AG (Persecution, Discrimination, Risk, Family member) Israel [2004] UKIAT 00215 (27 July 2004) [2004] UKIAT 00215

UKIAT
AG (Persecution, Discrimination, Risk, Family member) Israel [2004] UKIAT 00215 (27 July 2004)
[2004] UKIAT 00215 · 2004-07-27
[1]AG (Persecution - Discrimination - Risk - Family member) Israel UKIAT 00215 IMMIGRATION APPEAL TRIBUNAL Date of hearing: 8July 2004 Date Determination notified: 27 July 2004 Before Mr A Jordan (Vice President) Mr K Craig Mr J H Eames Between AG APPELLANT and Secretary of State for the Home Department RESPONDENT For the appellant: Mr N S Stanage, of Counsel, instructed by Browell Smith & Co, Solicitors For the respondent: Mrs L Prince, Home Office Presenting Officer DETERMINATION AND REASONS The Secretary of State appeals against a determination of an Adjudicator, Mr D G B Trotter, promulgated on 22 October 2003 following a hearing at the North Shields Hearing Centre on 1 October 2003 in which he allowed the appeal of the claimant against the decision of the Secretary of State to refuse both the claimant's human rights and asylum claims.[2]The claimant is a citizen of Israel although he is a non-Jewish citizen of Israel. He was born on 1 April 1982 and is now 22 years old. He entered the United Kingdom on 16 August 2001 when he was 19 years old. On 27 June 2003 a decision was made to refuse to grant him asylum and to refuse him a variation of leave to enter the United Kingdom. Accordingly this gave rise to a right of appeal under section 82(1) of the Nationality Immigration and Asylum Act 2002 which the claimant duly exercised on 15 July 2003.[3]The basis of his claim as set out by the Adjudicator in the determination was that the appellant had suffered from discrimination as a Palestinian. He was brought up in a village called Abu Ghosh. This is a small Palestinian village separated from the surrounding Jewish areas by a fence. In the early part of the appellant's life the family was driven from Abu Ghosh to Ramallah in the West Bank where they stayed as refugees for some years and the claimant alleged that from time to time even the children were harassed by Israeli security forces but the claimant does not suggest that the treatment was any different from that meted out to Palestinians as a whole. The family left Ramallah when the claimant was about 14 or 15 years of age and then eventually returned to Abu Ghosh when the appellant was 19 years of age.[4]The account that the claimant gave was that there was an incident when he was 5 years old when there was an attack on the family home by Israeli security forces as result of which he was injured. His brother was shot at one point during the Intifada. There was also an incident in 1992, when the claimant was aged about 10, when his home was surrounded by Israeli soldiers. It was an extraordinarily frightening experience for him. That is the nature of the claim that he put forward. In1995 the claimant's family were bombed out by Palestinians believing that they were collaborators but that does not feature as part of the claim that the claimant is in fear of persecution from the Israeli authorities.[5]The claimant has a brother, although we do not know his age. It said in paragraph 14 of the determination that Mohammed, his brother, had been arrested on a number of occasions on suspicion of working with the Palestinians. He has never been charged. He appears not to have been badly treated in prison but was in prison for no reason except his ethnicity and, as the Adjudicator put it, "an inchoate suspicion".[6]The evidence that the claimant gave about his brother is found in a statement that he prepared and which was before the Adjudicator. In paragraph 23 of the statement, dated 9 September 2003, the claimant stated:
"My brother Mohammed was arrested by the Israelis on many occasions because they suspected he was working for the Palestinians. He would be in and out of detention. The fact that he had an Israeli passport did not help him. He was arrested in about 1998 and detained for about 6 months and the second time was in 2000. He was detained for 6 months again. He was never charged with anything. We went to visit him a few times. The coaches were arranged by the Red Cross. He was not badly treated when he was in prison but he was held for no reason. I do not want to make difficulties for him now."
[7]The fact that his brother has been arrested as set out above is put forward as a significant feature of the appellant's own claim.[8]The Adjudicator considered the background material. In paragraph 17 to19 of the determination, he summarised the position of non-Jewish citizens in Israel. The Adjudicator stated: "17. The US Department Report shows considerable distinction between the treatment of Jewish and non-Jewish citizens by the Israeli state so that, for example, we read at page 20 of the appellant's bundle that "there continue to be problems with respect to its treatment of Arab citizens" and "some security prisoners were sentenced on the basis of coerced confessions by both themselves and others according to the Human Rights Organisations. The legal system often imposed more severe punishment on Arab citizens than Jewish citizens…" and reference is made to the effect that "the government did little to reduce institutional legal and societal discrimination against the country's Arab citizens who constituted approximately 20% of the population but did not share fully the rights and benefits provided to and obligations imposed on the country's Jewish citizens".[9]In paragraph 18 of the determination the Adjudicator refers to malpractices conducted on the part of the police reported in the US State Department Report and, in paragraph 19, the Adjudicator refers to the societal discrimination against Palestinian Arabs set out in the US State Department Report such as to result in difficulties in relation to employment, access to education and health services, the exercise of the peaceful right to enjoy land and possessions and severe discrimination even in circumstances where members of that minority are Israeli citizens.[10]That was the basis upon which the Adjudicator determined the material before him. It was the same basis upon which Mr Stanage, who appeared on behalf of the claimant, conducted his appeal before the Tribunal. The Adjudicator considered that there were three questions that he was required to ask (and answer). First, whether being a Palestinian citizen of Israel would leave the claimant open to persecution (rather than harassment and discrimination alone), if he returned to Israel. Second whether the claimant's individual circumstances by reference to his family were such that he would be targeted for persecution and thirdly whether, as a returnee to Israel of Palestinian origin, he would be targeted and suffer persecution.[11]The Adjudicator decided in paragraph 23 of the determination, having considered the US State Department report concerning discrimination and sporadic harassment suffered by Israel citizens of Palestinian extraction, that this amounted to persecution. Accordingly he decided, as a non-Jewish Israeli citizen, the appellant was liable to persecution on return. It also followed that if that were so, he would also suffer a violation of his human rights under Article 3 of the ECHR.[12]Mr Stanage, appearing before the Tribunal this morning, agreed that the claim that he wished to advance (and on which the Adjudicator found in his favour) was that all non-Jewish citizens of the Israeli state are liable to persecution because the discrimination that they suffer is so widespread and so complete that it amounts to persecution.[13]He was not deterred by the fact that this would mean that the entire 20% of the population who are Israeli citizens, although of Arab dissent, would be entitled to claim asylum. As a result of that, he referred us to there being credible objective evidence upon which it was open to the Adjudicator to decide that this was the case.[14]During the course of his submissions we were not in fact referred to any of the other passages in the US State Department report save those that are referred to in paragraph 17, 18 and 19 in the Adjudicator's determination and which we have set out above. We have therefore simply confined our consideration to the resume of the background information set out by the Adjudicator in those paragraphs. Paragraph 17 of the determination talks of a distinction between the treatment of Jewish and non-Jewish citizens by the Israeli state. It also refers to there being problems with respect to its treatment of Arab citizens. The paragraph also refers to some security prisoners sentenced on the basis of coerced confessions and that the legal system imposed more severe punishment on Arab citizens than Jewish citizens. Since the claimant himself is not likely to be required to stand trial (because he is not suspected of any criminal offences by the Israeli authorities) the fact that the risk of imprisonment is greater for Arab citizens than it is for Jewish citizens is not directly in point, even though it points to the societal discrimination which is spoken of in the US State Department report. Similarly, it is accepted that, as a result of the content of the US State Department report by the Tribunal, the claimant establishes that there is discriminatory conduct by the Israeli authorities in relation to employment, access to education and health services.[15]In our judgment, however, the passages which are referred to by the Adjudicator do not amount to persecution. There is no strict definition of persecution and we would not wish to impose one here but we can see from those passages the conduct complained of is discriminatory but no more. The discrimination arises because the Arab Israelis are both an ethnic and a religious minority. Nevertheless, the discrimination does not in our judgment amount to persecution. It was submitted by Mr Stanage that the Adjudicator's view was the quantity of discrimination (if sufficiently widespread) takes on the quality of persecution. We hope we have correctly paraphrased this submission. In our judgment, in the absence of any other background material to which we have might have been referred in relation to the conduct of the Israeli authorities upon the Arab minority, it cannot be said that the claimant has made out his case that all Arab Israeli citizens are liable to persecution.[16]The second area upon which the claimant concentrates is that the claimant's brother has been arrested on a number of occasions and that this would inevitably put the claimant at risk himself. It first has to be said that the claimant reached his majority whilst he was in Israel, although he remained there for only a few months after his 18th birthday. There was no evidence to suggest that he had ever been targeted as an adult citizen by the security authorities. We do not have a sufficient indication as to what information the security services had in relation to Mohammed to be satisfied there was any evidence about his involvement in Palestinian activities. Assuming that there was none, however, it does not seem to us that the Adjudicator should simply assume that, because a brother has been arrested on a number of occasions and then released without charge, this places members of his family at risk or in a more difficult position. It is correct that in the background information in relation to other countries, there is sometimes credible evidence that the security services target other family members as a result of their suspicions in relation to one of them. There is no evidence that was put before us by the claimant, however, to suggest that the Israeli authorities do this. We do not think that it is for us to draw that inference. Even if that were the case, we do not consider the claimant has established it is reasonably likely it will happen to him.[17]The Adjudicator concluded in paragraph 23 of the determination:
"Almost inevitably this man would be identified as the brother of an administrative detainee on his return to Israel and he would be treated with even greater suspicion than he would ordinarily."
We considered whether there is any evidence in support of that submission.[18]Before the Adjudicator the claimant put forward a report prepared by Dr Gerd Monneman dated 26 August 2003. Dr Monneman is from Lancaster University Department of Politics and International Relations. He prepared a report which at page 5 makes a number of points. One passage reads:
"If his brother has indeed been linked to and arrested for Palestinian militant activity then not only is he likely to receive inadequate protection from Israel law enforcement and legal systems he may indeed be vulnerable to the type of human rights abuses (including arbitrary arrest, beatings etc) attested by the reports quoted earlier."
[19]That is the sum total of the evidence put forward in support of the proposition. It is submitted that the fact that the brother has been arrested will inevitably lead to the appellant's own arrest and persecution. We are not satisfied that the background material is sufficient to lead us to a conclusion that it is the routine habit of the Israeli security services to detain other family members because one brother has been arrested. In addition we are unsatisfied about the evidence in relation to the brother's involvement with Palestinian militant activity. It was not said by the claimant in his evidence that his brother (or indeed any other family members) were militants. It appears to have been the case that the brother was arrested as a result of random security checks.[20]The third and final point made by the claimant (and which was accepted by the Adjudicator) is that returnees to Israel of Palestinian origin are selected for and targeted with ill-treatment of a severity capable of amounting to persecution. No evidence was put forward to us that returnees, as returnees, are routinely ill-treated by the security forces, because they have spent time in another country. Indeed, we were not referred to any background material, save by reference to the material set out in the Adjudicator's determination. In our judgment, where it is said that failed asylum seekers or similar returnees fall into a separate category, the claimant has to adduce some specific evidence that there is systematic ill- treatment carried out by the authorities at the airport directed towards such people. In our judgment we were shown no objective evidence that records are kept of those who leave the country in circumstances where they may be treated as terrorists or involved with Palestinian militant activity. It is not suggested that the fact that the brother has been arrested will be recorded on records available for inspection at the airport. It does not therefore seem to us that there is any credible evidence that returnees fall into a separate category of risk or that this claimant, who has been absent for 2 years, would be treated as being of particular interest to the authorities.[21]For these reasons, we are not satisfied that the Adjudicator reached a sustainable conclusion. We have considered the basis upon which we are entitled to overturn the findings of fact made by an Adjudicator. In Oleed [2002] EWCA Civ 1906 , Schiemann LJ stated in paragraph 29:
"Before us it was accepted on behalf of the Secretary of State that the Tribunal should act even-handedly and should only set aside a decision of an Adjudicator who has heard the evidence if it is plainly wrong or unsustainable. I do not regard the Adjudicator's conclusion as perverse or plainly wrong nor do I think that the Tribunal was entitled, at any event by the process of reasoning that it employed, to come to that conclusion."
The threshold is a high one: plainly wrong, unsustainable, perverse, so inherently illogical as to render the decision flawed. In our judgment this determination is plainly wrong and unsustainable because the Adjudicator identified no evidence in his determination to support the three bases upon which he found that the appellant was liable to persecution or a violation of his human rights on return. Mr Stanage was unable to refer us to material capable of making good the Adjudicator's failure.[22]Accordingly, the Tribunal is permitted to intervene. In our judgment the evidence before the Adjudicator and to which we have been referred does not establish the claimant is liable to suffer persecution or breach of his human rights on return. Decision: The appeal of the Secretary of State is allowed. Andrew Jordan Vice President Approved for electronic distribution