Gonzales, R (on the application of) v Secretary of State for the Home Department

MR JUSTICE STANLEY BURNTON: This is an application for judicial review of the decision of the Home Secretary to refuse to treat representations made on behalf of the claimant, on 28th July 2004, as a fresh asylum claim.

The original claim for asylum was the subject of a refusal by the Home Secretary by letter dated 12th March 2002. The basis of the claim was that the claimant had been involved with a political party, in opposition to the government, a political party called the Union Patriotica ("UP"), in Colombia, which is the country of nationality and origin of the claimant, and that members of his family had, because of the association of the family with a political party, been killed by the police or other members of the forces of the government.

The claim was rejected on that occasion by the Home Secretary on grounds of credibility, including doubts as to whether what had been described by the claimant as having happened to him was true, and doubts as to whether the alleged association with the UP would lead to the threat to his life which he asserted. The claimant did, at that stage, rely on the deaths of four members of his family (his father, a brother and two cousins) and there were produced death certificates which, in their terms, confirmed that three of those deaths had been violent, one by a knifing or the like and one by a shooting, although the father's death certificate did not give rise to a cause of death.

The Home Secretary took the position that the fact that there had been violent deaths did not mean that the authorities were responsible for those deaths. In the letter the Secretary of State accepted, as he had to, that there were public order problems in Colombia, partly due to terrorist groups, partly due to drug traffickers, partly due to others, but he asserted that there was, generally speaking, a sufficiency of protection. Sufficiency of protection, of course, does not mean that there is no risk to the citizens and residents of the state in question.

The claimant appealed to an adjudicator whose decision was promulgated in December 2003. The adjudicator rejected the credibility of the claimant. He applied the lower standard of proof appropriate to asylum claims, but nonetheless found that the claimant's version of events as happened to him was not credible. He referred to the deaths of the four members of the claimant's close family. So far as those were concerned, in paragraph 14, as I read his adjudication, he did not there reject the contention that the deaths had occurred, but pointed out that there was no evidence that those deaths had been caused by the authorities. The remainder of that paragraph, however, indeed addresses, at least in part, that issue.

In paragraph 15 the adjudicator dealt with the death certificates in terms which are by no means usual. He said, however, that he placed no weight on the death certificates and went on to point out that assuming one was genuine it itself cast doubt on part of the claimant's story.

In paragraph 16 he dealt with the objective evidence as to the position of UP, a political party which had significantly declined in importance, and indeed faded from significance, since 1999.

He concluded by stating that there was no evidence that the appellant was ever of interest to the authorities and that there was no evidence that as a failed asylum seeker he would be persecuted on return so that the claimant and his family could be returned to Colombia.

The claimant sought leave to appeal to the Immigration Appeal Tribunal which refused permission to appeal by a decision dated 18th February 2004. The result of that is that, in the absence of fresh evidence, both the Home Secretary and the claimant are bound by the decision of the adjudicator, including his finding as to the credibility of the claimant's claim.

What happened within days of the decision of the tribunal was that another brother of the claimant disappeared. His disappearance appears to have taken place on 15th February 2004 and was the subject of two newspaper articles, the genuineness of which is conceded.

The new claim is said to be based on two items of evidence. The first is the disappearance of the claimant's brother, and the second is the acceptance by the Secretary of State that a number of documents, including those newspaper articles, are genuine.

It would appear that the Secretary of State accepts also the genuineness of the death certificates. So far as the test for a fresh claim is concerned, that is set out in the Immigration Rules which provide, in Rule 346, that:

It provides that:

It is not suggested that the fresh material is, insofar as it relates to the disappearance of the second brother of the claimant, not credible. Nor could it be contended that the evidence of his disappearance was available when the previous application was refused since it had not then occurred. What is said is that it is not significant in the context of the decision made by the adjudicator in this case and the fresh claim as made to the Secretary of State.

So far as the concession made by the Secretary of State as to the genuineness of the documents is concerned, I have considerable difficulty in seeing how that can constitute in itself new material. Any new material is likely to be the material submitted to the Secretary of State which leads him to change his mind. In the present case, for example, there was an expert report which confirmed the authenticity of the newspaper reports of the second brother's disappearance.

A concession as to a fact will generally not be binding on the Secretary of State, who may withdraw it, and certainly will not be binding on an adjudicator, if a fresh claim goes forward and is the subject, assuming it is rejected by the Secretary of State, of a fresh appeal to the adjudicator. The adjudicator will himself determine, on the basis of the submissions made to him, whether or not a document is authentic or not, and the weight to be given to any document put in evidence. However, if the Secretary of State accepts before the adjudicator the authenticity of a document it is very difficult, if at all possible, to see on what basis an adjudicator could reject it.

The Secretary of State, having decided that the fresh material put before him is not significant, the basis of any challenge to that decision must be, as the authorities lay down, a rationality challenge. Although, in circumstances in which the life of the claimant is concerned, that rationality challenge can be expected to be far more intense than when the subject matter is of lesser gravity.

The fresh representations made to the Secretary of State were contained in a letter of 2nd September 2004 from his new solicitors. The basis of it was that the disappearance of the claimant's brother was evidence that his fear of persecution by the authorities in Colombia was well-founded. It is to be remembered that the adjudicator dealt with the deaths of the claimant's relatives principally on the basis that there was no evidence whatsoever other than pure assertion on the part of the claimant that the authorities were responsible for those deaths. The fact that Colombia is a country where there are risks to life from other sources in no way affects the validity of that conclusion and provides some support for it.

There is, similarly, no evidence that the death of the second brother is associated with the authorities other than the fact that he is another family member to have disappeared and presumably met his death in suspicious circumstances. But there remains no evidence all that it was the authorities who caused the second brother's death.

In my judgment it was certainly rational and within the range of decisions open to the Secretary of State for him to decide that, in the absence of any other material, the conclusion of the adjudicator (that there was no evidence that the authorities were responsible for the deaths of the family members whose deaths were before him) could not be challenged.

The same position applies in relation to the death of the second brother. There is no evidence that the authorities were associated with that death. In those circumstances, in my judgment, his death, although tragic, does not lead to the conclusion that the Home Secretary has been irrational, perverse, or acted unlawfully in considering the fact of the second brother's death in the same light as the adjudicator considered the other deaths.

In that connection the Home Secretary was clearly entitled to have regard to the other matters referred to in his original decision letter and in the adjudicator's decision which led to the general rejection of the claimant's credibility.

The case has been put forward somewhat differently, on behalf of the claimant, by Mr Morgan, in that he has submitted that the fact that a further family member has disappeared is inconsistent with the position of the Secretary of State that there is adequacy of protection in Colombia. There has, however, not been any criticism of the general conclusion of the Secretary of State that there is, in general, adequacy of protection in Colombia.

The fact that a person has died, or even that a number of people have died, does not of itself give rise to a necessary conclusion that there is an inadequacy of protection. But, in any event, no assertion of inadequacy of protection was clearly made by the claimant's solicitors when the fresh claim was put forward. The fresh claim was put forward on the same basis as the original claim, namely that, as a result of his association with an opposition political party, the claimant was the subject of persecution before he left Colombia and would be, again, if returned.

In those circumstances I see no basis for a conclusion that the Secretary of State has been irrational or acted unlawfully in considering the new material in the way he has. It follows that this application for judicial review is dismissed.

MR KELLAR: I have no application to make.

MR JUSTICE STANLEY BURNTON: Good, thank you.