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QUEEN v. SPECIAL ADJUDICATOR ex parte GABI ILARION RAGMAN [2000] EWHC Admin 411 (1st November, 2000)
Case No: CO/3860/99
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Wednesday 1 November 2000
B e f o r e :
THE HON MR JUSTICE SCOTT BAKER
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THE
QUEEN
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v -
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SPECIAL
ADJUDICATOR
ex parte GABI ILARION RAGMAN
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(Transcript of the Handed Down Judgment of
Smith Bernal Reporting Limited, 190 Fleet Street
London EC4A 2AG
Tel No: 020 7421 4040, Fax No: 020 7831 8838
Official Shorthand Writers to the Court)
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Linda Veloso (instructed by Figueiredo & Co for the Claimant)
Sam Grodzinski (instructed by The Treasury for the Respondent)
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Judgment
As Approved by the Court
Crown Copyright ©
MR JUSTICE SCOTT BAKER:
JUDGMENT
This is an application for judicial review of a decision of Mr L. V. Waumsley
a Special Adjudicator who on 17 June 1999 dismissed the Claimant's appeal
against the Secretary of State's decision to refuse him asylum. He also upheld
the Secretary of State's certification of the claim. The Claimant thus has no
right of appeal against the Special Adjudicator's decision.
The Claimant is aged 25 and a Citizen of Romania. He arrived in the United
Kingdom on 12 August 1998 and was granted leave to enter as a visitor for 6
months. On 21 September 1998 he was served with illegal entry papers having
admitted he had used deception to obtain entry. He then applied for asylum,
which was refused by the Secretary of State, and on 9 November 1998 he was told
he would be removed as an illegal entrant. His appeal was heard by Mr Waumsley
on 12 April 1999 when he was represented by Ms Veloso who has conducted his
application before me. The Secretary of State was not represented before the
Special Adjudicator but I have been assisted by argument Mr Grodzinski.
The Special Adjudicator found the Claimant to be an entirely credible witness
and accepted his evidence regarding events he described having taken place
prior from his departure from Romania. The oral evidence before the Special
Adjudicator comprised that of the Claimant himself through an interpreter.
The Claimant is a homosexual. He was never arrested or detained himself nor
did he have any problems with the police in Romania. His problems arose in the
following way. When he was in his fourth and final year at University it was
discovered that he was a homosexual. He was undertaking a physical education
course and intended to become a physical education teacher. The director of the
University called an assembly. All the students were present. The Claimant was
called to the front and his homosexuality was discussed. He was told he had
brought shame on the University. His evidence was that he had tried to be
discreet about his homosexuality but eventually it had come out. At the
assembly it was discussed whether he should be expelled or allowed to finish
his course. It was decided he could finish the course but he would not be
allowed to become a physical education teacher because he would represent a
danger to children.
After it became known he was a homosexual he was subjected to insults and
ridiculed. He was insulted every time he left home. He told the Special
Adjudicator it was
`like a free theatre' and he had to make a real effort to keep calm. He told
the Special Adjudicator that Romanian Society is still very hostile to
homosexuals and that the public attitude is that they are mentally insane.
There is concern to keep them at a distance because it is thought they can have
an affect on `normal' people. There was no one to whom he could turn for help.
His evidence to the Special Adjudicator was that the attitude of the Romanian
Government towards homosexuals is hostile. Under Article 200 of the penal code,
homosexual acts between consenting adults are generally no longer criminal if
committed in private but they are if the act is committed in public or has
produced a public scandal. The Claimant said the law had changed because
Romania wants to join the European Union but the public's attitude has not
changed.
The Claimant's evidence also referred to contact since he had been in the
United Kingdom with his homosexual partner in Romania. The partner had told him
he was going to leave the country because of the problems he had had with the
police. The attitude of the police towards homosexuals generally remained
hostile throughout Romania. Homosexuals are at risk of being arrested, taken to
the police station, ridiculed and beaten up. The Special Adjudicator noted,
however, that the Claimant had never been arrested or detained and had not
himself had any problem with the police or the Romanian authorities apart from
the episode in his last year at University. It is not clear how long he
remained in Romania after it was discovered he was a homosexual, but he did not
experience the events which his partner claims were rife.
The Special Adjudicator made these findings. That Romania is a country in which
homosexuals are still subject to general hostility and prejudice on the part of
the authorities and/or the public generally. Secondly that in these
circumstances homosexuals can constitute a `particular social group' within
the meaning of the 1951 Convention. He then correctly directed himself that it
was necessary to go on to consider whether the situation the Claimant would be
likely to face if he were to return to Romania would, by reason of his
membership of that particular social group, be such as to constitute
`persecution' so as to entitle him to claim international protection under the
1951 Convention.
Persecution is not defined in the 1951 Convention. Nor is there any universally
accepted definition of the term. Paragraph 51 of the U.N.H.C.R. Handbook on
Procedures and Criteria for Determining Refugee Status (1979) says that a
threat to life or freedom on account of race, religion, nationality, political
opinion or membership of a particular social group is always persecution.
However other serious violations of human rights for the same reasons can also
constitute persecution. Whether other prejudicial actions or threats would
amount to persecution will depend on the particular circumstances of each case.
The thrust of Ms Veloso's submission is that the Special Adjudicator gave no
reasons why this case dose not fit within any of the various definitions of
persecution. He does not say why the facts of this case do not amount to
persecution. Albeit the Claimant was fortunate to leave before anything more
serious happened, considerable ill treatment would be likely on his return.
`Persecution' is an ordinary English word and connotes `persistent and serious
ill treatment.' As Staughton L. J. said in Ravichandran -v- The Secretary
of State for the Home Department [1996] Imm AR 97 at
114:
"persecution must at least be persistent and serious ill treatment without just
cause by the state, or from which the state can provide protection but chooses
not to do so.'
In Horvath -v- The Secretary of State for the Home
Department [2000] Imm AR 205 at 240 Ward L. J. pointed out that:
"the threshold for establishing persecution is set high. Anything short of a
really serious flouting of the citizen's human rights and dignities will not
do. Adjudicators and appeal tribunals should not flinch from applying a strict
test."
Nolan J, as he then was, had said much the same R-v-. I.A.T. ex parte
Jonah [1985] Imm.A.R. 7 having applied to the word `persecution' its
dictionary meaning of :
"to pursue with malignancy or injurious action; especially to oppress for
holding a heretical opinion or belief"
The Special Adjudicator cited this judgment and also Professor Hathaway's
detailed analysis of persecution based on a fourfold hierarchy of human rights.
He was well aware that there was no universally accepted definition of the
word, that he should give it its ordinary English meaning and, looking at the
case in the round in the light of all the relevant circumstances, ask himself
whether a well founded fear of persecution for a Convention reason had been
established.
Mr Grodzinski cited a passage from the judgment of Aldous L.J. in
Kagima -v- The Secretary of State for the Home
Department [1997] Imm AR 137 at 140 as authority for the correct
approach in a case such as this:
"Mr Ashford -Thom, who appeared for the Secretary of State, submitted that
there word `persecution' was an ordinary English word and it was for the
Special Adjudicator to decide whether the facts as found amounted to
persecution for a convention reason. The fact that a court might, or would,
have come to a different conclusion did not mean that the Special Adjudicator
had erred in law. That only arose if this court concluded that the Special
Adjudicator's conclusion was unreasonable in the sense that it was a conclusion
that no reasonable Adjudicator could come to."
Both the other members of the Court agreed and I am satisfied it is the correct
approach for the present case. It is for the Special Adjudicator to decide, on
the facts of the case before him, whether the conduct under consideration falls
on the persecution side of the line or whether in reality it is something less.
Schiemann L.J. touched on the same question in Blanusa -v- The Secretary
of State of the Home Department 18 May 1999 (unreported C.
A.). He said at p.4 that:
"....where the evidence reveals a state of affairs where a person properly
instructed as to the relevant law could have come either to the conclusion that
there was a reasonable likelihood of persecution or to the conclusion that
there was not a reasonable likelihood of persecution then this court has no
power to interfere. Parliament has given the power to make the relevant
decision in cases such as this to a specialist tribunal rather than to this
court. In my judgment this is a case where it was open to the tribunal to come
to either of those conclusions and therefore this court has no power to
intervene."
It seems to me that the logical conclusion to Ms Veloso argument is that all
known homosexuals would ipso facto be entitled to asylum from Romania. That is
not correct. Each case must be considered in the light of its own facts. That
is precisely what the Special Adjudicator did in the present case. He
considered carefully both the Claimant's evidence and the documentary country
material before him, citing passages from the Home Office Country Assessment
and referring in detail to the report from ACCEPT, an organisation formed with
the aim of working towards acceptance in Romanian society of all individuals
regardless of their sexual orientation. He noted that a fact finding mission
conducted by ACCEPT in September 1996 disclosed a widespread atavistic attitude
on the part of the Romanian police in two large centres, but he concluded that
the hostility and prejudice to which homosexuals generally are subjected in
Romania, uncaring and cruel as it is, is not of such a nature or severity as to
amount to persecution. He reached that conclusion, he said, with regret and in
my judgment it is a conclusion with which this Court could not possibly
interfere.
The right protected by the Convention is not a right to practise as a
homosexual; it is the right not to suffer persecution for doing so.
Unfortunately for the Claimant, as this case demonstrates, there can be various
degrees of hostility towards homosexuals that nevertheless fall short of
persecution.
The remaining point relied upon by Ms Veloso is a Human Rights point. She
submits that following the recent inclusion into English Law of the European
Convention on Human Rights, through the Human Rights Act 1998, its
consideration by the Court is essential. She relies on Article 3 and Article 8.
The answer is that section 65 of the Human Rights Act 1998 does not have effect
where the decision was taken before 2 October 2000 (see paragraph (1) (7) of
Schedule 2).
In my judgment no error of law is to be found in the Special Adjudicator's
decision. Nor were his reasons inadequate. They were in my view clear and to
the point. Accordingly this claim for judicial review fails.
© 2000 Crown Copyright
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