C, R (on the application of) v Immigration Appeal Tribunal [2003] EWHC 883 (Admin)

Case No CO/4875/2002[2003] EWHC 883 Admin
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
Venue Royal Courts of JusticeDate Wednesday, 9 April 2003
Strand
London WC2
B E F O R E:
MR JUSTICE HOOPER
Between
THE QUEEN ON THE APPLICATION OF CClaimant-v-
Between
IMMIGRATION APPEAL TRIBUNALDefendant
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)
MR A DURANCE (instructed by Switalskis, West Yorkshire WF1 2TF) appeared for CLAIMANTMISS J COLLIER (instructed by Treasury Solicitor, London SW1H 9JS) appeared for DEFENDANT
J U D G M E N T(As Approved by the Court)
Crown copyright©Judgment
[1]MR JUSTICE HOOPER: This is an application for judicial review of the decision of the Immigration appeal Tribunal to refuse the claimant leave to appeal. The application for permission was refused on paper. It was subsequently granted following an oral hearing by Gibbs J who did not limit the grounds upon which the challenge could be made.[2]The claimant is a citizen of Moldova aged 22 at the time of the relevant incidents in Moldova, and aged 23 at the time of the hearing before the Adjudicator, Mrs Katherine Gordon. The claimant entered the United Kingdom clandestinely on 25 July 2001 and claimed asylum on the next day. She had left Moldova on 18 July and travelled from Moldova to Romania by bus and then to the United Kingdom in a lorry.[3]The claimant is a qualified general nurse and had worked as such in the capital city, Chisinau. The events which formed the basis of her claim that her removal would be contrary to the United Kingdom's obligations under the Refugee Convention and under Article 3 of the ECHR, were based on events which had occurred after she had moved to the village of Carpineni, the home of her family. It was the claimant's case, which was accepted by the Adjudicator, that on 3 July 2001 she had been raped and sodomised by four men. They had forced her into a car and taken her away to a forest where the attack, which had lasted for some six to seven hours, had occurred. She had escaped when, on the way back from the forest, the car had stopped at a petrol station.[4]Notwithstanding the acceptance of this part of her account, the Adjudicator did not find the claimant to be a credible witness. She found her claim inconsistent in a number of important respects. She pointed out that the underlying emphasis for her claim for asylum had changed significantly (see paragraph 22).[5]The Adjudicator laid particular emphasis on the fact that in her statement of 6 August 2001, which had been prepared with the help of her solicitors, she had said that she did not recognise her attackers at all. However at the hearing on 24 June 2002, she had said that she did recognise one of her attackers as a policeman. In paragraph 25, for reasons set out in paragraphs 22 to 24, the Adjudicator did not accept the claimant's evidence that a policeman was involved in her attack. That finding is not and could not be challenged by way of judicial review.[6]In so far as the change of emphasis of the appellant's claims is concerned, the Adjudicator pointed out that in the statement of 6 August 2001, and in an interview of 18 September 2001, the claimant had asserted that the attack on her was motivated by her connections to the Subotnic faith. She said that the attackers threatened to kill her as they had killed her father. That ground was effectively abandoned. In her closing speech, the advocate appearing for the claimant "confirmed that the appellant was not seeking asylum on the ground that she had a well-founded fear of persecution on account of her religious convictions or associations" (paragraph 26). The Adjudicator went on to make a finding that she did not accept that the attack on the appellant was motivated by her religious connections. The Adjudicator said that there was no real evidence that the rapists or anyone else had killed her father or attacked or injured him. The Adjudicator, having found that no policeman was involved, also found that the claimant had not recognised any of her attackers (paragraph 31).[7]Having abandoned the claim so far as it was based on religious convictions or associations, the advocate put the claim in the following way:
"Her fear was on account of her membership of a social group, namely women in Moldova who are forced into prostitution against their will."
It is that alleged fear which forms the basis of the grounds of challenge argued before me. The same alleged fear formed the basis of her Article 3 claim. It was accepted by Mr Durance, that the fear to which her claim related must be a fear of being kidnapped, taken to another country, forced to be a prostitute and then being very vulnerable to being brutalised by those who kidnapped her or those to whom the kidnappers might sell her. It also became clear during the course of argument that the fear was not related to criminal gangs in general, but to the gang of four persons who had raped her in the forest.[8]It became clear during the hearing that it mattered not whether one approached the issue as an asylum issue or an Article 3 issue. It was not necessary to decide whether any fear she had was on account of a social group because if the fear of kidnapping for prostitution was well-founded, then treatment of that kind would fall within Article 3. Thus the Adjudicator had to decide whether the claimant had shown there was a real risk that upon being returned to Moldova, the gang which had attacked her on 3 July would kidnap her for prostitution. If she did show such a risk then the Adjudicator would have to consider the existence of or adequacy of any protection she might receive from the authorities in Moldova against the activities of the gang. In deciding these two issue, the events of 3 to 18 July were obviously highly relevant.[9]In her statement of 6 August 2001, she stated that the sexual violence in the forest was accompanied by threats of violence and actual violence leading to several cuts on her legs and chest. She said that she was told that they would kill her in the same way as they had killed her father.[10]In paragraph 9 she went on to say that the men put her back into the car and told her repeatedly that they would kill her. The paragraph reads on:
"One of the men received a phone call on his mobile phone and I heard him say, 'We've got a client for Turkey'. At this time I was seated in the middle of the back seat of the car between two of the men, one of whom told me not to worry and that I would make money in Turkey."
Paragraph 10 reads:
"The men intended to take me to Bender and I was told that I would be shipped to Turkey to work, presumably as a prostitute. On route we stopped at a petrol station and I jumped from the car. I started screaming, 'police, police' and the men got into their car and drove away."
[11]In paragraph 13 she said she was warned by the men that they would find her wherever she ran to even if she ran after her brothers to the United Kingdom. At the time of making the statement she was living with her brothers here in the United Kingdom. She stated that she was "afraid to stay anywhere else".[12]In her interview she said that she had got out of the car at the petrol station and:
"When I was on the road near the petrol station when they were coming to try and grab me, they were on a mobile phone and I heard them saying that they had got somebody for prostitution in Turkey."
She went on to say that if she had not managed to get away then she was sure that they would have killed her.[13]There is perhaps some inconsistency with a fear of being kidnapped for prostitution and a fear that she was then and there going to be killed for the reasons stated. The Adjudicator did not however rely on this point and I shall ignore it.[14]She went on to say that the people who had attacked her telephoned her threatening that she would have problems if she went to the police. There had been no explicit reference to any such phone calls in the statement. At the conclusion of the interview, the representative from the solicitors said:
"My understanding is that the men who were involved in this situation were involved in trafficking women and they may take her to another country."
[15]In her later statement dated 12 December 2001, which was her response to the Reasons for Refusal letter, the claimant wrote:
"I was abducted, gang raped, sodomised, penetrated with a screwdriver causing serious internal injury, and finally driven away from the scene with the aim of transporting me to Turkey to work as an enslaved prostitute."
She stated also that she continued to receive threatening calls from her kidnappers whilst in the village. In paragraph 11 she said that she was threatened that they would find her wherever she went. In the skeleton argument prepared for the Adjudicator, the advocate wrote:
"She feared persecution for reasons associated with her membership of a social group, namely as a woman identified and abused for the purposes of illegal trafficking and prostitution."
[16]Before the Adjudicator there was background material, and in particular, a report prepared by the Minnesota Advocates for Human Rights. The report is concerned with "trafficking in women" in Moldova and Ukraine. The thrust of the report is that women are deceived into taking jobs in other countries only to find that they are forced into prostitution. The report also speaks of people who because of economic circumstances accept offers to become prostitutes abroad. There are three references in the report to kidnapping. In the summary of the findings, it is written (page 90):
"Still others are kidnapped and taken to other countries without ever consenting to travel."
[17]In the destination countries the report states that they are forced to be prostitutes and are at risk of being beaten, raped and sometimes killed. In the latter part of the report it states (page 99):
"Some women are deceived, coerced, drugged or kidnapped before being trafficked for sex purposes."
There is a further reference to the fact that some trafficking victims are forced into prostitution through kidnapping. That reference is followed by an account of such events occurring to a young woman from the Ukraine (page 108). The Adjudicator accepted that trafficking women for prostitution overseas is an endemic problem in Moldova and the authorities, while they may have the intention to prevent it, are not very effective at doing so (paragraph 28). I note that whereas the report makes it clear that trafficking women for prostitution overseas is endemic, it does not put a figure on the number of people who are kidnapped. The report certainly suggests to me that most women find themselves forced to work as prostitutes abroad either because they have been deceived into going abroad for other employment, or alternatively because they have accepted to become prostitutes as a result of their economic situation and thereafter once abroad are treated brutally.[18]The Adjudicator concluded the claimant was, in her view, no different from any other woman in Moldova (paragraph 28). "She was not targeted for reasons of religious conviction or connection and is unlikely to be so targeted in the future. She was the victim of a crime but there was no state complicity in that crime. There is no reason to believe that the perpetrators of the crime would seek her out if she returned to Moldova. They did not do so for the time she remained in Moldova following the attack and was enquiring into the police investigations. The appellant lived for a time in Chisinau without any difficulties. There is nothing to suggest that she would have a problem if she were returned there."[19]Mr Durance accepted that he could not succeed in his challenge if the conclusion that there was no reason to believe that the perpetrators of the crime would seek her out if she returned to Moldova, was a conclusion which the Adjudicator was entitled to reach.[20]The Adjudicator based that conclusion, as one can see in the following paragraph, on the fact that they did not seek her out during the period when she remained in the same village between 3 July and 18 July 2001. In her statement she had written at paragraph 11:
"From the beginning of the attack to the time the police arrived was about 7 hours. The police attended and they took me to a doctor. A full medical examination established that I had been raped and buggered. I was given prescription for emergency contraception and various swabs and blood tests were taken from me for analysis."
In her interview she said:
"After I went to the hospital I went to the police station. I stayed there about half a day. First of all a policeman came. I told him my story. Then another policeman came and I told him exactly the same again. They said they would see what could be done. Afterwards I went back to see what had been done, they said they had no witnesses, no evidence and there was nothing more they could do. Then I went again after about four or five days and they still said that they had not been able to find anything out, they didn't know who it was."
[21]In paragraph 6 of the statement dated 12 December, she said that the police were very supportive of her in her plight but unable to apprehend those who had done it. She refers to the sympathetic way in which she was treated. She also refers to the fact that she was cared for by the police, taken to the doctor, and care and compassion shown to her.[22]In the statement of 12 December she wrote:
"After I was attacked I went to the police but I still continued to receive threatening phone calls from my kidnappers. I reported these calls to the police but no satisfactory investigation was ever undertaken."
[23]Mr Durance submits that given the background evidence showing that women are kidnapped for prostitution, and given the ongoing telephonic threats during the period, the conclusion reached by the Adjudicator that the perpetrators of the crime would not seek her out if she returned to Moldova was irrational. He further relies upon a failure by the Adjudicator to make any findings of fact about what the claimant said she was told or overheard about being taken to Turkey and about the telephonic threats. The Adjudicator, given her adverse credibility finding and given the way that the account changed, might well have refused to accept the claimant's account in so far as it related to kidnapping for prostitution. However the Adjudicator did not do so and I must proceed on the assumption that the Adjudicator accepted the claimant's evidence in this regard.[24]In my judgment, Miss Collier is right when she says that the Adjudicator was entitled to reach this challenged conclusion. The claimant remained living in this small village for just over two weeks, and if the group was minded to kidnap her for prostitution, there was some 14 days in which they could have done that. In my judgment, the decision of the Immigration Appeal Tribunal that the Adjudicator's conclusions on this point were fully justified is one which the Immigration Appeal Tribunal was entitled to reach.[25]If I am wrong I would also refuse a further challenge to the decision of the IAT relating to the sufficiency of protection. Auld LJ said in R(on the application of Dhima) vIAT [2002] EWHC 80 (Admin), [2002] INLR 243 at paragraph 35:
" . . . what is critical is a combination of willingness and an ability to provide protection to the level that can reasonably be expected to meet and overcome the real risk of harm from non-state agents. What is reasonable protection in any case, depends therefore, on the level of the risk, without that protection, for which it has to provide."
[26]The Adjudicator found as a fact that the police made such investigations into the attack as were open to them in the circumstances of having no witnesses and no other evidence of the attack other than the evidence of the claimant who was unable to identify her attackers. There was, she found, no reason to believe that the police or any other state agency was in any way complicit in or supportive of the attack. She accepted the respondent's submission that the rape was not part of a sustained pattern or campaign of persecution knowingly tolerated by the authorities. Miss Collier points to the claimant's description of the manner in which she was treated by the police. Miss Collier submits that the claimant did not show that there was a real risk of insufficiency of protection in so far as the kidnapping for prostitution was concerned. Mr Durance accepted the situation in Moldova is not such that all women in Moldova of the appropriate age would be entitled to prevent their removal from here to Moldova on the grounds of insufficient protection for those at risk of being kidnapped for prostitution. He submits that the claimant is in a particular situation because she has herself already been kidnapped. It seems to me that whilst accepting her kidnapping for prostitution, her experiences show, as the Adjudicator found, that the police made such investigations as were open to them in the circumstances.[27]In Ground 4 of the Grounds of Appeal to the Immigration Appeal Tribunal, it was submitted the Adjudicator had erred in her assessment of the protection which would be available to the claimant on return to Moldova. As to this ground, the IAT wrote:
"There was nothing in Ground 4, because the evidence does not establish that the applicant came to the attention of women traffickers at all."
In the absence of a finding of fact against the claimant, it seems to me that this is not a good reason for rejecting Ground 4. However for the reasons which I have set out, there was no real prospect of an appeal on Ground 4 succeeding, given the findings of fact made by the Adjudicator as to the manner in which the claimant's case was handled in Moldova immediately following the attack and in the period thereafter until her departure.[28]For all of these reasons, this application for judicial review fails.