R v. Immigration Appeal Tribunal, Ex parte Bernardo Bolanos

IN THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

1st February 1999

Before:

MR. JUSTICE MOSES

REGINA - v - IMMIGRATION APPEAL TRIBUNAL EX PARTE BERNARDO BOLANOS

MR. E. WAHEED (instructed by Messrs Aaronson & Co., London, SW5) appeared on behalf of the Applicants.

MR R TAM (instructed by the Treasury Solicitor) appeared on behalf of the Respondent.

JUDGMENT

MR. JUSTICE MOSES:

These applicants bring their application for judicial review with leave against the decision of the Immigration Appeal Tribunal. The Immigration Appeal Tribunal refused leave to appeal from the determination of a special adjudicator.

The applicants were born in 1946 and 1944. They claimed asylum at port on arrival in the United Kingdom on 29th October 1995. More precisely, the first named applicant, Bernardo Valencio Bolanos, made the claim, and it is accepted that the second named applicant's claim depends upon the success of the first. The special adjudicator found that their claim for asylum was unfounded.

Their claim for asylum depended upon Article 1A(2) of the Geneva Convention; in other words, establishing that they had a well - founded fear of being persecuted by reason of membership of a particular social group.

The applicant, Bernardo Bolanos, had set up a garage business with his nephew sometime between 1993 and 1994 in Colombia. The nephew was apparently the target of an assassination group, and by mistake, tragically, that group killed his son in August 1995. His son was called Fernando. The applicant, Bernardo Bolanos, subsequently heard of the death of the nephew in Colombia in September 1995. The applicant alleged that the assassination was the result of the conduct of the police, and occurred with the collusion of the state. After the applicant, Bernardo Bolanos, had reported that matter to the police, his wife was the subject matter herself of an attack. The special adjudicator found that there was no evidence that this was anything other than the result of criminal activity in which the nephew was engaged, and found that there was no state collusion. In those circumstances, and having considered the claim of persecution by reason of membership of the same family as the nephew, he found that there was no ground for concluding that these applicants were the subject of persecution within the meaning of Article 1A(2).

The first ground which has been advanced by Mr. Waheed on behalf of both these applicants is that the special adjudicator failed to apply the appropriate standard of proof. He failed to consider, as he should have done, whether there was a reasonable degree of likelihood that the applicants had a well - founded fear of being persecuted by reason of membership of a particular social group. In support of that submission, he pointed to passages in the special adjudicator's decision, in which it is apparent that the special adjudicator accepted that there was often very little distinction between the authorities and criminals in Colombia, demonstrating the lawlessness of that country. At page 73 he said:

"I accept both the US report and Amnesty International reports as objective and well balanced and am fully satisfied that Colombia is almost lawless as clearly there is often no distinction between the authorities and the criminals, and very often they work hand - in - hand. It is within this background that I have to assess the appellant's claim."

He concluded, as far as the evidence which had been advanced by the two applicants was concerned, that there was no evidence that the perpetrators of the son's killing were the police. He concluded at page 76 that the killing of the nephew was not with the collusion of the state. He said:

"The appellant argued that the state colluded with the criminals and there is clear evidence in the background documentation that this is the case. However, I have no evidence before me in this case and I surely cannot accept that the state authorities are adversely involved in every criminal act that is perpetrated in Colombia."

He did accept that both the son and the nephew had been killed in criminal circumstances, but the details of the story, which I need not amplify, led him to conclude that the appellant, who worked with the nephew and his wife, knew more about the background to the nephew's criminal activities than he said. He said that it is likely that they were aware that Harold (that is the nephew) was involved in criminal activity.

It is said that that passage demonstrates that the special adjudicator applied the wrong standard of proof and was applying a burden which imposed the task upon the applicants of showing that it was more likely than not that they were being persecuted for a Convention reason. True it is that in many cases there is likely to be little difference between a conclusion based upon the balance of probability and a conclusion based upon whether there is a reasonable degree of likelihood, but there is a distinction and it may be important. The standard of proof in cases such as these, bearing in mind the dreadful results which may occur should an erroneous decision be made, is lower; it is whether there was a reasonable degree of likelihood. I am unable to find any erroneous approach in the passages to which Mr. Waheed drew my attention. It is plain to me, reading the decision as a whole, as one must, that the adjudicator was saying that, notwithstanding the clear evidence of what generally happens and has happened in Colombia, he did not find that there was a reasonable degree of likelihood that there had been collusion between state and police in this case. All he was saying was that there was no evidence of the state colluding with the criminals who had killed the nephew and the son in the particular case before him, and that was the conclusion which was reached in the light of the view, which was clearly a commonsense view, that it could not be said, because of the background evidence, that every criminal act was one in which the state authorities were involved. It would depend, notwithstanding that background, upon the facts of any particular case.

The next argument advanced by Mr. Waheed was related to the circumstances of the killing of the nephew. It was argued by Mr. Tam, on behalf of the Secretary of State, that it was necessary that it should be shown at the outset that the victim of this attack, had he lived, might himself have been the victim of persecution for a Convention reason. Were it not so, it would mean that, if that victim had lived, he would not be able to claim refugee status, but his family might. It was in that context that Mr. Waheed argued that the special adjudicator failed adequately to deal with the issue as to whether the nephew had been killed by reason of acts of the state. Certainly, it had been raised in the argument before the special adjudicator. It was said that the circumstances of the killing of the nephew bore the hallmarks of persecution for political aims, and that he and the applicant, Bernardo Bolanos, had been perceived as political opponents of the authorities, namely the police. The ground of appeal before the Immigration Appeal Tribunal specifically referred to that feature at paragraph 5. The special adjudicator did not specifically consider that argument in his decision, but, as I have said, the decision must be read as a whole. It is clear from his findings that there was no evidence of state collusion, and his conclusion was that the nephew had been killed by reason of criminal activity. But he did not believe that there was a reasonable degree of likelihood that the state had colluded in that. That conclusion seems to me clearly to reject the contention that the nephew had been killed for a political reason.

I stress this aspect of the case because it seems to me that the success of the applicants' claim of a well - founded fear of being persecuted for reasons of membership of a particular social group in the circumstances of this case must, at least in part, depend upon establishing that the killings were either carried out by the state for a Convention reason, in other words, because of persecution by reason of political opinions, or at least by others, with the collusion of the state. It would, in my judgment, be difficult, if not impossible, to demonstrate that there was a well - founded fear of persecution by reason of membership of a particular social group, when that fear depended upon activities at least initially directed against somebody else, if those activities directed against that other person could not be said to be politically motivated or based upon any race, religion or nationality or membership of a particular social group.

It was in that connection that Thorpe L.J. in Quijano v Secretary of State for the Home Department [1997] Imm AR 227, 232, pointed out that it would be difficult for someone relying upon that particular part of Article 1A of the Convention to succeed without demonstrating that the agent of persecution was the state. That case exposes a further difficulty for this applicant. The case is authority for the proposition that, where an asylum seeker is seeking protection on the grounds of fear of persecution by reason of membership of a particular social group, that asylum seeker must demonstrate, not only that he is a member of a particular social group within the meaning of the Convention, but also that his fear is by reason of membership of that particular social group. In other words, he must establish not only membership but a causative link between that membership and his fear.

Although they reached the same conclusion by different routes, the Court of Appeal decided in that case that, where an asylum seeker relied upon membership of a family to establish a particular social group, it was necessary to demonstrate that the persecution was by reason of membership of that particular social group and did not merely depend upon a link (that could be a familial link) with someone who had been the subject matter of the attack, even if the state had colluded in that attack upon him. In that case a step - father had been the subject of violence by reason of a drugs cartel in Colombia after he had refused to trade with them. His relations had sought asylum in this case, fearing that they too would be the subject of attack from that drugs cartel. It is of note that the case did not deal with the question whether the attack by the cartel was an attack in which the state had colluded. I was told at the bar that, for the purposes of the decision, it was necessary to assume that that had been the case, since the special adjudicator's decision on that point was the subject matter of at least an arguably well - founded challenge. The case establishes that, even if the state colludes in an attack on a person with whom persons have a family relationship, it could not be said that their fear was by reason of their membership of the family where the attack was not itself by reason of the fact that they were all members of the same family. The link depended upon the fear that arose out of the criminal punitive action taken against their stepfather. As Thorpe L.J. put it:

"Second I conclude that the persecution arises not because the appellant is a member of the Martinez family but because of his stepfather's no doubt laudable refusal to do business with the cartel. The persecution has that plain origin and the cartel's subsequent decision to take punitive action against an individual related by marriage is fortuitous and incidental as would have been a decision to take punitive action against the stepfather's partners and their employees had the business been of that dimension."

True it is that Thorpe L.J. took the view that mere family membership would not come within the Convention because it was necessary to identify a social group of the necessary civil or political status. That issue is the subject matter of an appeal in another case. I need not consider it further. But the second aspect, which I have cited in full, was the subject of agreement by both Morritt L.J. and Roch L.J. Morritt L.J. said:

"But the fear of each member of the group is not derived from or a consequence of their relationship with each other or their membership of the group but because of their relationship, actual or as perceived by the drugs cartel, with the stepfather of the appellant. The stepfather was not persecuted for any Convention reason so that their individual relationship with him cannot cause a fear of a Convention reason either. In short the assumed fear of the appellant is not caused by his membership of a particular social group."

Roch L.J. said:

"A family is a social group. For the family to become 'a particular social group' within the meaning of the Convention, it must, in my judgment, be a family which is being persecuted or likely to be persecuted because it is that family."

He refers to the Bourbon family in France during the time of the French Revolution as a useful example.

In my judgment, the decision in Quijano disposes of this case. Even if Mr. Waheed had been correct in his challenge to the decision of the special adjudicator in concluding that there was no state collusion, he could not have succeeded in this case. The fear of the applicants in this case was the result of the action taken against the nephew and, possibly by a terrible accident, against their son. The fear was not a consequence of their relationship, husband and wife with each other, or their membership of the Bolanos family, but was as a result of their relationship to someone who had been attacked by the criminals who killed their nephew. In other words, their fear resulted because of their link with their nephew, and not because of their relationship with each other. As Mr. Waheed pointed out, the Bolanos family is entitled to as much, if not more, protection, and certainly sympathy, than those who in the past would have been considered of regal status. I agree with his sentiments entirely, but his difficulty lies in the essential feature of the Convention, namely that, just as one must demonstrate in order to successfully claim as a refugee a well founded fear of persecution by reason of race, so one must establish a reasonable degree of likelihood of a well - founded fear of being persecuted by reason of being a member of the Bolanos family. This unfortunately the applicants cannot do. Their fear arises because of the criminal attack upon their nephew, and not because they are members of the Bolanos family. Thus, even if there had been state collusion in the attack upon the nephew, this application would have failed. It is that third ground which finally disposes of this application. I refuse the relief sought.

MR. TAM:

I am grateful. May I mention one point for the transcript. You referred to Thorpe L.J.'s view on status being the subject of appeal. Might I ask you to include in that that it is the subject of appeal in a different case.

MR. JUSTICE MOSES:

Yes. It is right. That point is live, as it were.

MR. TAM:

I would ask you to dismiss the application. I would make an application for my costs. The form of that application will depend on what my learned friend says about legal aid.

MR. WAHEED:

The applicants are legally aided in this matter. Leave was granted before Dyson J.

MR. JUSTICE MOSES:

What is the new form?

MR. TAM:

It is that the applicant do pay the Secretary of State's costs, the assessment of which is to be postponed indefinitely.

MR. JUSTICE MOSES:

You need legal aid taxation. If you wanted to appeal you would need leave.

MR. WAHEED:

Might I ask for leave to appeal?

MR. JUSTICE MOSES:

Certainly. I refuse leave. You must ask the Court of Appeal. I think you have to mention it.