Hamieh v. Secretary of State for the Home Department

HAMIEH v SECRETARY OF STATE FOR THE HOME DEPARTMENT

Court of Appeal (Civil Division)

[1993] Imm AR 323

Hearing Date: 4 August 1992

4 August 1992

Index Terms:

Political asylum -- citizen of the Lebanon -- asserted he had been under pressure to join extremist group -- no personal political activity -- application for asylum refused by Secretary of State -- whether Secretary of State had acted too swiftly -- whether appellant denied opportunity to explain discrepancies in his accounts of events -- whether leave should be granted to move for judicial review. HC 251 para 75.

Held:

Renewed application to move for judicial review, following refusal by Rose J (as he then was). The applicant was a citizen of the Lebanon who had claimed political asylum on his arrival in the United Kingdom. The Secretary of State had refused the application: there had been further evidence produced subsequently in support of the applicant's case: the Secretary of State had maintained his refusal. Before the court it was submitted that the Secretary of State had acted too quickly in rejecting the application: he had also failed, following Gaima, to give the appellant an opportunity to explain discrepancies in his various accounts of relevant events. The applicant did not claim that he had been personally politically active: he asserted that he had resisted pressures to join an extremist group: in consequence he had been harassed and his brother had been murdered. The Secretary of State had not accepted that the applicant was of interest to the extremist group. He also concluded that the appellant's "reluctance to join any military group and fear of pressure in the future to join such a group does not amount to fear of persecution for any reason recognised under the Refugee Convention". Held 1. The Secretary of State had not acted precipitately: he had taken account of all the facts and it was not for the court to re-assess them. 2. Leave to move would be refused. 3. The court did not query the Secretary of State's conclusion that the pressures to which the appellant claimed he had been subjected, did not amount to persecution.

Cases referred to in the Judgment:

Marion Gaima v Secretary of State for the Home Department [1989] Imm AR 205. R v Secretary of State for the Home Department ex parte Mohamed Ibrahim Hamieh (unreported, QBD, 31 July 1992).

Counsel:

Miss F Webber for the appellant; M Shaw for the respondent PANEL: Ralph Gibson, Nolan, Scott LJJ

Judgment One:

RALPH GIBSON LJ: Mohamed Ibrahim Hamieh is aged 24 and is Lebanese. He arrived in this country by air from Morocco on 13 May of this year, having travelled first to Egypt and thence to Morocco where he spent 10 days as a tourist. On arrival in this country he claimed asylum. The grounds recorded when he was interviewed are as follows: He says that: "He lived in an area of Lebanon controlled by Hizbollah who wanted him to join the fight against Israel. He neither wanted to join Hizbollah or fight. . . . Also his father was killed in fighting between Hizbollah and the Amal organisation (his father was an innocent victim). Also the area has many economic problems and because the Syrians control Beirut he cannot get a job." He continued that: "There [was] no future in Lebanon -- no work, no study, his house has been destroyed . . . by Hizbollah and Amal fighting . . . [He] waited 2 years to leave Lebanon because he didn't previously have the money and he was also waiting six months for [a] travel agent to arrange [the] trip." He continued in his account as follows: "[The] basis of [his] present claim [was that he wanted] to live like a human being. There [was] nothing at all in Lebanon." So far as his political or other involvement was concerned, he said that: "[he had] no involvement at all. The area he lived in used to be Amal-controlled area, but then Hizbollah came into the area and wanted all the inhabitants to join their party, which he didn't want to do. Amal didn't force anyone to join their party. Hizbollah did this in 1990 and threatened to kill him if he did not join them in May 1990. He then moved to Beirut to avoid Hizbollah. The Lebanese army took control in 1991 and pressure to join Hizbollah lessened. [In] June 1990 -- he was arrested in Kfar Hata by members of Hizbollah and some Iranian soldiers and taken to the local party HQ. He was questioned for 3 hours as to why he would not join the party. He was not tortured and then released." He signed a piece of paper showing that he had been asked whether he understood the notes and whether there was anything further that he wished to add. On 27 May a letter was sent to him, which is the usual "minded to refuse" letter, setting out what had been said, and the Secretary of State gave the reason then for concluding that he was not entitled to claim asylum. That was 27 May. He was interviewed again on 3 June 1992, and the letter which followed that interview was sent (that is at page 18 of the bundle) and the Secretary of State again, after reciting the additional matter that had been put to him, said that after considering the matter on its merits, all the matters "put forward have been carefully considered" but the Secretary of State has concluded that he still did not, in the Secretary of State's view, qualify. There was a further letter sent by this applicant's previous solicitors, Param & Co, which, we are told, should be dated 16 July 1992 and with reference to which it should be noted at once that he has since repudiated parts of it. That letter added for the first time that he had been tortured during the incidents of 1990, beaten and tortured after interrogation. It is that assertion which he no longer, as we understand it, pursues. That letter also contained reference to the fact that a month after he left the country, which was in April of 1992, his brother was killed by Hizbollah as a revenge against him. He said that he knew of this on 16 June 1992 and his brother was killed in the beginning of that month. These further matters were considered and the Secretary of State communicated in a long letter of 23 July the grounds for maintaining the rejection of his application. Having regard to the submissions made by Miss Webber, it is not necessary to consider those reasons for rejecting his claims for the introduction of having been beaten and tortured and it is accepted that the Secretary of State was entitled, have regard to the way things had gone, to reject that evidence on the facts. Referring to the assertion about his brother being killed, the Secretary of State in the letter pointed to the fact that this had been mentioned in Mr Ali's affidavit of 22 June. The Secretary of State wrote that he "does not believe on the information before him that Mr Mahmoud, [that is the applicant, Mr Hamieh] is of such interest to Hizbollah that they would kill his brother as a revenge attack against Mr Mahmoud"; and the Secretary of State persisted in his view that the case for asylum had not been made out. Arrangements had been made from time to time for the removal of Mr Hamieh from this country. They have been abandoned as further representations had been made and considered. Leave to apply was granted but the proceedings were not pursued upon an undertaking by the immigration department to reconsider the matter and in particular a document said to be a death certificate relating to the brother. That document is now before the court; it was not at the opening of the application before the learned judge to whom this application was first made. It is in the bundle; it is headed "Doctors Hospital", "To Whom It May Concern"; it is dated 30 July and reads as follows: "We would like to inform you that Mr Ali Ibrahim Hamieh a male of 34 years old was admitted to the emergency room of this hospital. Due to two bullets one in his chest and the other in his head. Mr Hamieh died on the 1st of June 1992. Afterwards the investigations showed that a member of Hizbullah assassinated him. This certificate was given to his family upon their request." That arrived in this country as a faxed message. The conclusion upon reconsideration of the application, but before that document was seen, was set out in the letter of 29 July. It is a detailed and reasoned rejection of the claim upon the facts, tracing the history of the application from 12 May onwards. It is not necessary to go into any further details in that letter, having regard to the submissions now before the court. The document to which I have referred was not available when the matter first came before the learned judge, Rose J, and he adjourned the hearing of the application on being told that it was about to arrive. It was then put before him after 24-hour adjournment and he continued the hearing and dismissed the application on the grounds the he could not see that there was any arguable ground for holding, and therefore for letting the matter proceed, that the Secretary of State had acted unreasonably or misdirected himself. Miss Webber submits that this court should take the view that an arguable ground is made out mainly for two reasons. Reliance is placed upon the case of Gaima which emphasises the need in cases of such importance as these -- where a person claims to be in danger of death on being returned to his country of origin -- that careful scrutiny must be given to the facts by the Secretary of State and by the court to the process of reasoning and the way in which the matter has been handled by those dealing with it on behalf of the Secretary of State; and it is said that this was a matter too swiftly handled. The Secretary of State when he saw the letter replied by a letter of 31 July, which was before the judge and is now before us. He said that he was not "satisfied as to the authenticity of this document's contents, for the following reasons . . .". He then referred to discrepancies between documents previously supplied in which the brother had been called Hassan aged 27, and this referred to Ali Ibrahim Hamieh aged 34. Secondly, the document was questioned because it appeared puzzling to those considering the matter why or how a hospital authority would refer to the results of investigations into the circumstances of the death of which they were providing a certificate. The letter continued: "This is not in itself conclusive evidence that the document is false -- indeed it has clearly been provided specifically to support [the] asylum application. However, taken with the matter in subparagraph 1 [to which I have referred] . . . it [caused] the Secretary of State to conclude that the document [was] false." The letter continued, most importantly, in the following terms: "in the alternative, if a brother of Mr Mahmoud has been killed this would not change the Secretary of State's view that Mr Mahmoud would not be of specific interest to either Hizbollah or any other faction were he to be returned to the Lebanon, and maintains his refusal of asylum on the grounds that [his] reluctance to join any military group, and fear of pressure in the future to join such a group, does not amount to fear of persecution for any reason recognised under the Refugee Convention." As I have indicated, Miss Webber criticises that for two reasons: firstly, the speed with which the matter was concluded and the failure to invite the comments of the applicant upon the factual discrepancies. An affidavit is now before this court saying that the reference to the names is explained because the name, A Hassan, was a nickname given in the circumstances described in the affidavit. He was not asked to deal with the substantial discrepancy in age. As to the conclusion in the final paragraph, it was objected that it was plainly irrational and unreasonable to conclude that it did not affect the decision previously reached. For my part, giving the best consideration that I can to Miss Webber's submissions, I am unable to see any ground for granting leave to apply. The factual matters upon which further comment could usefully have been sought, the introduction to the basic reason put forward by the Secretary of State, which is, as I have read in the last paragraph of the letter, that, if it be treated as established that his brother was killed, it did not alter for the reasons there given the conclusion reached by the Secretary of State. That was a matter of assessment of the facts and of the circumstances in the country concerned. It is not a matter for this court to re-assess. I have in mind the principle state by May LJ in Gaima and in particular that the nature of the enquiry calls for the most careful scrutiny. It seems to me that this application has received such scrutiny and, applying it to the process by which the Secretary of State has reached his conclusion, I am unable to see that any arguable ground for granting leave has been made out and I would dismiss the application.

Judgment Two:

NOLAN LJ: I agree.

Judgment Three:

SCOTT LJ: I also agree.

DISPOSITION:

Application dismissed

SOLICITORS:

Aaronson & Co London SW5; Treasury Solicitor