Bayangol v Secretary of State for the Home Department

J U D G M E N T

1. THE VICE PRESIDENT: This is an application for permission to appeal against a decision of the Immigration Appeal Tribunal on 5th January 2005 which allowed the Secretary of State's appeal from a decision of an adjudicator on 21st August 2003, who had allowed the applicant's appeal on human rights grounds and Geneva Convention grounds from a decision of the Secretary of State on 6th May 2003, who had refused the application on both grounds.

2. The facts are fairly clearly set out in the decision of the adjudicator. This was yet another of these cases where the Secretary of State was not represented before the adjudicator (although the adjudicator had a statement of his written grounds for contesting the appeal).

3. The appellant is a citizen of Mongolia, who is now 36. His asylum claim was based on an allegation that he had a well-founded fear of persecution based on his previous persecution on grounds of imputed political opinion. He arrived in this country in June 2002 and applied for asylum quite quickly. His evidence was that, in the early 1990s, he worked as a Customs officer. A friend of his from his military service asked him to help out with arrangements to import some fruit drinks, which he did. He then discovered that it was a consignment of spirits and not fruit drinks. There was an incident in a hotel where three men, who said that they were respectively a police officer, a judge and a prosecutor, told him this and offered him $2,000, but he would not take the money. He later reported the matter to his night shift inspector, who called the police. The spirits were found. His friend was arrested, but the other men could not be found. When he reported to work the next day he was taken in for questioning by the police. He took the blame for giving clearance. The documents were in his name. His account of the men at the hotel was not believed. He was originally detained for smuggling as a suspect for fourteen days. He was tortured in detention by the police and by criminals. He was not allowed legal representation or visits. He was then released, on bail apparently, but, although he complained to the state prosecutor, no action was taken against the people who beat him when he was in detention.

4. On 27th April 1993 he was attacked and hit on the head with a heavy weapon. He lost consciousness, was taken to hospital, was treated for head injuries and, unhappily, developed an infection. He was left with mental and spinal cord problems and other medical problems.

5. In April 1995, when he had recovered from his hospitalisation, he was charged under Article 275 of the Mongolian Criminal Code and sentenced to eighteen months' imprisonment. He was stabbed by inmates in prison and he was put under pressure in prison because he knew the police used prisoners for further investigations. He was released in October 1996, and that was the end of that series of events.

6. He then left Mongolia and studied in South Korea, but the Mongolian Mafia discovered where he was and threatened his family, demanding the money which had been lost in the smuggling operation. They regarded his family as having money because they could afford to send him to study in South Korea. So he then returned to Mongolia and had to sell a number of his possessions to pay the $30,000 the Mafia were demanding. He and his father then set up in business and founded a company to run tourist industry services.

7. In October 2001 he was invited to a reception with businessmen in a local restaurant, where he found that not only were there directors of big companies and high officials of legal institutions at the reception but also people from the Mafia. To protect his family, he promised to give no information about the Mafia, and he also promised to pay the Mafia 30% of his income from his new business because he realised he would get no support from the police. A big dispute erupted at the restaurant - there is reference in the evidence to a fight with knives and shooting - and he was arrested and detained for two months charged with smuggling, tax evasions and fighting at the restaurant. Most of the people arrested managed to secure their release - the IAT said that these were members of the Mafia - and escaped from Mongolia, but the appellant was threatened with death if he gave any evidence against them.

8. The IAT said that he was then granted bail on conditions. His details were passed on to all the Mongolian border units and so he could not escape the country and was required to report daily to the police at 9 am. He had a serious spasm in February 2002 and was hospitalised. He was questioned in hospital intermittently. He asked his wife to acquire a passport for him. With her help and that of his children and a friend he managed to escape and eventually crossed the border, reached Beijing and then flew from there to London. He told the adjudicator that he feared his life would be in danger if he was returned to Mongolia, based on his previous ill-treatment; and he feared the Mafia and also feared state agents, who were corrupt and were unwilling or unable to offer him adequate protection.

9. The adjudicator considered that the appellant, even if he was naïve, was a witness of truth. She was supported in her findings by objective country evidence that indicated levels of corruption in the police, authorities and the judiciary, and problems with arbitrary arrest and detention. The Commission of the Mongolian State had criticised the government for Human Rights Abuses. It also faulted Parliament and the courts for their failure to protect human rights properly. There was evidence that conditions in prison were poor, overcrowding was rife, leading to problems with disease, and there were complaints of torture by non-governmental organisations - torture being used by police interrogators in pre-trial detention centres. There was also a reference in the objective evidence to little public legal aid.

10. The Secretary of State had asserted to the adjudicator that the appellant would be protected from the Mafia and would be able to identify the real culprits. He had said that the police were good in detective and investigative operations. But the adjudicator said that the essence of the appellant's claim was that the police and the authorities were corrupt and had been involved in a cover-up. He said that in his own case due procedures were not followed because of the huge network of corruption and pressure from above. That was why he was not allowed legal representation and that was why the prosecutor failed to take appropriate action about illegal interrogations and beatings back in 1993. The adjudicator accepted the appellant's account of the facts. The appellant had produced documents which evidenced his prison sentence and his medical treatment for a head injury. He also had explained to her satisfaction why he could not have left Mongolia earlier. She held that internal flight was not an option if his claim was otherwise justified.

11. The adjudicator, after accepting the appellant's account of what happened in Mongolia, said that he would be at risk on return as he had already suffered persecution from both state and non-state agents. She did not go any further into identifying the risk to which she referred, but she said that, given her findings on his claim and the way the authorities had behaved towards him, his fear of persecution was for an imputed political opinion and he would face mistreatment on return for that reason.

12. An issue arose before the IAT whether the adjudicator was entitled to find there was an imputed political opinion. The IAT held that it was not open to the adjudicator to find he risked persecution because of his perceived political opinion. Although Miss Weston has referred us to a number of English and overseas authorities on the issue of imputed political opinion, I would not grant permission to appeal on the basis that the IAT was wrong to find that this was not a case which was viable under the Geneva Convention in relation to persecution for an imputed political opinion, and there were no other Geneva Convention grounds asserted.

13. The human rights claim raises different issues. The adjudicator dealt with the matter quite briefly. She referred briefly to the decision of the Strasbourg Court in Chahal , saying that that assisted in relation to the standard of proof. She said that, in the light of her decision on the asylum claim, "it follows that Article 3 is also engaged in the present case. The human rights claim stood or fell with the asylum appeal here." She then went on to find that Article 6 would be breached on his return. The IAT dealt with that finding quite briskly and said that, although his previous period of imprisonment understandably gave him a very low appreciation of the Mongolian justice system, there was no basis for finding that he was actually awaiting charge for any offence or that the charges would result in an unjust prosecution or an unfair trial and Article 6 was not in issue.

14. I will come back to the question whether he was awaiting a charge, but, in my judgment, the IAT was entirely justified to find as a matter of law that Article 6 was not in question given the way that the authorities approached Article 6 in this type of case.

15. That leaves Article 3, because there is no suggestion that this is an Article 2 case. The difficulty which arises under the IAT's consideration of Article 3 is that, although the adjudicator found that the appellant had been charged with a number of offences arising out of the episode in the restaurant and the IAT interpreted the adjudicator's findings as meaning that, after a period of two months in detention the appellant was then released on bail, the IAT (in paragraphs 29 and 30 of its determination) adopted an approach to the facts found by the adjudicator which in my judgment is open to examination by this court. In paragraph 29, after referring to the way that the appellant's previous period of imprisonment had understandably given him a very low appreciation of the Mongolian justice system, the IAT said:

"This does not get round the fact that the Adjudicator had no basis for finding that the appellant was actually awaiting charge with any offence or that on this occasion the charges would result in an unjust prosecution or an unfair trial."

Then in paragraph 30 the IAT went on to refer to the only potential risk being that of further pressure from the Mafia.

16. In my judgment, on the adjudicator's findings, it did appear that the adjudicator held that the appellant was charged with offences as a result of the episode in the restaurant. Where the adjudicator's findings are unsatisfactory is that the lack of findings as to what would be the risk on return if the appellant was returned to Mongolia having breached his bail conditions and facing charges of the type that the adjudicator described in her determination. It appears to me to be arguable that the IAT erred in law in the way that they approached this part of the case. This is a thoroughly unsatisfactory situation. In my judgment, it may well be considered desirable for the matter to be remitted to the AIT for a reconsideration both of the facts and of the law in relation to this part of the case. However, the only course which is open to us today is to grant permission to appeal. I would limit the grant of permission to the Article 3 claim in so far as it relates to what may befall the appellant were he to be returned to Mongolia.

17. LORD JUSTICE BUXTON: I agree that permission should be granted, but, like my Lord, I very much hope that, in the light of that order and for the reasons that my Lord has indicated, the parties will be able to agree that this matter is remitted to the AIT for the consideration that my Lord has indicated.

18. There is no real indication in this case that the adjudicator properly appreciated the very high standard that has to be reached before an Article 3 claim can be maintained. That is a matter that will have to be further considered on remission and the matter in respect of which I fear the applicant should be warned as to the difficulties that he faces. But, in the light of the way in which the facts were handled, particularly by the Immigration Appeal Tribunal, it is right that the whole matter should be reconsidered as my Lord has ordered.

19. MISS WESTON: I am most grateful. In light of your Lordships' observations, I am wondering if I might ask for a detailed assessment of the appellant's publicly funded costs?

20. LORD JUSTICE BUXTON: You are publicly funded at the moment, are you?

(The Bench conferred.)

21. THE VICE PRESIDENT: You may certainly have one so long as it does not result in a large quantity of assessments and the cost judges being troubled more than once if the matter does have to go for a substantive hearing.

22. MISS WESTON: I understand your Lordship's observation and will pass it on to my solicitors.

23. THE VICE PRESIDENT: Two hours; three Lord Justices - at least one with asylum expertise.

ORDER: Application granted.