator summed up the merits, and indicated his view of the appellant and the standard of proof he employed in reaching his decision. "11. I will now turn to consideration of the actual merits of the application. In doing this I must clearly have regard to the background of Angola. In this respect I have carefully considered the Amnesty International briefing provided for me by Miss Connelly who could not be accused of exaggeration when with commendable restraint she described the situation there as not the most stable. In assessing the position I have little to rely on except the explanatory statement and the appellant's evidence. In many respects the explanatory statement was highly subjective and left much to be desired. However the appellant's evidence was little better and failed to convince. It seems clear that neither he nor his family engaged in political activity, are influential or are of any importance. He says that he was a teacher who openly criticised the economic follies of the government in the presence of his pupils. This may well have been so and I accept it could have led to his detention. I also accept that such critics would incur the displeasure of the regime. However the appellant's own account of his detention did not reveal persecution. Standards of accommodation and food in prisons in countries like Angola leave much to be desired but on the evidence the appellant was not singled out for any particularly harsh treatment. He was deprived of food and water and interrogated but there was no evidence that he was tortured in any other way. He was released after about 3 days and this could have been facilitated by bribery. The circumstances of the release are vague and the appellant's evidence was unpersuasive. I cannot accept that were the appellant a marked man he would, even with the aid of a bribe, which would well have been more considerable than the ECO allowed, have been permitted to escape from a prison which the appellant states was for those awaiting execution. Subsequently he was able to leave the country by a regular flight and with proper travel documents. I was not particularly impressed by the ECO's doubts regarding these as it is notorious that documents can be obtained irregularly and with comparative ease. Bribery is endemic and is demanded even in routine and perfectly proper transactions. On the other hand the appellant's account of his dealing with the ECO was confused and carried no conviction. I could not believe his claim that he himself had never attended the consulate in Angola. The appellant's credibility was further weakened by his claim that the officer here twice offered to give him tickets and travel documents for any free country but Angola. This runs completely counter to the general tenor of the interview and like Mr Ford I cannot accept that the officer would say this. Nor was I impressed by the appellant's evidence of the confiscation of his passport. Had this happened as suggested by the appellant he would have been in no position as he claims to have demanded and obtained a copy. The other matter raised by the appellant was his connection with South Africa and UNITA. The evidence on this was tenuous in the extreme and amounted to nothing more than that he had received some financial assistance towards his education in Zaire. Nevertheless he returned to Angola, took no part in politics and had responsible employment for several years during which he encountered no difficulty until he was detained. The appellant may have a fear of returning to Angola but the facts and the evidence show overwhelmingly that any fear he may have is not well founded. 12. In arriving at this conclusion I have applied the liberal standard of proof as indicated in Kazie (3067). On what was before me there was no justification for varying the decision of the respondent." The adjudicator accepted that there were deficiencies in the explanatory statement -- in particular in regard to paragraph 7, in which the Immigration Officer (who was English) alleged that the appellant spoke poor French and that the Immigration Officer had therefore conducted part of the interview in Portuguese. Because of grammatical errors by the appellant in Portuguese (as the Immigration Officer saw them) the Officer cast doubt on the appellant's claim to have been educated in a University. The Immigration Officer's notes show that in his own opinion he (the Officer) spoke French more fluently than Portuguese. We agree with the adjudicator that any reliance on the explanatory statement must be qualified because of the unsupported linguistic criticism by a person whose own linguistic abilities are certainly unclear. This is the more so as the appellant apparently gave evidence before the adjudicator clearly in French. Nevertheless, it is for the appellant to establish his case according to the standard of proof appropriate to asylum. The standard of proof The question of the standard of proof has been the subject of a number of recent Tribunal decisions. The adjudicator said that he applied the liberal standard of proof as indicated in Kazie (3067). Mr Yaansah drew our attention to the decisions in Enninful (3423) and Ritha (3232) as supporting Kazie. Mr Daly did not demur that the appropriate standard of proof was that expressed in those decisions. We agree. In Ritha the Tribunal reviewed previous Tribunal decisions on the appropriate standard of proof and referred to the speech of Lord Scarman in the case of R v Secretary of State, ex parte, Khawaja [1982] Imm AR 139 in relation to the proper application of this standard. In that case, as is well-known, the House of Lords underlined the principle that in civil cases the standard of proof is the balance of probability proportionate to the nature and gravity of the issue. As we say, we agree with the approach adopted in Enninful and Ritha, which seems to us to be that: 1. The standard of proof in cases of asylum does not require that an appellant establishes that it is more probably than not that he has a well-founded fear of persecution in the country to which he would have to go if required to go. In the words of the Tribunal in Enninful "a person facing "less than evens" chance of persecution could still be properly found to have a well-founded fear of that eventuality". 2. Considering whether an appellant has established his case, according to the criterion in 1, as the Tribunal said in Ritha "the degree of risk encompasses not only what may occur in a country but the potential mandatory entry into that country". A relevant and important consideration is, not only whether an appellant will face persecution if returned to any particular country, but whether he will necessarily be returned there at all. Thus the possible danger to an appellant occasioned by a refusal to vary his leave to remain is less than the possible danger occasioned by a decision to deport him and the onus of proof upon him in the former case will be of a higher standard than it will in the latter case. Application of the principles to this case In our view, in this case, the adjudicator applied the correct standard of proof; he warned himself of the deficiencies in the case made by the explanatory statement and he based his decision on the totality of the evidence before him. While we accept Mr Yaansah's point that detention of itself can amount to persecution, any detention is a question of fact to be taken into account as part of the evidence as a whole. The adjudicator saw the appellant and was clearly unimpressed by him. There is nothing in the evidence from which we could infer that the adjudicator was wrong in his assessment or in the light of that assessment his conclusion. Applying the standard of proof indicated above, and bearing in mind the gravity of the issue in the context of an application for variation of leave, we are of the view that the appellant has failed to establish his case.

DISPOSITION:

Appeal dismissed.