Gautam, R (on the application of) v Secretary of State for the Home Department [2003] EWHC 1160 (Admin)

Case No CO/5860/2002[2003] EWHC 1160 Admin
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
Venue Royal Courts of JusticeDate Thursday, 8 May 2003
Strand
London WC2
B E F O R E:
MR JUSTICE HOOPER
Between
THE QUEEN ON THE APPLICATION OF GOPAL GAUTAMClaimant-v-
Between
IMMIGRATION APPELLATE AUTHORITYDefendantSECRETARY OF STATE FOR THE HOME DEPARTMENTInterested Party
Computer-Aided Transcript of the Stenograph Notes ofSmith Bernal Wordwave Limited190 Fleet Street London EC4A 2AGTel No: 020 7404 1400 Fax No: 020 7831 8838(Official Shorthand Writers to the Court)
MS F WEBBER (instructed by Roelens & Co) appeared for CLAIMANTMISS J MULCAHY (instructed by the Treasury Solicitor) appeared for DEFENDANT
J U D G M E N T(As Approved by the Court)
Crown copyright©Judgment
[1]MR JUSTICE HOOPER: The claimant, a Nepalese national, challenges the decision of Mr Suchak, an Adjudicator, dated 27/09/2002 dismissing the claimant's appeals against the refusal by the Secretary of State of the claimant's application for asylum and his application that removal to Nepal would be a breach of this country's obligations under the ECHR. The Adjudicator also upheld the Secretary of State's certificate.[2]The claimant, on his account, arrived in the United Kingdom at about 7 o'clock in the morning on the 28th February 2002. The Agent, according to the claimant, spoke to the immigration officer and the claimant entered the UK. The agent then gave the claimant an agenda with the telephone numbers of people who could help the claimant and who would explain to the claimant how to claim asylum. The claimant said that he phoned one of them, who asked him to take a train to Kings Cross where he would be met. That person met him and at the time of making the claim for asylum was supporting the claimant with board and lodging.[3]On the 2nd March, 2 days later, immigration officers came to the flat of the claimant's friend because many Nepalese people were living at that address. The claimant and others were arrested. At the police station, according to the claimant, he told the police that he was in the United Kingdom to claim asylum. Thereafter he completed the necessary forms. (See page 32 of the bundle)[4]The claimant said that he had arrived in this country on a false passport in a different name and that his brother-in-law, a businessman, had given him a sum of some £5,000 to finance the journey (page 43). According to the Adjudicator he had obtained the passport about a year earlier "for no particular reason". The Adjudicator placed no reliance on that.[5]The basis of the claim made by the claimant was that he was a member of the Maoist party. In his statement prepared in March 2002, the claimant wrote:
"I fled my country by fear of persecution by the Nepalese government. I was an active member of the Maoist political party (the exact name is: Nepal Communist Party - Mabobadi) in Nepal, since the beginning of March 1999 . . . the date I first joined the party. The actual government and the police in Nepal are committing injustices towards the Nepalese nationals. I was dealing with administration work and organising meetings."
In his interview he described himself as a general worker in the party (page 35).[6]The claimant described a meeting in a schoolyard with all the Maoist party members (page 30). He said in his interview that he was at the front working as a volunteer. He described the meeting being interrupted by 10 to 15 armed police officers who arrested several people who were assisting at the meeting including the claimant himself. He said that he was taken to the capital of the district with five other members:
"We were each detained in a different cell. I was given a bit of food once a day and no sanitary facilities were available. During detention, I was asked many questions relating to the Maoist party and its related fighter group. As I was just a general member of the party, I did not have any idea and therefore did not have anything to tell them. They were trying to make me talk anyway, by beating me up on several occasions with sticks and with their boots whilst I was hanging by my feet. I was treated like an animal."
[7]A few days later he had been released, so he thought, because the police could not prove that he was an active member of the Maoist party, other than that he was present at the meeting. When asked in interview why he had not been killed during these few days in detention he replied:
"Because when I was arrested initially I did not admit anything about been involved in Maoists. They could not find any evidence to prove otherwise."
[8]He was released with a warning that he was not to get involved with the Maoist party anymore. He was told that if the police found out that he was still a Maoist member, his life would be in danger (pages 30 to 31). In his March statement he stated that he had ignored the warning. He was asked what he was doing during this period and he said "adverts, pamphleting, wall painting" (page 40).[9]The claimant was seen by a Dr Shehadah, a primary care consultant for 9 years with experience of assessing and treating depressed and stressed patients. He provided an expert report for the Adjudicator. The claimant told Dr Shehadah that, during the period in custody, he had been interrogated daily, beaten on the soles of his feet and suspended from the ceiling by his feet.[10]In a statement dated 4th September 2002, the claimant said that he had, upon release, immediately resumed his Maoist activities. "I was so angry at the way I had been treated, the torture I had received that I wanted to do as much for the Maoists as I could, as long as I was not caught by the police again." (Page 42) During the course of giving evidence he was asked if he had taken part in any Maoist party activities. Although it is not clear, it appears that the answer he gave to that question related to the few days after he had been released and before his home was searched. According to the Adjudicator "he stated that he advised people against drinking alcohol and gambling". He also said in evidence, so the Adjudicator wrote, that he had not taken part in the distribution of leaflets. In his September statement he had written that he had been delivering pamphlets during this period in a village called Birkhani. As to the alcohol and gambling, the Adjudicator wrote: "He could not explain how these related to the activities of the Maoist party - he merely stated that these activities were against the principles of the Maoist party." (Paragraph 12 of the determination)[11]He went on to describe what then happened a few days after his release: " . . . about 5 or 6 policemen visited my house searching for me, but I was not there at the time. I was staying with some friends at the time. They asked my parents where I was and they answered that they did not know. They searched my bedroom and took my identity card, my birth certificate, my passport and my school certificate before leaving. 4 days later, when I returned to my house, my parents told me that the police came in looking for me. They advised me to leave the country as my situation was getting serious because the police were searching for me now." (Page 31)[12]He said that he understood that some anti-Maoists in the village had denounced him to the police telling them he was still an active member of the Maoist party (pages 31 to 32, page 40 and page 42).[13]During the course of evidence to the Adjudicator he added to the list of documents found in his home by the police "some pamphlets relating to the Maoist party". In the words of the Adjudicator "he could not explain why he had made no mention of these pamphlets earlier". (Paragraphs 12 and 22).[14]He had, so he said, subsequently gone into hiding and eventually made his way to this country.[15]The Adjudicator concluded that he did not find the claimant's evidence to be credible. He decided he could place no reliance on the claimant's evidence that he was a member of the Maoist party and no reliance upon the evidence that the claimant was arrested and detained as he had described. It is that finding which Miss Webber challenges in these proceedings. I shall now examine the reasons given by the Adjudicator for his challenged finding.[16]The Adjudicator relied upon what he describes as the claimant embellishing his account by stating that there were leaflets at his home when the police came to arrest him (see also paragraph 26). Miss Webber does not criticise that finding.[17]The Adjudicator also placed some weight, although not much, on the claimant's failure to claim asylum on arrival. In his September statement the claimant had said that he had not claimed asylum immediately on arrival in the United Kingdom because he did not know that it was possible to claim at the port. I have already set out the advice given to him, so he says, by the Agent. The Adjudicator found that the delay in claiming asylum together with the embellishment did damage the claimant's credibility. The Adjudicator went on:
"It is pertinent to note that the Appellant only applied for asylum when there was a raid in the house where he was living and it is difficult to accept his claim that he did not know how to apply for asylum when he arrived here."
Miss Webber criticises that comment. She points out that the objective evidence supports the proposition that many of those who arrive in this country claiming asylum are ignorant of the proper procedures. Although I see some force in the argument made on this point by Miss Webber, it is not a decisive matter.[18]The Adjudicator also referred to the absence of any documentary evidence of membership of the Maoist party and continued:
"I found the Appellant's account to be extremely vague leading me to doubt that he is a Maoist as claimed."
He went on to say that, if he accepted the Appellant's evidence of membership of the Maoist party, his involvement was at a very low level - distributing leaflets, writing slogans etc. The Adjudicator then questioned the Appellant's account that he was arrested and detained, particularly when there was no evidence that the group leaders were arrested.[19]I turn to paragraph 27 which formed the centrepiece of the attack by Miss Webber on the Adjudicator's decision. In the first sentence, he wrote:
"I have considerable difficulty in believing the Appellant's evidence of arrest and detention as claimed"
. In the second sentence he wrote:
"If the Authorities were interested in the Appellant, then I do not see why he was released."
Miss Mulcahy, who appeared for the Secretary of State, as the interested party, was not able to cast light on that sentence. On the face of it the Adjudicator appears to be doubting the claimant's account of having been arrested because he was released. That would obviously not be a rational justification for doubting the evidence of the arrest and detention.[20]In the third sentence the Adjudicator wrote:
"If they were interested in pursing him some few days after he stated he was released then there does not seem to be any logical reason why they should not wait for him to return home. The Appellant did not claim to be in hiding during the time that he was released."
I agree with Miss Webber that it is not rational to conclude that the claimant had not been arrested because the police had not, on his account, waited until he had returned home (some 4 days later).[21]In the final three sentences of paragraph 27, the Adjudicator wrote:
"His explanation that he carried out Maoist party activities during the 5 day period is in my view quite bizarre, i.e. advising people against drinking alcohol and gambling. I really do not see on what basis I am expected to believe the Appellant that these were the principles of the Maoist party. There does not appear to be any connection."
The Adjudicator had earlier stated that the claimant: "Could not explain how these related to the activities of the Maoist - he merely stated these activities were against the principles of the Maoist party." (Paragraph 12)[22]Miss Webber submits that evidence, which is available to me but was not available to the Adjudicator, shows that the Maoist party does have a policy about alcohol. Michael Hutt, an authority on the political situation in Nepal, wrote a letter to the claimant's solicitors (undated but in reply to a letter of 8 November after the Adjudicator's determination) which included the following passage (page 52):
"The Maoist success has been derived in large measure from the way in which they have capitalised on the huge social inequalities that exists between castes, regions, ethnic groups and genders. In this connection, a campaign against the sale and consumption of alcohol in regions where the Maoists have influence certainly has been part of their agenda. This picks up on the grievances expressed by women's groups in rural areas, where alcohol abuse by their men folk and consequent maltreatment of wives and daughters has become a burning issue."
[23]Further support for the stance of the Maoist party on alcohol may be found in a report from Amnesty published in April 2002, in which it is stated (page 86) that strict control is exercised over antisocial behaviour including alcohol consumption. Miss Webber invited me to have regard to that evidence. The normal rule is that this court will only look at the evidence available to the Adjudicator. In this case the claimant appears to have mentioned the issue of alcohol and gambling only during the course of evidence. The Amnesty Report could have been put before the Adjudicator, although it was not. That and the Hutt letter only became of particular relevance after the claimant had mentioned alcohol. I take the view that there are here exceptional circumstances entitling this Court to look at fresh evidence. That evidence would, I presume, have been available if the matter had proceeded to the IAT.[24]Miss Webber also submits that a low level worker in the Maoist party such as the claimant might well not know the reasons for advising people against alcohol and gambling. Miss Mulcahy submits that whether the claimant could have been expected to know the reasons, is a matter for the Adjudicator.[25]Looking at the issue now, and relying in part upon the fresh evidence, it seems to me that it is not right to describe this evidence as "quite bizarre".[26]In paragraph 28 the Adjudicator places some weight on what he describes as the claimant's denial that he had been in touch with his family. It is not clear how the Adjudicator had reached the conclusion that he had denied this. In paragraph 16 the Adjudicator wrote that the claimant had written to his wife, but had not received any reply. By itself this could not be decisive of this case.[27]I now turn to the medical report. In his summary Dr Shehadeh wrote:
"Mr Guatam . . . was detained and tortured for 3 nights and 4 days, due to his membership of the Maoist party. He was released with a warning that his life would be danger if he continued his political activities. Due to his ongoing political activities, policemen sought after him. Fearing for his life he fled the country. His examination revealed evidence of depression, anxiety and post traumatic stress disorder."
He had earlier described the depression as mild.[28]The doctor concluded:
"His detention and torture as well as the fear of being caught by the police are responsible for his post traumatic stress disorder. His history in examination confirms his diagnosis." (Page 21) Miss Mulcahy agreed that the last sentence means: "his history and examination confirm the diagnosis."
[29]Miss Webber submits that this conclusion had to be taken into account by the Adjudicator in deciding whether or not he accepted the claimant's account of the detention and torture. This conclusion, so she says, supported the claimant's evidence. Miss Mulcahy submitted that the Adjudicator dealt with this report properly in paragraph 29:
"I should state for the sake of completeness that I have read the medical report, although neither representative addressed me on this [there is a dispute about that] and there is no reference to this in the skeleton argument submitted by Miss Rowley-Fox."
[30]The skeleton argument was produced at my request during the hearing. It is clear that, in the third paragraph, counsel for the claimant did rely upon the report.[31]The Adjudicator continued:
"The report states that the examination revealed evidence of depression, anxiety and PTSD."
The Adjudicator then went on to deal with the treatment needed and the availability of that treatment in Nepal. It is not clear from the determination whether the Adjudicator realised the potential importance of the passage cited in paragraph 28 above from the report.[32]Contrary to Miss Mulcahy's submissions, it is my view that the Adjudicator did not deal with the report properly. There may be cases where the evidence that a person has been tortured is so completely discredited that a psychiatric report based on his or her account of having been tortured can be summarily dismissed. In my judgment that is not one of these cases. The Adjudicator had to weigh in the balance, when considering the claimant's credibility, the fact that, according to the expert, the post-traumatic stress disorder from which the claimant was suffering was caused by the torture, detention and fear of the police. The conclusion by the Adjudicator that he could not believe the account of detention and torture was in large measure based upon the reasons set out in paragraph 27. I very much doubt whether the reasons given in paragraph 27 provide a rational basis to reach an adverse finding on the issue of detention and torture. I find further support for this conclusion in the new evidence. What seems quite clear to me is that the reasons given in paragraph 27 provide no basis for a summary dismissal of the conclusions of the doctor.[33]For these reasons I quash the decision of the Adjudicator and remit the matter back to be considered by another Adjudicator.