SB (Sufficiency of Protection, Mafia) Albania [2003] UKIAT 00028 (11 July 2003) [2003] UKIAT 00028

UKIAT

SB (Sufficiency of Protection, Mafia) Albania [2003] UKIAT 00028 (11 July 2003)

[2003] UKIAT 00028 · 2003-07-11

[1]SB (Sufficiency of Protection-Mafia) Albania

[2003] UKIAT 00028

(11 July 2003) IMMIGRATION APPEAL TRIBUNAL Date of hearing: 12 February 2003 Date Determination notified: 13 February 2003 Before Mr H J E Latter (Chairman) Mr C H Bennett Between SB APPELLANT and Secretary of State for the Home Department RESPONDENT For the appellant: Mr B Hawkin of Counsel Instructed by White Ryland, Solicitors For the respondent: Mr G Saunders, Home Office Presenting Officer DETERMINATION AND REASONS This is an appeal by Seit Buhaj, a citizen of Albania, against the determination of an Adjudicator (Mr T R Jones) who dismissed his appeal against the respondent's decision made on 4 April 2001 giving directions for his removal following the refusal of his claim for asylum.

[2]The appellant arrived at Heathrow Airport on 15 March 2001 accompanied by his wife and younger son. He claimed asylum on 27 March 2001. He based his claim on a fear of persecution as a member of the Legality Party. He also asserted that he was in fear of his life because of the Mafia. His claim was refused for the reasons set out in the respondent's letter dated 4 April 2001.

[3]The hearing of this appeal has had a protracted history. It was first set down for full hearing on 10 July 2001 but was then adjourned for the authentication of documents and there was a possibility that it might be linked with another appeal. By October 2001, no action had been taken by the respondent to authenticate the documents. The Adjudicator declined to allow the appeal under Rule 33 and it was set down for hearing on 13 December 2001. There were then a number of adjournments because of problems with the interpretation: a North Albanian interpreter was required. Eventually the hearing started on 14 March 2002 and was adjourned part heard until 4 April 2002, when it was finally completed. Unfortunately the determination was not issued until 4 September 2002.

[4]The Adjudicator has summarised the appellant's asylum interview at paragraphs 3-6 of his determination and his oral evidence at paragraphs 13-40. The appellant asserted that the police had not only subjected him to harassment on account of his membership of the Legality Party but also had been unwilling and unable to provide him with protection from his problems with the Mafia from 1996 because of the strong links between the Albanian authorities and the Mafia. He said that he was especially vulnerable to persecution because he was a successful businessman. There had been four attempts on his life since 1996. He relied in particular on four incidents. He referred to a threatening letter which he had received in November 1996. His factory had been dynamited in August 1997. He suspected that a Mafia group had been responsible. There had been an incident in October 1997 when he was wounded in the leg by a firearm. The police had not helped him because at that time they were not able to defend themselves let alone anyone else. There had been a further attempt on his life on 5 February 2001 when he was returning from work in the afternoon. His car had been crashed into and he was forced to get out. He was threatened. He believed that the aim of this incident was to apply pressure to him and isolate him from his political activities.

[5]The Adjudicator had before him a psychiatric report prepared by Dr Herst dated 8 January 2002. In that document at page 3 (A3A) when relating this incident, the report says:

"There is a 2 inch U-shaped scar clearly visible on the lateral aspect of his left leg, which is consistent with a gunshot wound."

The Adjudicator expressed concern about this passage. He said that this seemed to be a record of what the appellant had told Dr Herst and was stated as part of the history. It did not say that Dr Herst saw the scar, still less that he gave any expert opinion upon it. The Adjudicator was not satisfied that the appellant had suffered a gunshot wound in the circumstances he described.

[6]The Adjudicator did not find the appellant to be a credible witness. He has given his reasons in paragraphs 54-57 of his determination. He was not satisfied that the Mafia had persecuted the appellant because of his political opinion or for any other Convention reason. He accepted that the claimant feared that the Mafia wanted a share in his prosperity. He said that taking a global view of all the evidence he accepted it as reasonably likely that what the appellant had described was attempted extortion, criminal damage and criminal activity activated by greed and social envy, not persecution for a Convention reason: see paragraph 53. The Adjudicator went on to refer to the evidence that the appellant's company had been granted a licence for expansion in March 2000. He asked why, if the authorities in Albania were bent on persecuting him for any reason they should grant him a licence to expand his factory. The appellant's response was that the licence had come too late and that the factory was in his wife's name but elsewhere in the evidence he said that this was for tax reasons. The Adjudicator was not satisfied that it was reasonably likely that the authorities in Albania had persecuted him in the two years prior to his departure.

[7]In paragraph 55 of his determination the Adjudicator dealt with the individual episodes referred to above. He was not satisfied that an assault had taken place on 4 October 1997 but said that had his decision in relation to this incident been otherwise he would not have found that it was evidence of persecution by the authorities but an independent criminal assault perpetrated for gain: paragraph 55(a). He accepted that the factory had been dynamited in August 1997 but he was not satisfied that this was directed at the appellant personally but had been at a time when there was considerable civil unrest following the collapse of a number of pyramid schemes in Albania. The Adjudicator also heard evidence about an incident relating to the appellant's elder son. For the reasons which he gave he was not satisfied that this incident had occurred. The Adjudicator went on to deal with the incident on 5 February 2001. He rejected the appellant's evidence about this, basing his reasoning on a document a '"vertetim" purporting to come from the Police Commissariat in Shkodar. In the light of these findings of facts the Adjudicator dismissed the appeal on both asylum and human rights grounds.

[8]In his submissions Mr Hawkin argued firstly that the delay between the hearing and the issue of the determination indicated that the findings were unsafe. Credibility was central to the determination of this appeal and there had been exceptional delays. The Tribunal invited Mr Hawkin to comment on paragraph 12 of the determination where the Adjudicator records that he had come to his findings of credibility within a day or two of the final hearing but had had to re-cast the determination for practical reasons. Mr Hawkin submitted that it was not clear what it meant by re-casting the determination: there was no explanation for the delay.

[9]Mr Hawkin submitted that the Adjudicator's findings were in any event unsafe. The Adjudicator had been wrong to rely on adverse inferences drawn from the document dated 26 February 2001 produced in support of the incident on 5 February 2001. The Adjudicator had noted that the document also dealt with the incident on 12 June 2001, after the date of the document itself. He argued that the Adjudicator should have accepted that this was a clerical error. In dealing with the alleged incident to the appellant's elder son, the Adjudicator had failed to give proper weight to the appellant's oral evidence or to the explanation as to why the vertetim had a clerical error on it.

[10]He argued that the Adjudicator had been wrong to discount the evidence about the scar in Dr Herst's report. It was clear from the wording of the report that Dr Herst had seen the scar and was giving an opinion about how it was caused. This evidence was important as it supported the appellant's account of the shooting incident in October 1997. This approach was not reasonably open to the Adjudicator. Mr Hawkin further submitted that the Adjudicator had been wrong to find that there was no real risk on return. He should have dealt far more clearly with the claim under Article 3. The Adjudicator had clearly not disbelieved all the evidence but had failed to make it clear what he had believed.

[11]Mr Saunders submitted that the appellant had not been prejudiced by the delay. The determination had been carefully written. There was nothing to suggest that the Adjudicator had misunderstood the evidence. It was for the Adjudicator to decide what weight to attach to the dates in the vertetim produced in evidence. The medical evidence about the gunshot wound was unsatisfactory. There was nothing to suggest that Dr Herst any particular expertise in this field.

[12]The Adjudicator had not believed the appellant's evidence. Looking at the objective evidence, there was no reason to believe that members of the Legality Party would be at any risk of persecution. In the light of the lapse of time there would no longer be a risk from criminals.

[13]The Tribunal will deal firstly with the issue of delay. In Mario [1998] Imm AR 281, the Tribunal said that it would usually remit a case to another Adjudicator where the period between the hearing and the dictation of the determination was more than three months. In Narotam Shandar [2000] Imm AR 181, Richards J was dealing with a case where there had been a nine month delay between the date of hearing and the signing and promulgating of the determination. It was a case where there had been no oral evidence. There were no factors which caused concern about the implications of the delay. There was nothing to show that the delay gave rise to any prejudice which would have justified the grant of leave to appeal.

[14]In Cobham v Frett

[2001] 1WLR1775

, the Judicial Committee of the Privy Council considered the effect of the delay between the conclusion of a trial and the delivery of judgment. The Judicial Committee held that if excessive delay was to be relied upon in attacking a judgment, a fair case must be shown for believing that the judgment contained errors that were probably or even possibly attributable to that delay. Excessive delay may require a very careful perusal of the judge's findings of fact and of his reasons for his conclusions in order to ensure that the delay has not caused injustice to a losing party. It would be important to consider the quality of the judge's notes not only of the evidence but also of the advocate's submissions. It was not permissible to conclude merely from the fact of delay that a judge had difficulty in remembering the demeanour of witnesses. An appellate court must be satisfied that the judgment was not safe and that to allow it to stand would be unfair to the losing party.

[15]The issue of delay was also considered by the Court of Appeal in Rex Goose v Wilson Sandford & Co 13 February 1998. In paragraph 112, Peter Gibson LJ wrote as follows:

"A judge's tardiness in completing his judicial task after a trial is over denies justice to the winning party during the period of the delay. It also undermines the loser's confidence in the correctness of the decision which is eventually delivered. Litigation causes quite enough stress as it is for people to have to endure while a trial is going on. Compelling them to await judgment for an indefinitely extended period after the trial is over will only serve to prolong their anxiety, and may well increase it. Conduct like this weakens public confidence in the whole judicial process. Left unchecked it would be ultimately subversive of the rule of law. Delays on this scale cannot and will not be tolerated. A situation like this must never occur again."

[16]In that case the Court of Appeal was dealing with a delay of 20 months. In the past the Tribunal have made it clear that in asylum appeals a delay of three months between the hearing and preparation of the determination is unacceptable. The nature of the issues raised particularly in an asylum appeal are such that undue delay causes unnecessary worry and prejudice to a deserving claimant and equally it is not in the public interest where the claimant is undeserving. Asylum, immigration and human rights appeals should be determined with as little delay as possible ideally on the day or at least within days of the hearing. It should only be in exceptional cases that any further delay is justifiable. In this case the Tribunal do not know the reason for the delay between the final hearing and the issue of the determination. All that we can glean from the appeal file is that it was submitted for promulgation on 13 August 2002 and was issued on 4 September 2002. However, the Adjudicator has made it clear in paragraph 12 of his determination that he came to his findings on credibility and fact within a day or two of the final hearing. It is clear that he kept audio tapes of the proceedings in addition to his own notes of evidence. The delay in the production of the determination arose because of problems that occurred in transcription. He had to recast the determination for practical reasons and then checked matters of evidence from the audio tapes producing a handwritten transcript for reference purposes.

[17]The Tribunal accept and indeed there is no challenge to the Adjudicator's confirmation that he reached his findings on credibility shortly after the conclusion of the hearing. In these circumstances it is hard to see what prejudice there has been to the appellant save for the delay in awaiting the result. In Rolled Steel Ltd v British Steel Corporation

[1986] CH246

, the Court of Appeal were dealing with a case where a judge had delayed giving judgment for nearly eight months following a 19-day trial. Lawton LJ commented that long delays in delivering a judgment can cause disquiet and suspicion among litigants who lose and those who win may feel they have been deprived of justice for far too long. Delays of this length should not occur unless there are compelling reasons why they should and if there are such reasons it would be prudent for a judge to refer to them briefly.

[18]The Adjudicator has followed this advice and the Tribunal are satisfied that no prejudice has arisen from the mere fact of the delay and there is no justification on this ground alone for interfering with the Adjudicator's findings of fact.

[19]The Tribunal will now turn to deal with Mr Hawkin's other criticisms of the Adjudicator's findings. He argues that the Adjudicator was wrong not to attach weight to the document which was submitted in support of the incident of 5 February 2001. The Adjudicator commented that the document also certified an incident involving the appellant's son on 12 June 2001 when all the other evidence referred to a date in June 2000. He said that he watched the appellant as he gave his evidence and was satisfied that the significance of the police "mistake" was not lost on him. The appellant had no explanation other than to suggest that the date should have been 12 June 2000. Looking at the evidence in the round he did not consider that this was a document on which he could place reliance. Mr Hawkin argued that the Adjudicator was placing far too high a standard of proof on the appellant when considering this document. There is no substance in this assertion as the Adjudicator has properly directed himself on the burden and standard of proof in paragraph 46 of his determination and there is nothing to indicate that he has not properly applied that standard. Indeed he refers specifically to it in paragraph 55(d). During submissions the Tribunal asked Mr Hawkin whether, bearing in mind the lapse of time, there had been any further enquiries with the Police Commissariat in Shkodar to confirm whether or not there was a clerical error on the document. There was no further evidence in this respect.

[20]In the view of the Tribunal the Adjudicator's findings were properly open to him. It was for him to decide what weight to give to this document in the light of all the evidence and in our view his conclusions were properly open to him.

[21]It is also submitted that the Adjudicator was wrong not to accept the evidence of the incident relating to the appellant's elder son. It is argued that he did not give sufficient weight to the appellant's oral evidence. However, this again was a matter for the Adjudicator to assess in the light of all the evidence. It was for him to decide what weight to attach to the evidence and to the contradictions between the oral evidence and the account given to Dr Herst.

[22]It is argued that the Adjudicator was wrong to find that there had been no gunshot wound in October 1997. The Tribunal are prepared to assume that when Dr Herst referred to this scar he had seen it and was expressing a view that it was consistent with a gunshot wound. We bear in mind that the report was a psychiatric report rather than a medical report where normally there would be a separate description of what was seen on examination. However, the Adjudicator has indicated in paragraph 55(a) that he would have regarded such an incident as an independent criminal assault perpetrated for gain and not being evidence of persecution. In the light of the situation in Albania at that time, such a finding would be properly open to him.

[23]The appellant's claim was based on a fear of persecution as a member of the Legality Party. The Tribunal note from the CIPU Albania Country Assessment October 2002 that the Legality Movement Party form part of the Union for Victory Coalition which obtained the second largest number of seats in the 2001 election. In January 2002 the Union for Victory ended a boycott that had lasted since the formation of the new government in September 2001 and entered the Albanian Assembly. The Tribunal are not satisfied that membership of the Legality Party would now put the appellant at any risk on return.

[24]It was argued that in the light of the human rights situation in Albania and the fact that there was widespread organised crime there would continue to be a risk to the appellant because he was a successful businessman. However, the appellant become bankrupt in late 2000/early 2001. On his own evidence, the appellant does have property in Albania but his assets are depreciating quickly. When talking about his factory, he said that there was no one to manage it and no market for the product. He could not sell the factory: see paragraphs 33-5 of the determination. If the appellant were now to return to Albania, in our view there is no real risk that he would be targeted as a wealthy businessman and become a victim of further attempts to extort money from him. In any event, there is no reason why he should not look to the police for protection. The Tribunal are aware of the problems faced by the police in Albania and by the authorities in reforming the police and dealing with corruption. In the light of paragraphs 6.120-122 the Tribunal are satisfied that efforts are being made to deal with these issues. In our view the appellant would be able to look to the authorities for protection.

[25]In the view of the Tribunal, the Adjudicator's findings and conclusions were properly open to him on the evidence. In the light of his findings there was no need for him to deal in any greater depth with Articles 3 or 8. Mr Hawkin accepted before the Tribunal that he did not seek to rely on Article 8 as distinct from Article 3 in the light of the judgment of the Court of Appeal in Ullah & Do

[2002] EWCA Civ 1856

. For the reasons the Tribunal have given we are not satisfied that on the facts found by the Adjudicator there is any real risk of a breach of Article 3.

[26]In summary, despite the unfortunate delay in this determination being promulgated, the Tribunal are satisfied that the Adjudicator has evaluated this appeal in a very careful and comprehensive way and reached findings which were properly open to him on the evidence. There is no proper basis on which the Tribunal should reverse or set aside those findings.

[27]It follows that this appeal must be dismissed. H J E Latter Vice President