Tchouamo v Secretary of State for the Home Department [2005] EWCA Civ 1185

Case No C5/2005/1076[2005] EWCA Civ 1185
IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE IMMIGRATION APPEAL TRIBUNAL
Venue Royal Courts of JusticeDate Wednesday, 24th August 2005
Strand
London, WC2
B E F O R E:
LORD JUSTICE LAWS
LORD JUSTICE LLOYD
Between
ROGER YONGOUE TCHOUAMOAppellant-v-
Between
SECRETARY OF STATE FOR THE HOME DEPARTMENTRespondent
(Computer-Aided Transcript of the Stenograph Notes ofSmith Bernal Wordwave Limited190 Fleet Street, London EC4A 2AGTel No: 020 7404 1400 Fax No: 020 7831 8838Official Shorthand Writers to the Court)
MR S SAYEED (instructed by Wesley Gryk) appeared for Appellant for The Respondent did not attend and was not represented
J U D G M E N T

LORD JUSTICE LAWS:

[1]This is a renewed application for permission to appeal against a determination of the Immigration Appeal Tribunal (“the IAT”) of 22nd March 2005 by which the IAT dismissed the appellant's appeal against a decision of the Adjudicator promulgated on 5th December 2003. The Adjudicator had, in her turn, dismissed the appellant's appeal brought on asylum and human rights grounds against the Secretary of State's decision to refuse his claim to enter the United Kingdom. The Secretary of State's decision letter is dated 21st January 2003. Latham LJ refused permission on consideration of the papers on 24th June 2005.[2]The appellant is a Cameroon national. He entered the United Kingdom on 15th July 2002 and claimed asylum on 28th November 2002. A significant aspect of the appellant's assault on the IAT's decision consists of the complaint that they have misreported the appellant's case on the facts. It is convenient to take the summary of his case from the Adjudicator's determination: “(13) . . . The Appellant's claim is based on his fear of persecution from the authorities in Cameroon, because of his political opinion due to his activities and membership of the Union des Forces Democratiques du Cameroun (UFDC). He is of Bamileke ethnicity and lived in Douala with his family. both his parents and a sister are deceased. He has a sister in Cameroon and a brother who has refugee status in the United Kingdom. He also has a six year old daughter with whom he has lost contact. (14) The Appellant's brother Eric had been active with the UFDC and was forced to flee Cameroon as a result of his fears of persecution in 1996. Three months later in December 1996, the Appellant's home was raided by about seven policemen and gendarmes. They interrogated the Appellant and his father as to the whereabouts of Eric. They searched the whole house thoroughly and found a UFDC leaflet. The Appellant claims he was hit with a truncheon on his back and asked to hand over the leaflets in his possession. He was taken away by the police, leaving behind his father who was extremely worried and crying. He was detained for three weeks at the gendarmerie camp at Mboppi. (15) The Appellant claims he was interrogated every day for information about leaflets and his brother, for up to thirty minutes each time, once or twice a day. He was kicked with heavy boots and beaten with truncheons on many occasions and has scars on his leg and a scar on his forehead. He was in a cell on his own without any facilities and was only fed about three to four days per week. The Appellant was released without charge after three weeks. He states he has suffered various health problems since his release. However, despite what happened, he continued with his political activities or otherwise he would have been betraying his political beliefs and convictions. He therefore continued distributing leaflets and posting flyers in Douala for the UFDC. (16) In June 1997 the Appellant along with party activists and students took part in a peaceful protest opposing violence by the authorities against university students in Douala and Yaounde. He and about fifty other protesters were arrested and accused of publicly inciting the population to riot by distributing leaflets. After a week's detention at the gendarmerie he was produced before a court for trial. The Appellant claims he was sentenced to fifteen months imprisonment as a sentence, after an unfair trial whereby he was not permitted legal representation nor to put forward his defence. His sentence was served at the Central Prison of New Bell and he was subjected to psychological and physical ill-treatment and was denied family visits. He was interrogated and tortured about three times a week for the first five to six months of his detention resulting in open wounds around his ankles and the front of his shins. Following protests by himself and other political prisoners, members of their political parties managed to visit them, but they were denied visits from family members. (17) The Appellant claims he was released in September 1998 with a warning not to take part in any political activities. On release he had wounds all over his body and was physically and emotionally drained. It took him about four months to recover. At the beginning of 1999 he resumed political activities and took part in a protest against the way in which Douala's districts were managed. There was violence in the police intervention and many people were arrested, although the Appellant managed to escape. He claims one of the policemen recognised him from when his home was raided in 1996 and tried to catch him. The Appellant claims because he had been recognised he did not return home that night in fear of being arrested. (18) The UFDC decided to help him flee Cameroon after the police went to his home looking for him. He was in hiding at the home of his friend Bruno Tchakounte. The UFDC made arrangements for him to go to Gabon at the beginning of 1999, where he lived illegally until his cousin and uncle helped him to travel to the United Kingdom in mid-July 2002. Bruno Tchakounte often travelled to Gabon as a trader and took the Appellant to the home of his friend Mr Charles, in the village of Mbitam. The Appellant claims he remained with Mr Charles until he travelled to the United Kingdom. (19) Mr Charles provided him with everything and Bruno would see him every two weeks when he came to Gabon with his work. The Appellant claims Bruno gave Mr Charles food stuffs for looking after the Appellant, which he thinks may have been given by the UFDC. The Appellant claims he never went out of the house save for one occasion to get gas for cooking when he was stopped by the police and taken to the police station. Mr Charles had to attend at the police station and pay a bribe to have him released. He was terrified of being returned to Cameroon, as he feared he would face further torture. The Appellant claims he was waiting for his uncle and cousin to help and remained with Mr Charles until they did. He states (paragraph 12 second statement), “Gabon is a neighbouring country of Cameroon and I did not feel safe there. That is the reason why I had to leave there”.[3](20) The Appellant claims he did not claim asylum on arrival as he did not know what to do when he first arrived and he was feeling unwell . . . ”[4]The Adjudicator proceeded to consider the in-country evidence relating to Cameroon and also the evidence of a Dr Frank who had examined the appellant. She set out her conclusions at some length:
“(29) Having had the opportunity to see and hear the Appellant give his evidence I make my findings as follows. I do not accept that the Appellant was a member of the UFDC and that he became a member in 1995. In his first statement at paragraph 3 he states, 'during the school vacations I used to help my parents in working on our land and also my brother Eric who sold books in the market along with a group of students who are known as sauveteurs. They were active with the UFDC'. He does not state he was involved in distributing leaflets. Further, he states in the same paragraph, 'my brother was forced to flee Cameroon as a result of his fears of persecution in 1996. Three months later my own problems began'. It is not plausible if he was as involved with the UFDC that he too would not have been targeted and he accepts that his problems began after his brother left. (30) Further, I do not find it credible that the authorities would search the Appellant's home, ill-treat him and his father regarding leaflets and his brother's whereabouts, three months after his brother left the country. The Appellant states (paragraph 4 C21) 'they interrogated both my father and me about where my brother Eric was. They said they had been looking for him for a long time'. It is not credible that they would look for him for a long time, ie, three months and not come to his home, as the first place to look for Eric after he fled. I do not therefore find that the Appellant was detained for three weeks in 1996 tortured and released without charge. (31) The Appellant claims (paragraph 6) that despite what happened to him and his three-week detention, he was determined to 'continue' with his political activities which he states were strongly held political beliefs. However, there is no evidence before me that the Appellant took part in any political activities such as distributing leaflets, since he joined the UFDC in 1995. However, I do accept that he took part in a peaceful protest in 1997 and was one of fifty people to be arrested and that he had an unfair trial and was sentenced to fifteen months imprisonment. I also accept he was subjected to torture and inhuman treatment during that detention which is corroborated by the objective evidence regarding prison conditions in Cameroon, his scars and the doctor's report. I do not accept as plausible that after that detention, which he states left him physically and emotionally drained, he once again took part in political activities in 1999, particularly given my findings that save the protest in 1997 he was not politically active. (32) I do not accept as credible, because of my findings at paragraph 29 above, that the Appellant was a member of the UFDC, that he was assisted by the UFDC to travel to Gabon and nor do I accept that Mr Charles kept him for that length of time and provided for everything. I find he lived and worked in Gabon for three and a half years trying to save money to join his brother who about the same time, ie, March 1999 was granted asylum in the United Kingdom. The Appellant's cousin's letter dated 23 September 2003 (page 58 Appellant's bundle) states, 'I was the initiator of my cousin Roger Tchouamo Yongoue's departure from Gabon to Great Britain. Please believe me Sir that it has not been easy for him nor me because he had to wait for more than three years for me to get him out of that lifeless world in which he had been exploited and subjected to forced labour'. This indicates he was working and not 'hiding' in the home of Mr Charles. Further, the medical report at page 16 and 17 states, 'it was apparent that Mr Tchouamo found understanding and answering questions appropriately difficult. I think it likely that the extent of the trauma he has suffered has produced brain injury and brain damage and his processing skills are damaged'. However, the report of David Zeitlyn dated 20 September 2003 states, 'his youth and relative lack of schooling explains most of the inconsistencies identified by the Secretary of State'. (33) The Appellant was asked in oral evidence why he decided to come to the United Kingdom. He answered, 'my cousin suggested it and my brother already in the UK and my cousin assisted me'. The Appellant's cousin states in his letter (page 58), 'I found myself obliged to fight once again by going to classes twice a week in order to be able to earn the money which would help him get to Great Britain'. However, Barbara Coll his solicitor states in her letter dated 25 November 2002 (page 56 Appellant's bundle), 'Mr Tchouamo did not realise he was coming to this country until he arrived here'. (34) The Appellant's credibility is further undermined by the fact that despite contacting his brother on arrival he did not claim asylum immediately. His brother was aware of the asylum process having claimed on arrival himself. Although I accept he was given proper advice by his solicitors to obtain further evidence, he had arrived on 15 July 2002 but not contacted solicitors until two or three weeks after his arrival (oral evidence). When asked in cross-examination why he did not claim asylum until November 2002, he replied, 'feared being deported'. However, in paragraph 13 of his second statement he says, 'I did not know what to do when I first arrived in the country, and I was feeling very unwell'. He also states in the same paragraph, 'I was terrified of being refused asylum and so i did not claim asylum until I managed to obtain evidence in support of my claim from the UFDC. My journey was arranged by my relatives. I sought asylum as soon as I thought it was safe to, ie, soon as I had managed to gather evidence in support of my case from the party'. Barbara Coll states in her statement dated 16 October 2003, that the Appellant had delayed submitting his application for asylum because of his fear he would be refused asylum if he submitted an application without submitting evidence. (35) There is no detailed information before me regarding the UFDC save that the party was founded in 1991. Considering the totality of the evidence before me, in particular the objective evidence (paragraph 23 above), and my credibility findings, I do not find the letter produced from the UFDC to be genuine. I have read the determination on the Appellant's brother's successful appeal and note it was accepted that he was extremely politically active and he had claimed asylum on arrival. On the facts as established I do not agree that the Appellant's case can be compared in any way to that of his brother. (36) Whilst accepting that the Appellant was arrested, charged and sentenced to imprisonment on one occasion for taking part in a protest and that he was severely ill-treated during that sentence, I do not find the Appellant was politically active nor that he was a member of the UFDC. I find his experience in custody combined with the fact his brother had obtained asylum status in the United Kingdom motivated the Appellant to leave Cameroon and save money until he could join his brother. The fact that the Appellant could not answer various political questions in itself would not I find have damaged his claim. However, on the totality of the evidence before me and my credibility findings, I find the Appellant's account of persecution lacks credibility and is a fabrication designed to gain access to the United Kingdom to join his brother. (37) On the evidence before me I find the Appellant is not at risk on return to Cameroon as a failed asylum seeker. Paragraph 5.35 CIPU states the law does not restrict freedom of movement within the country or an individual's right to settle in any place. The law does not restrict the individual's right to leave and re-enter the country. The Cameroonian authorities are not informed when a failed asylum seeker is returned to Cameroon and such individuals are not routinely stopped, detained and questioned. There is no legislation in Cameroon that provides for the prosecution of individuals seeking asylum abroad even if the authorities were informed of the names of every returning failed asylum seeker. Therefore I dismiss the appeal under the Refugee Convention.”
[5]The Adjudicator proceeded to dismiss the claim based on Articles 2, 3 and 8 of the European Convention on Human Rights, essentially relying on the same findings of fact.[6]The IAT granted leave to appeal to itself stating:
“It may well be necessary for the Tribunal to consider whether the Adjudicator's findings on credibility relating to his political activities can be sustained.”
[7]The IAT's jurisdiction was limited to points of law only by force of section 101 of the Nationality, Immigration and Asylum Act 2002 since the Adjudicator's determination post-dated 9th June 2003. As I have said, the IAT dismissed the appeal. They stated:
“(15) . . . Following CA [2004] EWCA 01165, per Laws LJ, unless the Adjudicator has made an arguable error of law which would have made a material difference to the outcome of the appeal, the Tribunal is debarred from reopening his findings of fact. (16) An appeal such as this, which is based on a disagreement with the Adjudicator's findings of fact, can only succeed where his factual findings are erroneous in law, that is, where they are at the level of perversity or Wednesbury unreasonableness. That is not the case here; the Adjudicator's findings on the claimant's inability to work are adequately reasoned, and [her] findings on the practical risk on return are manifestly sound and sustainable. We do not consider that the Adjudicator erred in finding that there was no risk on return. The claimant has failed to prove his case to the requisite lower standard.”
[8]Accordingly, as I have said, they dismissed the appeal.[9]Ground 1 of the grounds of appeal to this court complains that the IAT misreported the appellant's case on the facts by stating that he had remained in prison from December 1996 to September 1998. That was not his case at all, as the Adjudicator's decision shows. There is no doubt that the IAT did make this error. Ground 2 says that the IAT confused the submissions for the appellant with those of the Home Office, attributing each to the other. That error also was indeed committed by the Tribunal.[10]These points plainly do no credit to the IAT. They show that it was a sloppy decision. They do not, however, help the appellant. They do not assert, far less disclose, any arguable legal error on the Adjudicator's part.[11]The substance of the application is really in grounds 3 and 4. Ground 3 asserts that the IAT failed to engage with all the grounds put forward to assault the Adjudicator's findings on credibility. There are four heads set out in the ground:
“(a) the disbelief of the appellant's detention and torture in December 1996; (b) the disbelief of the appellant's political activity; (c) the delay in claiming asylum; (d) the genuineness of the UFDC document.”
[12]The grounds of appeal to the IAT relevant here were set out at paragraphs 5 to 17 of the document containing those grounds. It is manifest that principally the complaints made are couched in the language of irrationality. I have to say that in my view, having read and re-read the Adjudicator's determination, it contains no trace of irrationality. This is unfortunately a case in which the application to this court is an attempt to rerun the appellant's case on the merits dressed in the garb of points of law.[13]I should say that there is a point being made as to new evidence relating to the appellant's delay in claiming asylum. The IAT nowhere dealt with it. However, it is impossible to suppose that this new evidence could have altered the ultimate decision that was arrived at on the facts and, in any event, I entertain the gravest doubts as to any proper basis upon which the IAT should have received such evidence. There is, in my judgment, nothing in ground 3.[14]Ground 4 consists of a submission that the IAT's approach and assessment of the issue of risk of persecution to the appellant should he be returned discloses errors of law. Again, the question must be whether there is any such arguable error upon this issue on the Adjudicator's part. Mr Sayeed, for the appellant, pointed to paragraph 37 of the Adjudicator's decision which I have read. He submits that the Adjudicator's findings as regards risk on return are legally inadequate. They deal only with the risk of his being stopped at the border and do not address the question of whether, in the longer term, such a risk might be made out. It is of some interest to note that the Adjudicator finds in terms:
“The Cameroonian authorities are not informed when a failed asylum seeker is returned to Cameroon and such individuals are not routinely stopped, detained and questioned.”
[15]It must be a matter of speculation, to put it at its highest, whether such an individual might later run into difficulty by virtue of his earlier having unsuccessfully sought asylum. However that may be, it is helpful to notice this passage in paragraph 15 of the IAT's determination:
“This appellant attended a demonstration and suffered abuse in consequence of his attendance, but it was not a political party demonstration. There is simply no indication that the authorities would have any record of any connections between him and the UDPS political party [I interpolate that the initials are a mistake]. Furthermore, the political party in question is not the one in which the authorities are most interested at present.”
[16]If one puts these matters together, it does not seem to me that there is any arguable error of law made out in relation to risk on return. I have already said that this application is, in truth, an attempt to rerun the merits of the matter. That is not the function of this court. There is, in my judgment, no basis on which it would be right to grant permission to appeal against the IAT's decision, notwithstanding that decision's shortcomings, and for my part I would refuse permission.

LORD JUSTICE LLOYD: I agree.

Order

Permission refused. Detailed assessment of costs.