DC (Non-traditional evangelical Group) Geogia [2004] UKIAT 00320 (15 December 2004) [2004] UKIAT 00320

UKIAT

DC (Non-traditional evangelical Group) Geogia [2004] UKIAT 00320 (15 December 2004)

[2004] UKIAT 00320 · 2004-12-15

[1]DC (Non-traditional evangelical Group) Geogia

[2004] UKIAT 00320

IMMIGRATION APPEAL TRIBUNAL Date of hearing: 11 November 2004 Date Determination notified: 15 December 2004 Before Mr G Warr (Vice President) Mr G F Sandall Mr F T Jamieson Between Secretary of State for the Home Department APPELLANT and DC RESPONDENT For the appellant: Ms M English, Home Office Presenting Officer For the respondent: Mr S Canter, Counsel instructed by O'Keeffe Solicitors DETERMINATION AND REASONS The Secretary of State appeals the determination of an Adjudicator (Mr R Pullan) who allowed the appeal of a citizen of Georgia (hereinafter referred to as the claimant) from the decision of the Secretary of State to refuse his application for asylum. This is an upgrade appeal, the claimant having been granted leave to remain in the United Kingdom until 14 August 2006.

[2]The history to this matter is as follows. On 15 October 2001 the claimant's mother arrived in the United Kingdom and applied for asylum. On 18 March 2002 the claimant's father brought the claimant to the United Kingdom armed with a valid entry clearance. On 5 April 2002 the claimant applied for asylum. This application was refused on 3 October 2002.

[3]The mother's appeal against the Secretary of State's decision was successful. She was granted indefinite leave to remain on 30 December 2002. The claimant's asylum appeal was brought to an end by the grant of leave to remain to him and accordingly a fresh asylum application was made resulting in the decision under appeal taken on 17 November 2003.

[4]The claimant's mother's appeal was allowed on the basis that there was a real risk of persecution in Azerbaijan because of her Christian faith and lack of protection by the government from Muslim fundamentalists. The claimant is, however, not to be removed to Azerbaijan – the proposal is to remove him to Georgia. Of course he will not in fact be removed, if at all, until August 2006. However, the Adjudicator correctly focused on the need to identify a current risk to the claimant in Georgia.

[5]The claimant gave evidence to the Adjudicator which is summarised in paragraphs 12 to 18 of the determination. He had been born in Azerbaijan but was taken to Georgia when only a few days old. After a few months in 1988 the claimant's father abandoned the family and the claimant's mother took the claimant and his sister back to Azerbaijan where they remained. In 1992 when the claimant was four the claimant's mother joined the Greater Grace Church in Baku, Azerbaijan. As the claimant grew older he too became a member. He describes the problems that he had in Azerbaijan including three attacks on him. He had been beaten by a teacher at his school and by three Muslim youths while on his way to a bible study class. In March 2001 he had been repeatedly slapped and kicked by men when he was returning home from a church prayer meeting carrying a bible. He deeply feared the prospect of being forced to return to Azerbaijan and feared he would be attacked again. The claimant's mother did not give evidence at the hearing before the Adjudicator because she was taken unwell. The Adjudicator also heard from a Catholic Diocesan worker called Sister Coudurier.

[6]The claimant's sister is married to a UK national and currently lives with him in the UK. She had lived in Georgia in a rented property for some two years in Tibilisi. The Adjudicator records as follows in paragraph 26 of the determination:

"… She followed the same Evangelical faith as he and his mother. During the three weeks the appellant was in Georgia his sister had no trouble from Fundamentalists and he did not assert that he had been told about any trouble at any other time. His sister and brother-in-law have now returned to the UK where they have two young children. The appellant said his mother had other distant relatives in Georgia. It was unlikely her daughter ( ) would return to Georgia with two young children. His sister ( ) now attends a Baptist church in the UK which he said was similar to the Greater Grace Church. She had been married in the Greater Grace Church. The appellant expressed grave concern about return to Georgia as he has no relatives there (other than his father with whom he does not get on well), does not speak the language and could not practise his religion because he would be separated from his mother…"

[7]The Adjudicator accepted the credibility of the oral evidence he had heard. His determination concludes as follows."40. The appellant has not so far encountered ill treatment in Georgia. He spent three weeks there staying with his brother-in-law who is also involved with the Evangelical Church. He said his sister had no trouble during that time (I am not clear whether she was actually there) and I note he did not suggest she had told him she had trouble at any other time during the two years she was there with her husband, though it must be extremely likely that she would have told him if she had, bearing in mind the trouble he had gone through in Azerbaijan. Mr Sampson suggested she might have been protected because of her British husband but I have no way of assessing that.

41. I have studied the USSD Report on Georgia dated 21 March 2003. It emerges that in spite of constitutional prohibition the security forces torture, beat and otherwise abuse prisoners and detainees, though during 2002 there were no reports that they beat members of religious minorities as in past years. However, there is widespread concern about instances where law enforcement officials have appeared unwilling to protect individuals or religious minority groups when under attack from religious extremists, in particular the extremists known as Basilists, who are followers of an excommunicated Russian Orthodox priest. Those extremists have made many violent attacks on non-traditional religious minority groups, causing damage to buildings and property and injury to persons. Most of these attacks have been on Jehovah's Witnesses and the USSD Report notes a number of cases in which police not only failed to intervene to protect such minorities from attacks by orthodox extremists but also participated in, or facilitated, the attacks. Furthermore, in general the police and Prosecutor General's office generally failed to pursue criminal cases against orthodox extremists for their attacks on religious minorities; even when they did they went very slowly. Parliament has condemned religious violence and taken steps to prevent it but the UNHCR has been deeply concerned about rising intolerance and escalating attacks on religious minorities, facilitated by government inaction. The background is that any challenge to the traditional authority of the Russian Orthodox Church, particularly from active proselytising evangelical groups, often with American or other foreign support, is very threatening. Though the Patriarchate of the Georgian Orthodox Church has strongly criticised these attacks, others have not; a senior Bishop said on television that all non-traditional religious minorities should be killed (though this was later said to be "out of context").

42. Leaving aside the theoretical issues of where the appellant would live in Georgia and what support he would have, my view in the light of the evidence including his own live testimony is that he would continue his involvement with a non-traditional evangelical group. There is no mention of Greater Grace Church in Georgia, but as that group is also referred to in some reports as Greater Grace Baptist Church, and his sister had found a home with Baptists in the UK, it is likely he would join a Baptist group. He would no doubt continue his Bible study and support of church activities, which would include propagating his faith as he has opportunity to do so.

43. Noting from the USSD Report the number of violent attacks on non-traditional religious minorities, including Baptists, and such events as the violent attack on a television studio, which had broadcast an Evangelical religious programme, I consider there is a real risk that sooner or later the appellant would find himself in a group targeted with such an attack. In past attacks parishioners have been beaten, in some cases with nail studded sticks and clubs. It is clear that whilst police have in some cases attended, they have not actively made efforts to prosecute offenders. I therefore conclude that there is a real risk of persecution, and at present there is insufficiency of protection from the state authorities."

[8]The Secretary of State appealed on the ground that the Adjudicator had failed to take into account the fact that neither the claimant, his sister nor his brother-in-law had had problems in Georgia. The Adjudicator had speculated in paragraph 42 when he had found it was likely that the claimant would join a Baptist group and this would include propagating his faith. It was also speculative to assume that the claimant would sooner or later find himself in a group which was subject to an attack.

[9]Before us the Secretary of State had lodged the US State Department Report covering events in 2003 published on 25 February 2004. The claimant's solicitors had lodged an indexed bundle containing the following documents; 1. US Commission on International Religious Freedom, Georgia Country Report, 12 May 2004. 2. Amnesty International Report 2004. 3. International Religious Freedom Report 2004 (US Department of State) dated 15 September 2004. 4. Report by the UNHCR Special Rapporteur on Freedom of Religion or Belief in Georgia dated 16 December 2003. 5. UN office for the Co-ordination of Humanitarian Affairs Briefing Note January 2004. Ms English submitted that the Adjudicator had speculated in finding that the claimant was likely to join a Baptist group. There was no evidence that he had done so in the past in Georgia or in the UK. The family had resided in Georgia without problems.

[10]Mr Canter submitted there had been no error of law. The claimant was involved with a non-traditional Evangelical group. This was likely to continue were the claimant to be returned to Georgia. It would be unreasonable for him to give up his religion. Reference was made to the US State Department Report in the Secretary of State's bundle. The government failed to control the activities of ultra conservative extremists and at times local police and security officials harassed several non-orthodox religious groups, particularly local and foreign missionaries, including members of Jehovah's Witnesses, Baptists, Evangelicals, Pentecostals and Hare Krishnas. According to page 27 of the claimant's bundle no one had been found guilty of religious violence by the Georgian courts.

[11]The determination was well reasoned. It was not an error to speculate in appeals such as this.

[12]Ms English submitted that the incidents referred to in the US report are localised and that the government generally respected the constitutional right to freedom of religion – see page 11 of the US State Department Report.

[13]At the conclusion of the submissions we reserved our determination. We have carefully considered all the material before us. The Tribunal can only interfere with an Adjudicator's determination if there has been an error of law in the Adjudicator's reasoning or in his decision.

[14]We recognise that it was not an easy appeal to hear since a large part of the evidence was focused on Azerbaijan where the Adjudicator accepted that the claimant had had problems. It is notable that in the summary of the claimant's account at paragraphs 12 to 17 of the determination the Adjudicator records no fear expressed by the claimant of returning to Georgia. He states that he deeply fears the prospect of being forced to return to Azerbaijan and feared he would be attacked again. The only reference of concerns about returning to Georgia are contained in paragraph 26 of the determination which we have referred to above and which we set out again here:

"… The appellant expressed grave concern about return to Georgia as he has no relatives there (other than his father with whom he does not get on well), does not speak the language and could not practice his religion because he would be separated from his mother."

The Adjudicator asked the claimant's representatives what the claimant's mother's position was regarding a possible return to Georgia with the claimant and he was told that the representative had no instructions on this aspect.

[15]The claimant does not say that he could not practice his religion because of persecution. Moreover, the family had not suffered any persecution in Georgia – this is also clear from paragraph 26. The Adjudicator acknowledges as much in paragraph 40 of the determination.

[16]Of course there is an element of speculation involved in any adjudication as to future events but this is no excuse for resorting to guesswork. The real risk must be established. This is particularly the case where no problems have occurred in the past and where concerns about the future are expressed as we have indicated in the extract from the determination which we have quoted.

[17]The Adjudicator had before him the US State Department Report. The Government generally respects the right to practice religion freely – see page 11 of the report. The Georgian Orthodox Church has a special role in the country's history. The report states as follows:

"While most citizens practice their religion without restriction, threats, intimidation, and the use of force by ultra conservative extremists, whom the government failed to control, restricted the worship of some, particularly members of non-traditional faiths. At times, local police and security officials harassed several non-orthodox religious groups, particularly local and foreign missionaries, including members of Jehovah's Witnesses, Baptists, Evangelicals, Pentecostals, and Hari Krishnas. On occasion, local police and security officials continue to harass or deny protection to non-traditional religious minority groups, particularly members of Jehovah's Witnesses. The police only sporadically intervened to protect such minorities from attacks by orthodox extremists. Police participation or facilitation of attacks diminished during the year; however, the MIA (including the police) and Prosecutor General's Office generally failed to pursue criminal cases against orthodox extremists for their attacks against religious minorities. On the few occasions on which there were investigations into such attacks, they proceeded very slowly."

[18]Counsel drew our attention to paragraph 93 of the report of the Special Rapporteur on his visit to Georgia between August and September 2003. It would appear that no one had been found guilty of religious violence by the Georgian courts. He was told that the authorities were at pains to point out that the police and other services were also supposed to try to ease tensions between the majority of the population and religious minorities. It was the view of the authorities that the Jehovah's Witnesses in particular were provocative citing for example "The insistent way in which Jehovah's witnesses try to enter people's homes in order to spread their message, or to their alleged habit of deliberately choosing to gather in places where there are nothing but members of the Orthodox Church, knowing that they risk being attacked." The authorities told the Special Rapporteur "that in cases where the police have not acted in accordance with the rules or have deliberately refrained from intervening, those at fault of being individually punished. In particular, the Minister of the Interior dismissed two police officers and reprimanded two other senior officials for failing to take timely action during the events of January 2003 (see above) when the police had been notified two days beforehand that the service was to take place and that the church would need protecting".

[19]The attitude of the executive and the authorities to the problem is set out at paragraph 81 of the report. The problem is acknowledged and it is acknowledged that steps must be taken to protect religious minorities and prosecute those who persecute them. Of course a will to act is not the same as taking effective action – the authorities cite general inefficiency in enforcing Georgian law – see paragraph 82 of the report. On 4 March 2003 the President of the Republic who had openly condemned acts of violence and religious intolerance issued Decree No. 68 approving a plan of action on strengthening human rights protection of minorities permanently residing in Georgia for 2003-2005. The main objectives of the plan were to restore the historical traditions of tolerance and peaceful co-existence among members of different ethnic and religious groups in Georgia, to promote and protect human rights and the freedoms of minorities, to encourage civil integration within Georgian society, and to forestall all displays of intolerance. The Orthodox Church's attitude to co-existence is referred to in paragraph 34 of the report. The church stressed that because of its history Georgia was a country of religious tolerance in which a number of religious communities had evolved without friction side-by-side for centuries. There is however a distinction between traditional religious communities and other newer expressions of religious belief. It is recorded that the manner in which the Orthodox Church's attitude to the practices of religious minorities varies depending on whether it is expressed by parish and particularly rural clergy or the top of the ecclesiastical hierarchy. The Orthodox Church deplored all violence and pointed out that the chief instigator of the acts of religious violence was excommunicated in 1997.

[20]There is plainly a problem in Georgia affecting religious minorities and it is recorded in paragraph 61 of the report that acts of intolerance from religious violence really began in 1999, "and have grown more serious and diverse since". It is no doubt in response to this that the government has tabled the measures that it has.

[21]The Adjudicator in our view erred in concluding as he did that the claimant faced a real risk of persecution on return. Firstly, there was no evidence that either he or his family had suffered in Georgia in the past. The Adjudicator was not justified in assuming that the claimant would be persecuted in the future for the reasons he gives in his determination. His approach went well over the boundaries of drawing permissible inferences from the material before him. Even if an element of speculation is appropriate in determining asylum appeals, the speculation must have a sound basis and must not be mere guesswork or conjured up out of thin air. The Adjudicator failed properly to analyse the evidence before him or to establish why the claimant would face a real risk of persecution as opposed to a mere possibility.

[22]For the reasons we have given, the appeal of the Secretary of State is allowed and the decision of the Adjudicator is reversed. G Warr Vice President 17 November 2004 Approved for electronic distribution