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	England and Wales Court of Appeal (Civil Division) Decisions
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> Najjemba, R (on the application of) v Secretary Of State For Home Department [2002] EWCA Civ 1082 (15 July 2002) URL: http://www.bailii.org/ew/cases/EWCA/Civ/2002/1082.html Cite as: [2002] EWCA Civ 1082

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IN THE SUPREME COURT OF JUDICATURE
CIVIL DIVISION
ON APPEAL FROM THE HIGH COURT
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT LIST
(Mr Justice Sullivan)

		The Royal Courts of Justice The Strand London Monday 15 July 2002

Monday 15 July 2002

1. LORD JUSTICE LATHAM: On 20 December 2000 the applicant arrived in this country from Uganda. She claimed asylum on 31 January 2001. Although she did not say so in the first instance, her claim for asylum was based upon dreadful events that occurred on 1 October 2000.
2. She was a shopkeeper at that time, living with her son, and separated from her husband. It would appear from the material before the adjudicator, and originally the Secretary of State, that the son had had some connection with the Allied Democratic Forces, the ADF, in the area in which the applicant lived. Four soldiers, suspecting that, came to her house where her son was. The soldiers questioned both her son and herself and then beat her son severely in front of her. It was clear to her that he was badly injured. The soldiers then searched the house and found that there was a case under her bed. They demanded that she fetch the key to open it. She fetched the key and as she was going to open the case, she was raped successively by two of the soldiers. They then left, taking her son, whom she has never seen again. On the next day, a friend of hers said that it was likely that her son had been killed by the soldiers. She was told, she said, that the soldiers would be likely to come back to her, particularly once they had seen the documents which were contained in the case they had taken from the house.
3. Her claim was originally rejected by the Secretary of State and then heard by the adjudicator on appeal. The adjudicator, having heard all the evidence, was prepared to accept the account that the applicant had given of the rape and the circumstances in which it occurred, as I have described. However, she came to the conclusion that there was nothing in the evidence before her to suggest that the incident was anything more than a very serious criminal act of sexual gratification on the part of the soldiers. She did not consider that there was "any reasonable likelihood" (which was the phrase she used) that the security forces would have returned to arrest the applicant and the fear asserted by the applicant she concluded was not well-founded.
4. The ultimate finding of the adjudicator was that the appellant's evidence did not establish that she had ever been of any interest to the authorities and there were no substantial grounds for believing that she was at real risk of torture or inhuman or degrading treatment, or punishment on her return; in particular, the adjudicator concluded that if the applicant returned to Kampala the evidence was that she would be able to remain there in relative safety. In the circumstances the adjudicator refused her appeal, both under the Refugee Convention and so far as her claim was based upon the Human Rights Act.
5. The applicant appealed to the Immigration Appeal Tribunal, asserting that she indeed was at risk and the conclusions of the adjudicator could not be sustained. The Tribunal was unable to discern any arguable point of law in the grounds of appeal and found that the evidence upon which the adjudicator came to her conclusions fully justified those conclusions. The applicant then applied for judicial review of that decision by the Immigration Appeal Tribunal. It was refused on paper and was refused at an oral hearing before Sullivan J, who concluded that the decision of the Immigration Appeal Tribunal, essentially the decision of the adjudicator, was a decision which did not disclose any error of law. It is in those circumstances that the applicant applies for permission to appeal to us today.
6. It has to be remembered that this court can only intervene if, as indicated in what I have said about the approach of Sullivan J, there has been any error of law. The essential findings and conclusions that are to be made in such circumstances are the task of the adjudicators, supported by the Immigration Appeal Tribunal.
7. Mr Macdonald QC, on behalf of the applicant, has submitted to us that there were clear errors of law in three essential respects. The first raises an argument of a wide-ranging nature which was not raised either before the adjudicator or before the Immigration Appeal Tribunal. It is essentially to the effect that there was clear evidence before the adjudicator, which the adjudicator herself acknowledged, that, especially in the area where the applicant lived, soldiers were regularly committing criminal acts, but in particular committing rapes against women. Accordingly, he submits, the position of women in that area is one which is such as to justify the conclusion that they form a social group which the government is either unwilling or unable to protect adequately, because the evidence is such as to justify the conclusion that the activities of the army, in particular, go unpunished. The submission is that the position of women can therefore be equated to the position of women in Pakistan, which the House of Lords was prepared to conclude justified the conclusion that women formed a social group in Pakistan who were the subject-matter of persecution.
8. It is to be remembered that in that case there was extensive evidence, explored at all levels, as to the position of women in Pakistan which clearly justified the conclusion, as their Lordships found, that there was systematic persecution of women as a social group. It was upon that basis that their Lordships came to the conclusion that they did. In the instant case the evidence goes no further than that which I have related, namely that in the area in the north where there is civil unrest, the soldiers are acting on many occasions with uncontrolled lawlessness, including rape. It follows, therefore, that rape is an offence to which women there are exposed; but there is, it seems to me, nothing in the evidence which goes so far as to show that, because of that fact, they could possibly be described as a social group the subject of persecution in Convention terms. The incidence of rape is an example of lawlessness generally by the army, in so far as the evidence that we have is concerned. I would not consider that the material which is before this court could possibly justify the conclusion, unexplored as it has been beyond that to which I have referred, that the position of women in Uganda, or even in the area of Uganda to which reference has been made, can be equated to the position of women in Pakistan, as indicated in R v IAT and SSHD ex p Shah; Islam v IAT [1999] 2 AC 629. It follows, it seems to me, that Mr Macdonald, in order to establish that the applicant has any arguable case for saying that she was subject to rape -- which is undoubtedly inhuman and degrading treatment -- for a Convention reason, must found it upon some other limb of the Convention, such as political activity, perceived or otherwise.
9. The evidence which the adjudicator heard seems to me to have pointed inexorably, as she found it, to the conclusion that this was not a matter of persecution. This was simple and dreadful lust. In those circumstances it does not seem to me that first argument of Mr Macdonald can possibly succeed in this court.
10. The second argument that he puts before the court is essentially that the adjudicator failed to approach the evidence, when coming to the conclusion which she did, by taking an overall look at the evidence in the way suggested by this court in the case of Karanakaran [2000] INLR 122. That approach, Mr Macdonald submits, requires the adjudicator effectively to exclude the possibility of there being a political reason before concluding that a Convention claim has not been properly made out.
11. There is nothing, it seems to me, in the adjudicator's decision to support the conclusion that the adjudicator might have failed to approach her assessment of the evidence in the appropriate way. The conclusions that she came to I have already referred to. She, it seems to me, properly reflected the tests to be applied, as indicated in decisions of this court and of the House of Lords, when she considered whether or not, for example, there was any reasonable likelihood of the security forces returning to arrest the applicant and whether she considered that there were any substantial grounds for believing that the applicant would be at real risk of torture or inhuman or degrading treatment were she to be returned. In those circumstances, I cannot accept Mr Macdonald's argument that in some way or another this adjudicator erred in her approach to that evidence. The fact is that she clearly was impressed by the account that had been given by this applicant and was prepared to accept what she said, and approached her assessment of the risk of the applicant being subjected to any ill-treatment were she to be returned in an appropriate and proper way.
12. Finally, it is submitted by Mr Macdonald on the applicant's behalf that that conclusion to which I have referred was one which no reasonable tribunal could have reached on the evidence that was before it. I am afraid I cannot accept that submission, any more than Sullivan J was able to accept it when he refused the application orally in the Administrative Court. The material before this adjudicator fully justified the conclusions that she reached. There was nothing in what she said or did to justify the conclusion that she made any error of law. The question at the end of the day that has to be asked is whether or not on that material it could sensibly be said that the adjudicator was arguably wrong to have concluded, first, that there was no Convention reason established for the rape, and I have no doubt that there was nothing which could suggest that she was wrong in coming to that conclusion on the material before her; secondly, that there were no substantial grounds for believing in any event that the applicant would be at risk of torture or inhuman or degrading treatment, or punishment on her return, when considering the issue of this applicant's human rights, and I do not consider that she could properly be said to have been wrong in that respect.
13. For those reasons, despite the fact that there is no doubt whatsoever that, not only in relation to herself but in relation to her son, this applicant has suffered enormously, there is nothing which in my judgment could properly found an appeal which had any prospect of success in this court. Accordingly I would refuse this application.
14. LORD JUSTICE SIMON BROWN: This applicant suffered a horrific sexual attack by soldiers in Uganda. The adjudicator so found. We should not be thought to be minimising the enormity of that experience and her suffering. The adjudicator also found, however, that this was a gratuitous act of violence, a crime committed in the course of her son's arrest, which was itself a brutal act. The adjudicator expressly rejected the case that the attack upon the applicant was politically motivated. The claim under the asylum Convention necessarily therefore failed. The claim under the Human Rights Convention likewise failed: the adjudicator expressly found that the authorities in Uganda are not interested in the applicant and concluded that:

"If she returns to Kampala the evidence is that she can remain there in relative safety and with the protection of the authorities from unlawful actions of soldiers and others who may well operate with a degree of impunity in the North and West of the country."

15. The applicant's application for permission to appeal to the Immigration Appeal Tribunal was refused. Her application for permission to apply for judicial review of that refusal was rejected twice, initially on the documents by Stanley Burnton J and thereafter, following an open court hearing, by Sullivan J, who gave a full and accurately reasoned judgment on 15 April 2002. Against that decision, the applicant in turn sought permission to appeal to this court. Her application was again refused, this time initially by my Lord, Lord Justice Latham on the documents on 24 June. It is renewed yet again today.
16. My Lord has now explained more fully why the adjudicator's determination cannot be impugned in point of law, that being the only basis upon which this matter can be carried further. I can only agree. There is simply nothing in Mr Macdonald QC's argument, an argument containing altogether more extreme and far-reaching submissions than it has ever been sought to raise before, which could properly lead this court to take a different view from that consistently taken hitherto. There is really no alternative but to refuse this final application.
ORDER: Application refused