Elvis Ameyaw v. Secretary of State for the Home Department

ELVIS AMEYAW v SECRETARY OF STATE FOR THE HOME DEPARTMENT

Court of Appeal (Civil Division)

[1992] Imm AR 206

Hearing Date: 3 December 1991

3 December 1991

Index Terms:

Political asylum -- citizen of Ghana -- member of Civil Defence Organisation -- arrested on charge of dishonesty -- acknowledged he had stolen half the amount of money specified in the charge -- asserted that hostility of police and military towards Civil Defence Organisation would prevent his having a fair trial before a Public Tribunal -- whether Secretary of State acted reasonably in rejecting that contention.

Held:

Appeal from Macpherson J who had dismissed an application for judicial review of the refusal by the Secretary of State to grant political asylum to a citizen of Ghana who claimed that if returned to Ghana he would not have a fair trial. The appellant had been a member of the Civil Defence Organisation: he had arrested a cocoa smuggler. He had he said retained half a million CFAs (Colonies Francaises d'Afrique francs, the currency in inter alia the Ivory Coast) taken from the smuggler. The smuggler subsequently laid an information that the appellant had taken one million CFAs from him. The appellant was arrested. He escaped from jail, and fled ultimately to Turkey. From Istanbul he flew to the United Kingdom on forged documents. On arrival in the United Kingdom he claimed political asylum. He asserted that the police and the military authorities were hostile to members of the Civil Defence Organisation. Evidence would be fabricated: he would not receive a fair trial in Ghana before a Public Tribunal. The Secretary of State rejected his contention that he would not receive a fair trial. Macpherson J in dismissing the application had concluded it "was not a persecution case at all at root". Before the Court on appeal it was argued that although the appellant was not being persecuted by reason of membership of the Civil Defence Organisation per se there was a real risk of persecution by reason of his activities as a member of the Civil Defence Organisation, because of the hostility of the police and the military towards members of that organisation. Held: 1. The Secretary of State had dealt with the case with complete propriety. There was no evidence of a proper asylum claim before him. 2. There was no suggestion the Secretary of State had not taken into account all relevant facts. 3. There was nothing Wednesbury unreasonable in the conclusion of the Secretary of State.

Cases referred to in the Judgment:

R v Secretary of State for the Home Department ex parte Elvis Ameyaw (unreported, QBD, 10 June 1991).

Counsel:

A Collins QC and Miss I Rahal for the appellant; I Ashford-Thom for the respondent PANEL: Parker, Nolan LJJ, Sir Roger Ormrod

Judgment One:

PARKER LJ: The appellant, Mr Elvis Ameyaw, is a native of Ghana and was born in that country on 15 March 1960. He is thus some 31 years old. He arrived in this country from Turkey on 29 March 1990 and promptly claimed asylum. That was refused by letter dated 20 August 1990, which followed upon an earlier letter commonly known in this sort of application as a "minded to refuse letter". Thereafter further representations were made by letter but the initial decision was adhered to and on 29 November 1990 a formal notice of refusal of asylum and of removal to Ghana was given. On 11 December 1990 he applied for leave to move for judicial review, which was granted by Schiemann J. On 10 June 1991 the application was heard and refused by Macpherson J. He now appeals from that refusal. The case has a number of remarkable features which will emerge during the course of this judgment. On claiming asylum the applicant was interviewed and the matter was then referred, in accordance with the proper procedure, to the Home Office. The undisputed account of what he then told the interviewing officer appears in the bundle before us at page 27, which is a continuation sheet of the asylum questionnaire and purports to set out the basis of his application for a claim for asylum. It is a recording by the interviewing officer of what he was told. It reads as follows: "The passenger told me he was a member of the Civil Defence Organisation in Ghana for three years. This is an organisation funded by the Ghanaian government, manned by civilian volunteers. They are not paid but are rewarded for making arrests. In September 1988 the passenger was going to a village to see a friend, when he saw a man with empty sacks who was going to buy coca beans from the local farmers and smuggle them to the Ivory Coast. This is an illegal activity in Ghana. The passenger arrested this man and took him back to his head office. Whilst under arrest, the man alleged that the passenger had taken one million CFA's from him when the passenger had in fact only taken 500,000 CFA's from him. A police officer attached to the office chose to believe the arrested man, as the passenger had been alone when he made the arrest and he had no witnesses. The passenger was then himself arrested and put into cells, whilst they prepared the case against him for the tribunal. Whilst he was awaiting trial a friend of his helped him to escape. He went first to his home town to collect his passport and then left Ghana on 24.10.88, travelling by truck through the Ivory Coast and Senegal. He stayed in Senegal for 3/4 months with a friend and then went to Libya, entering Libya illegally from Tunisia. He was in Libya for about twelve months, working for a farmer, doing labouring work. He left Libya, because they started to arrest their illegal immigrants and went by boat to Istanbul. In Turkey he was befriended by a tourist (a black American) who paid for his ticket to the UK and obtained his forged passport, which he destroyed on entry to the UK." It should be noted that in that reported interview there is not a shadow of a case for asylum being made out within the Convention. It is a simple case of somebody saying they had been charged with an offence, had been put in prison awaiting trial and had then escaped. All that is revealed, as I say, is a simple criminal charge. Following upon that interview and consideration by the Home Office the "minded to refuse letter" set out the Secretary of State's view. I need only read one paragraph: "Your account does not give rise to any claim to asylum for a reason as defined by the 1951 United Nations Convention relating to the Status of Refugees. There is nothing in your account to suggest that you are fleeing persecution, rather the suggestion is that you are fleeing prosecution for a criminal offence. The Secretary of State has no reason to believe, if you were brought to trial, that you would not receive a fair trial conducted according to Ghanaian law." That letter provoked a reply, although the dates on these letters are somewhat puzzling, in which it was said on Mr Ameyaw's behalf: ". . . Mr Ameyaw totally refutes the suggestion that the only reason he is claiming political asylum is that he is fleeing prosecution for a criminal offence. His point is that his experience of the situation in Ghana puts him in fear of persecution because he would not receive a fair trial there and may well be detained for many months without any trial at all. Mr Ameyaw instructs us that the reason he did not apply for asylum in either Senegal or the Ivory Coast was that he did not know of the procedure we call political asylum until he was advised about it by the friend he met in Istanbul." That was followed by a further interview and a letter of refusal sent on 20 August. The material part of that letter reads as follows: "You produced in support of your application a photograph which has been sent to you, showing you in CDO uniform. You also explained that you had received a letter from home which said that the police had been looking for you. You submitted a copy of that letter to the immigration officer. You also said that the CDO was set up by the government of Ghana to combat the smuggling of cocoa. You described the CDO as a civilian organisation and as such it is unpopular with the police and the military. You said that members of the CDO have been accused of keeping money taken from detainees for themselves and those accused have been harshly dealt with because of the CDO's unpopularity in official circles. You said that this meant they did not receive proper trials. You said that you believe that you would be persecuted by the authorities because of your involvement with the CDO which is a special group with special functions set up by the Ghanaian government. The Secretary of State does not consider that even if you were involved with the CDO as you claim, you would be at any risk from the authorities because of your activities as a CDO member. The CDO is a government organisation and you have given no reason why you should be unwilling or unable to avail yourself to the governments protection if you were subjected to threats or not dealt with fairly within the law in Ghana. The Secretary of State has reconsidered your asylum application but it is not satisfied that you qualify for asylum under the terms of the 1951 United Nations Convention relating to the status of refugees and therefore formally refuses your application." Following upon that refusal the applicant changed solicitors and on 11 October 1990 Wilson & Co, who had become his solicitors, wrote a long letter which it is unnecessary for me to read. That letter did not result in any change of front and on 29 November a further letter was written which confirmed that the initial decision was being adhered to. Mr Collins submits that the Secretary of State erred in regarding prosecution and persecution as mutually exclusive and submits that the matter should be sent back for reconsideration. He further submits that the Secretary of State failed to understand the applicant's case, which was that, although he was not being persecuted by reason of membership of the CDO per se, there was a real risk of persecution by reason of his activities as a member of the CDO. The case, he says, stands thus. There is a conflict between the military and the police on the one hand, and the CDO on the other, stemming from two matters. Firstly, because the CDO are remunerated by receiving half the value of any cocoa which they seize and hand over to the Cocoa Board, which results in members of the CDO sometimes receiving large sums of money whereas the military and the police have no such ability to earn great sums but are on small salaries. Secondly, and closely allied to that matter, because the CDO's activities hamper what is stated to be the corrupt practices of the military and the police in their dealings with smugglers, it being suggested that they take bribes from smugglers and indeed become involved in the smuggling themselves. Mr Collins, with great ingenuity and skill, has produced submissions as to fine distinctions which, for my part, I find unable to accept. The matter can be seen, in my view, in simple terms. The appellant was accused by a person whom he believed to be a smuggler, of taking one million CFAs from that person, whereas according to him he had taken only half a million CFAs from that person. The accusation was not made by the police or the military, the accusation was made by the arrested person. The accusation was made to the applicant's commanding warrant officer and the applicant was arrested. It was supported by a policemen himself who had heard the accusation and also by two alleged witnesses who were soldiers and said to have been present when the sum of money was taken. It is suggested that this was a police frame-up and that if the matter goes to trial the applicant is doomed to lose. The evidence that there would not be a fair trial is rejected by the Home Secretary who, according to the evidence, had investigated the matter. The highest it can be put on behalf of the applicant appears in the second bundle before us in the form of a statement which is made by a gentleman who has had experience of 15 months in Ghana and who made a report at the request of those advising the applicant. In that report he says this: "I find it less easy to comment whether the applicant would receive a fair trial if he returned to Ghana. The Rawlings government has, in my view, made a real effort to punish those who are genuinely guilty of corruption and other economic crimes and in as impartial a manner as possible. Nevertheless, it has to be said that the Public Tribunals were initially established to dispense rapid justice (since the courts were regarded as too cumbersome) and the Ghana Bar Association has repeatedly questioned whether the Tribunals fulfill the minimum conditions of a fair trial. Indeed the Bar Association has to the present day endeavoured to prevent its members from appearing in the Tribunals. It has also to be said that senior Tribunal officials have been removed for alleged corruption and abuse of office, although there is suspicion that other reasons were paramount. Most recently the Chairman of the Public Tribunals was suspended after condemning the alleged interference of a PNDC Secretary in proceedings on behalf of an acquaintance . . . If this is correct, it suggests that the Tribunals are indeed open to a measure of personal interference. That being the case, the applicant has legitimate grounds for concern about his chances of acquittal if the police and the soldiers are indeed eager to frame him." If the matter goes to trial, Mr Collins submitted that there is a tendency on the part of the Tribunal to accept the evidence of the police and/or the military, rather than the evidence of a member of the CDO. It can be said of many tribunals that they may start with a notion that the forces of law are to be believed, but they are frequently forced to come to another conclusion. If the witnesses are speaking the truth then it is entirely right that Mr Ameyaw should be convicted and suffer whatever is the appropriate penalty in Ghanaian law. If, on the other hand, the witnesses are lying and are disbelieved there is no reason to believe that he will not be acquitted. The case has the remarkable feature about it that this a member of a government-formed and government-funded organization complaining of persecution by, as I understand it, the police and the military, or alternatively, as Mr Collins put it at one stage in his argument, as a result of the system. It is a remarkable claim, but it is unnecessary to go into the question whether in appropriate circumstances such a case could be made out. I am satisfied that the Secretary of State dealt with this case with complete propriety. There was no evidence of a proper asylum claim before him. He considered all the matters that he should consider and he came to a conclusion with which this court could not in my view possibly interfere. I would therefore dismiss this appeal.

Judgment Two:

NOLAN LJ: I agree. This case, like all asylum cases, calls for the most careful scrutiny. Having given it that scrutiny there is, so far as I can see, only one ground upon which the applicant could succeed and that is the existence of a serious possibility that he will not get a fair trial upon the straightforward criminal offence of which he is accused. The existence or otherwise of this possibility is essentially a question of fact. Mr Andrew Saunders, a senior executive officer in the Immigration and Nationality Department of the Home Office, says at paragraph 10 of the affidavit sworn by him on 8 March this year: "The Secretary of State also noted the applicant's contention that he would not receive a fair trial in Ghana. Whilst it is accepted that such a trial might not match the exemplary standards of the courts in some countries the information available to the Secretary of State (including the report of Amnesty International at page 53 of the applicant's bundle) does not lead the Secretary of State to conclude that the applicant would receive an unfair hearing, or that he would be treated differently because he is a member of the CDO and/or because of the nature of the alleged offence. Whilst the applicant's solicitors suggest the Ghanaian authorities are seeking 'to create scapegoats' the Secretary of State considers in the light of evidence available, that there is no reason to suppose the applicant will be unfairly singled out and in particular simply because of his membership of the CDO." The Amnesty International report is of a guarded nature, as is the report by Mr Nugent which was not submitted to the Secretary of State for his decision but was put before this court and the learned judge below by the applicant. To my mind there is nothing in that report or in the Amnesty International report that can produce the beginnings of a case for saying that the Home Secretary has acted irrationally or unfairly. It is, of course, a matter of concern to find that the Ghanaian Bar Association, to whom all credit for their vigilance is due, are discouraging their members from appearing before public tribunals of the kind by which the applicant would be tried. What, however, is encouraging is to see that there appears to be no lack of organizations such as the Ghana Bar Association and Amnesty, who take a close interest in proceedings before such tribunals. It is not therefore as if this applicant is being sent into the darkness. There is, as my Lord has said, no reason why the Secretary of State should not have concluded that there is every prospect of his obtaining a fair trial by the standards accepted by the people of Ghana. I would therefore dismiss this appeal.

Judgment Three:

SIR ROGER ORMROD: I agree and do not wish to add anything.

DISPOSITION:

Appeal dismissed

SOLICITORS:

Wilson & Co, Treasury Solicitor