MF JF (Sufficiency of Protection, Anti-Semitic Acts, Anti-Russian Acts) Lithuania [2001] UKIAT 00004 (03 December 2001) [2001] UKIAT 00004

UKIAT
MF JF (Sufficiency of Protection, Anti-Semitic Acts, Anti-Russian Acts) Lithuania [2001] UKIAT 00004 (03 December 2001)
[2001] UKIAT 00004 · 2001-12-03
[1]MF JF (Sufficiency of Protection, Anti-Semitic Acts, Anti-Russian Acts) Lithuania [2001] UKIAT 00004 IMMIGRATION APPEAL TRIBUNAL Date of hearing: 03 August 2001 Date Determination notified: 03 December 2001 Before Mr J Barnes (Chair) Mrs E Hurst JP Mr C Thursby Between MF APPELLANT and Secretary of State for the Home Department RESPONDENT Representation: For the appellant's: Ms K Cronin of Counsel instructed by Harding Evans. For the respondent: Mr C Trent, Presenting Officer DETERMINATION AND REASONS The first appellant is a citizen of Lithuania and the wife of the second appellant, who is also a citizen of Lithuania. The second appellant is mentioned only because, erroneously, the leave determination of the Tribunal issued on 25 May 2001 wrongly refers to both appellants. The application for leave to appeal was in relation to the first appellant only. The Secretary of State had certified in the case of the second appellant that his claim was one to which paragraph 5(4) (b) of Schedule 2 to the Asylum and Immigration Appeals Act 1993 and that paragraph 5(5) of the Schedule did not apply because he had adduced no evidence relating to torture. The Special Adjudicator, Mr M E J Rush, who heard both appeals together and issued a joint determination, stated at paragraph 57 of his determination that he found the second appellant's case to be properly certified and that he upheld the Secretary of State's certificate. It follows, therefore, that the second appellant has no right of appeal to the Tribunal, as Ms Cronin properly conceded at the commencement of the hearing. We are, accordingly concerned only with the appeal of the first appellant to whom we shall hereafter refer as "the appellant". We shall also now refer to the second appellant as her husband.[2]The factual history of the experiences of the appellant and her family in Lithuania are not disputed by the Secretary of State. We now summarise them. The appellant's parents were both Russian but her father was of Jewish ethnicity. The husband was also of Russian ethnicity although born in Lithuania. The appellant arrived with her daughter, Viktorija Filiusina born on 20 December 1983, in the United Kingdom on 16 February 2000 and the appellant claimed asylum on arrival, with her daughter as her dependant. The Husband did not arrive in the United Kingdom until 13 March 2000 because he stayed in Lithuania to continue working in order to pay off money owed to the letting agency for the family apartment. He had been employed in Lithuania as a long distance lorry driver, apparently on a permanent basis, involving frequent visits to other former countries of the USSR in the course of that work. He did not claim ever to have been the subject of any physical attack in Lithuania although he complained of generalised discrimination by Lithuanians against ethnic Russians there and saw no future for him and his family, being particularly concerned that his daughter would not be able to go to university in Lithuania because of her Russian ethnicity. The appellant had worked as an administrator in a shop in Vilnius, her home city, from 1991 to 1997 but does not appear to have worked since then. She complained of harassment by ethnic Lithuanians, particularly members of the Budkus family with whom they appeared at one stage to have been on sufficiently friendly relations for them to lend the appellant's family the sum of $2,000 in early 1997 to assist in paying for medicine, hospital care and the funeral costs of the appellant's father who died in May 1997. He was buried in Lithuania in the Jewish cemetery. By January 1998 most of that debt had been repaid but the attitude of the Budkus family to the appellant and her family changed in the summer of 1998 from one of friendship to animosity. They demanded repayment of the balance of the money due to them with interest and began making racist comments about the appellant on the basis of her Jewish ethnicity. The appellant believed that it was only then that the Budkus family had discovered her Jewish ethnicity. For their part they made it clear that they were not prepared to pay any interest on the loan because none had been agreed in the first place. They accepted that relations between the two families had completely broken down. In November 1998 the appellant was attacked from behind in her apartment building,, when her head was knocked forcefully against a window. She could not identify the attacker whom she did not see. The following day there was a telephone call from one of the Budkus family and the caller said "we did not kill you this time". From that point on there were threatening telephone calls, which included violent anti-Semitic comments, about once a week. The attack was reported to the police but they said that in the absence of identification of the attacker they could do nothing and had no evidence on which to base a case, although they were told the history of the vendetta against the family by the Budkus family. In September 1999 the appellant and her husband decided that it would be safer for their daughter to live with friends in the countryside because the husband's work took him away from home frequently. In November 1999, Viktorija was attacked in a nightclub in Vilnius by Karolis Budkus, the son of those who had made the loan. This resulted in the prosecution of the son who was, on 10 February 2000 convicted of the assault on the basis of Viktorija's evidence. Karolis Budkus was fined a sum which the appellant estimates to be the equivalent of £350 for the attack, in the course of which it appears that a swastika had been drawn on the daughter's jacket. The family say that they were disgusted with the low fine and the failure of any requirement that the attacker should apologise to their daughter. On the following day there was a further threatening telephone call from the Budkus family in which they demanded repayment of the fine and made further threats against the appellant and her daughter which led to their departure to the United Kingdom a few days latter. No further attempt to seek the protection of the authorities was made.[3]When leave was granted for the present appeal, the ground relating to a claimed breach of the appellant's human rights was excluded as a result of a misapprehension that the removal directions in the case of the appellant, as well as her husband, had been issued prior to 2 October 2000 whereas, in fact, they were not issued until l9 November 2000. Ms Cronin applied for leave to reinstate the grounds of appeal relating to claimed breaches of the appellant's human rights, and by consent, it was agreed that this should be done to enable the appellant to claim also a prospective breach of Article 3 by reason of removal.[4]Dealing with the issue of the assault on the appellant, and the general attitude of the Budkus family, the Adjudicator said:
"51? I see no credible evidence that the Budkus family were anti-Semitic in the way that they treated the family. The wife stated that the matters came to a head when they found out that she was Jewish. I simply do not believe that the Budkus family would not have known of the background and indeed it is highly significant that they advanced money to assist the family in nursing the father who died in May 1997 and was buried in the Jewish cemetery at that time and this is at least a year before the documented problems of the appellant's family started. I have absolutely no doubt at all that the problems in this case arose over the non-payment of the debt. I have no doubt that the two appellant's in this case are facing economic hardship, I note that there is no recorded work for the wife since she gave up work in 1997. The whole of the husband's interview refers to hardship problems and a better future for the daughter. Quite clearly economic migration because of financial hardship is behind many of the phrases that have been given and used in evidence in this case. 5. It goes without saying that the non-payment of a debt leading to a conflict between the plaintiff and the debtor simply is not sufficient to engage the Convention. 53. I do not accept the wife's evidence that the attack upon her by an unknown assailant in 1998 was evidence of insufficiency of protection. It is clearly quite impossible for the police to afford any protection if there is no evidence of the identity of the assailant. There has been no medical evidence in relation to the appellant's condition and I think that there has been a gross exaggeration of whatever happened on that particular occasion."
[5]He then went on to deal with the incident involving the appellant's daughter at paragraphs 54 ? 56 of the determination. Again we set these out."54. The next incident was the events involving the daughter and the younger son of the Budkus family in a fight outside the disco. The police were brought in at an early stage and cleary took appropriate action as documented and I am totally satisfied that the Horvath test of sufficiency of protection has in fact been satisfied in this case. I recall the statement of the appellant's wife in her SEF that the police did all they could in the circumstances. In any event, whether the mothers evidence is to be accepted or the daughter's the fine according to the mother £350 according to the daughter £100 is a substantial one and cannot be said to be evidence and [sic] indifference by the court. In any event I do not regard criticism of court judgement upholding the appellant's view as in any way engaging the Convention [sic].55. Quite apart from that I find the Budkus family cannot be said to be agents of persecution the matter is a private dispute between the two families and cannot be said to be the evidence of widespread anti-Semitism justified by the objective evidence asserted upon me in this case.56. I believe and find that the police acted entirely properly as one would expect reviewing the objective evidence available."[6]The first issue raised in the grounds of appeal is in relation to paragraph 53 of the determination and the reference to absence of medical evidence. It is complained that it is not appropriate to require corroboration so that the Adjudicator was in error in his approach, which was heightened by the acceptance of the appellant's account as credible by the Secretary of State. It does not seem to us that this advances the appellant's case in any way. The Adjudicator found as a fact that there had been the assault of which she complained but questioned the severity of its claimed effect on her health. As credibility is not in any other way challenged, that seems to us to be irrelevant to the issues for decision in this appeal. The second basis of challenge to the Adjudicator's conclusions is in relation to his view expressed in paragraph 51 as to whether the hostility between the families occurred as a result of the appellant's Jewish ethnicity. It is accepted that there is no evidence as to why the falling out between the families occurred but simply that it happened in mid 1998 and that thereafter the Budkus family regularly made racially based anti-Semitic insults. Again, it seems to us that whether this was because of the dispute over the repayment of money ? which on the face of it seems the more probable explanation for the reasons given by the Adjudicator ? is immaterial. The point is that once the falling out occurred, racial abuse followed coupled with threats of physical harm which, in the case of the appellant, are reasonably likely to have been coupled with the single physical assault upon her in November 1998 and, without question, were connected with the assault on the daughter in November 1999.[7]It seems to us that the issues for decision are, first, whether because the interfamily dispute descended into racially based allegations, it can be said that the Refugee Convention is potentially engaged, and, secondly, if so whether the nature of the treatment suffered by the appellant and her family is potentially persecutory for the purposes of the Refugee Convention or, "torture or inhuman or degrading treatment and punishment", contrary to Article 3 of the 1950 European Convention on Human Rights. If those questions are answered in the affirmative, then the issue is whether the Lithuanian State provides a sufficiency of protection against such conduct. If not, the appellant would be entitled to seek international surrogate protection.[8]Ms Cronin accepted that, apart from the claim by the daughter about general harassment at disco's which she attended and the claims by the appellant and her husband of some generalised ethnic discrimination which was not particularised beyond the specific incidents identified above, the appellant's case depended upon the actions of the Budkus family and the inference to be drawn from the failure of the Latvian authorities to prosecute somebody for the assault on the appellant and not to have taken what they regarded as appropriately strong measures based on racist assault in connection with the charges against Karolis Budkus. Ms Cronin informed us that she had no evidence of the comparative levels of fine appropriate in Lithuania relevant to the issue of the gravity of the fine imposed on him. Further, that there was no evidence in relation to civil and criminal law procedures in Lithuania relevant to the case brought against him beyond anything which appeared in the Home Office Country Information and Policy Unit assessment of April 2001 filed on behalf of the Secretary of State. In this respect she referred us to the overview of the judicial system in Lithuania set out in paragraphs 4.33 ? 4.45 of that assessment. She also conceded that nobody could know what protection might have been offered to the appellant and her family against the actions of the Budkus family following the son's conviction because there had been no attempt to seek any such redress from then until their departure by any member of the family. The appellant's complaint was that the assault by the son was not characterised as a racist attack by the authorities and whilst she accepted that the CIPU Report demonstrated the necessary laws for dealing with racist crimes were in place, the appellant complained that they had not been applied in her daughter's case. As to the general situation in Lithuania, Ms Cronin relied upon the summary of Articles from the "Lithuanian Morning" and "Letvos Ritas", a Lithuanian daily newspaper which were summarised, although not translated, on page 96 of the appellant's bundle. She also referred us to paragraphs 5.44 ? 5.51 of the current CIPU assessment. She asked, that in view of the failure of the Adjudicator to evaluate the objective evidence that the Tribunal should do so against the accepted facts set out above. We deal with the country background information below but there was one other point which had been raised in the grounds of appeal, relating to the potential discrimination against the daughter in relation to her ability to attend university. It was Ms Cronin's submission that this required to be considered as a Convention Issue. We pointed out to her, however, that in dealing with the question of whether breach of third level rights, under Professor Hathaway's classification in the Law of Refugee Status, could be regarded as being of sufficient seriousness to cross the threshold from discrimination to persecution, Professor Hathaway specifically made the point that the nature of the third level right to education was internationally recognised as being limited to primary education. Ms Cronin accepted that on that basis she could not advance her arguments further in relation to any question of persecution under the Refugee Convention on this basis beyond asserting that there was an issue as to whether denial of tertiary education could be regarded as potentially in breach of third level rights under the Hathaway classification.[9]For the Secretary of State, Mr Trent submitted that little weight should be attached to a summary of untranslated articles, even the date of which was not given. In broad terms it was his submission, that in spite of the failure to deal in more detail with the country background information, the general approach of the Adjudicator was right and should be upheld.[10]Dealing with the general background situation, we note that in the October 2000 Parliamentary elections the left of centre Social Democratic Coalition (SDC) took power, replacing the previous coalition between the Homeland Union (a conservative party) and the Christian Democratic Party which had come to power in 1996. The country was in the process of changing to a market based economy and Lithuania had ratified those international instruments appropriate in connection with its desire to obtain European Union membership. Reforms in the criminal and civil codes which came into force in July 2001 were primarily based on compliance with requirements of the European Convention on Basic Human Rights and Freedoms, and the court system had been reformed similarly. There was, however, an existing criminal code regularly administered through a local and national court system. The European Commission's Progress Report of November 2000 regarded Lithuania as continuing to fulfil the Copenhagen political criteria for EU membership, and noted the reform of the civil and criminal justice system, which was continuing. The Progress Report also stated that Lithuania continued to respect human rights and freedoms and that the situation regarding the protection of minorities continued to be satisfactory, with religious freedom respected. The Constitution provided that there should be no state religion in Lithuania and for the right for every person freely to choose any religion or faith and to observe and practice it individually or with others, in public or private. The government generally respected this provision in practice and Judaism was officially recognised as one of the nine religious communities declared traditional by the law and therefore eligible for governmental assistance. In 1999 the Hasidic Chabad Lubavich community of Orthodox Jews was recognised as a traditional religious group and was granted the status of a traditional religious community. At paragraph 5.45 of the CIPU Assessment, it is noted that a certain level of anti-Semitic sentiment persists in the country and, at 5.44, that there are currently some 9,600 Jews in Lithuania. It notes that the sentiment is reflected in "sporadic public incidents and sensationalist exploitation of anti-Semitism for commercial gain" but there had been public governmental condemnation of such matters, specifically anti-Semitic articles published on 18 October 2000 in a daily newspaper which led to an official criminal investigation by the Prosecutor General. In April 2000 the President had stated that Lithuania would not tolerate anti-Semitism and the new Holocaust and Jewish Cultural Centre was opened in Vilnius in March 2000. Two anti-Semitic organisations had been banned and the penal code provided for imprisonment for two to ten years for incitements of racial or national hatred.[11]The Russian minority is Lithuania constitutes some 9.4% of the population, that is some 344,000 people. Although there were initial intense relations between the Lithuanian authorities and the Russian minority after independence, that situation had improved considerably since 1991 and Russia had cited Lithuania's treatment of its Russian minority as an example which other Baltic states should follow. The overwhelming majority of ethnic Russians had chosen Lithuanian citizenship and the Russian minority had access to primary, secondary and tertiary education in their own language. There were regular television broadcasts and periodicals in the Russian language. Ethnic Russians had sat in the Lithuanian Parliament and on municipal councils since independence, and participated in politics through political parties and organisations established since the mid 1990's.[12]Of the articles referred to in the appellant's bundle, one is said to be concerned with expressions of concern among Jews at the election of the Mayor of Kaunas because of his anti-Semitic stance and the other refers to an expression of apology by the Bishops of the Lithuanian Catholic Church for the participation of the Lithuanians in the extinction of Jews during the Second World War during the Nazi occupation but claims that there are some within the Church expressing a fascist ideology.[13]The CIPU assessment is based upon international and local sources which are specifically listed. We regard it as an authoritative report, just like the earlier version, which was, indeed included in the appellant's bundle, and are satisfied that whilst there may be some examples of anti-Semitism and anti-Russian feeling in Lithuania on the part of certain elements in the population, there is no evidence of general discrimination and clear evidence that in specific cases the authorities take appropriate action through the criminal system to deal with such matters.[14]Turning to the specific circumstances of this appellant, the only specific claims all relate to the animosity which developed between their family and the Budkus family. What led to the breakdown of their relationship can be only a matter of speculation. It may well be that the Adjudicator is right in saying the root of the breakdown arose from the loan. Once the breakdown took place, the Budkus family resorted to threats and racial insults referable to the appellant's part Jewish ancestry. In our view it cannot arguably be said that the decision of the Adjudicator is not sustainable. Looking at such evidence as was before him, we consider that it was properly open to him to conclude that the likely cause of the breakdown was a dispute over repayment of the loan and that, given the friendship between the families and the original purpose of the loan which included payment of the funeral expenses of the appellant's Jewish father, that the conclusion that the appellant's ethnicity was well known to the Budkus family, prior to whatever caused the rupture in their relationships, was also properly open to the Adjudicator. Ms Cronin, understandably in the light of the country background evidence, did not seek to place any particular reliance upon the generalised allegations of discrimination for ethnic reasons. On the basis of the particular facts, it was clearly open to the Adjudicator to conclude that the unpleasant behaviour of the Budkus family was not by reason of race but because there had been a falling out over the loan of money. It was properly open for him to conclude that the Refugee Convention was not in any way engaged.[15]Let us suppose, however, that it could be properly found that the Convention was engaged and that the treatment meted out to the appellant and her family by the Budkus family was for reasons of racial discrimination. In order to give rise to a well-founded fear of persecution under the Refugee Convention or to a breach of Article 3 rights, it would have to reach a minimum level of severity. Unpleasant though their experiences undoubtedly were, it seems to us that the conduct of this one family had not reached such a minimum level of severity as would engage either Convention. Even if it had, however, it would not assist the appellant unless the Lithuanian State were not prepared to provide reasonable protection against the threatened harm. We agree with the Adjudicator that the failure to institute proceedings against an unidentified member of the Budkus family in relation to the assault on the appellant cannot be categorised as such a failure of protection. In order for there to be criminal charges, a criminal actor must be identified and the appellant is quite clear that she was unable to do so. Suspicion that the person concerned may have been a member of a particular family would not be sufficient to identify a potential defendant to a criminal charge. In this connection it also seems to us significant that once an assailant was specifically identified, the police did take action. Whilst we note that the appellant and her family thought that the action should have been taken on a different basis and that a greater punishment should have been imposed, it seems to us that it is the fact of the act of prosecution of the son, followed by his conviction on the acceptance of the oral evidence of the daughter and the imposition of a substantial fine, which is important. There was no evidence before us as to the general range of penalties imposed by the Lithuanian Courts for this type of action but, in any system of criminal jurisprudence, it would be relevant that the parties were known to each other and that there was a history of family enmity. It was not a case where the daughter was randomly attacked because she was part Jewish, but where she was specifically attacked by someone who knew her because she was a member of her family. Those are matters which are bound to be reflected in the view of any prosecutor as to how the charges should be framed. In our view it cannot arguably be said that the Lithuanian State failed to take appropriate action or that the criminal law was not appropriately enforced in respect of that assault. Beyond that neither the appellant nor any other member of the family sought to seek further protection of the authorities but, since they seek international surrogate protection, it is a basic requirement that they should first exhaust all reasonable courses open to them to seek protection in their own country. They have signally failed to do so in circumstances where the facts demonstrate that the authorities would invoke the law to assist them. For that reason, the appellant fails to demonstrate that there is a reasonable likelihood that the authorities will not afford her and her immediate family the protection which they are entitled to expect from their own state. It necessarily follows that she cannot succeed either in her claim under the Refugee Convention or in respect of breach of human rights under Article 3 of the European Convention on Human Rights. The Secretary of State will not, therefore, be in breach of any international obligation in removal of the appellant to Lithuania.[16]For the above reasons, this appeal is dismissed. © Crown Copyright