Case No: C5/2007/2337
Neutral Citation Number: [2008] EWCA Civ 313
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE ASYLUM AND IMMIGRATION TRIBUNAL
[AIT No: HX/01532/2005; HX/15136/2004]
Royal Courts of Justice
Strand, London, WC2A 2LL

Date: Friday, 29th February 2008

Before:

LORD JUSTICE TOULSON
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Between:

	VT (KAZAKHSTAN)
	Appellant	
	- and -		
	
THE SECRETARY OF STATE FOR THE HOME DEPARTMENT	
Respondent	

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Mr S Cox (instructed by Hackney Law Centre) appeared on behalf of the Appellant.

THE RESPONDENT DID NOT APPEAR AND WAS NOT REPRESENTED.

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Judgment

Lord Justice Toulson:

1.	This is a renewed application for permission to appeal from a determination by two Senior Immigration Judges, dated 9 August 2007, who upheld a determination of an adjudicator, dated 15 April 2005, dismissing the appellant’s asylum and human rights appeals.  

2.	The appellants are father and son.  They are ethnic Russians and citizens of Kazakhstan.  They arrived in the UK as visitors on 15 February 1999 and claimed asylum seven days later.  It took nearly five years for the Secretary of State to reach a decision on the applications, which were refused in December 2003, and the process to date has taken nearly nine years.  

3.	The first appellant is now aged 56 and the second appellant 28.  The first appellant was born in a Soviet gulag but he became an official in Kazakhstan.  In 1987 he provided information about three corrupt senior officials which led to their imprisonment.  His problems began after their release in 1993 or 1994, by which time Kazakhstan had become an independent state.  He gave a long history of threats, abuse and intimidation at the instigation of his enemies, assisted or connived at by members of the Kazakhstan militia or other officials.  The campaign included an attempted assassination in 1994 when his car was riddled with bullets by members of the militia headed by a  Major Shcherbakov.  The Major was prosecuted but acquitted.  In the following year the first appellant’s warehouse was burgled by some business associates with the connivance of officials from the internal affairs ministry. Criminal charges were brought against the first appellant but later dropped. 

4.	The adjudicator largely accepted the first appellant’s account of events but he concluded that neither appellant had a well-founded fear of prosecution from the state nor was there any real risk of their Article 3 rights being violated on return.  He concluded that the first appellant’s suffering had come from maverick activities by criminal elements who, although in some instances state officials, did not represent the state in their activities and that his position was no worse than that of other law abiding citizens of Kazakhstan.  The AIT panel noted in paragraph 7 of their determination that Mr Cox -- who appeared for the appellants before that panel as he has appeared before me, but had not appeared before the adjudicator -- indicated he could not identify a passage in the determination demonstrating that the adjudicator had made a misdirection in law; but he submitted to the AIT, as he has submitted today, that the adjudicator had failed to address the essence of the appellant’s case.  He also submitted to the panel that the conclusion of the adjudicator had been perverse.  The panel noted that the adjudicator was highly experienced and that a perversity based challenge required a high threshold to be overcome.  The panel concluded that the adjudicator had not materially erred in law.

5.	Mr Cox’s primary submission this morning is that the adjudicator simply failed to address the issue whether the ill-treatment which the first appellant in particular received was persecution by the state, in that it could not have been carried out by those who did it unless they were acting with at least the tacit acquiescence of the senior elite who effectively run the state of Kazakhstan.  That is not how the application for a reconsideration was put, nor is it in my judgment a tenable proposition when one reads the careful determination of the adjudicator.  He plainly did spend a good deal of time considering whether either appellant, particularly the first appellant, could be regarded as a victim of state persecution.  He unquestionably addressed that issue, to which he gave his answer and his reasons for his answer.  He set out a number of pieces of evidence, in particular in paragraph 22 of his adjudication, which led him to reach the factual finding that the appellant had no well-founded fear of persecution from the state.  He also then had to address whether the state was capable of providing him with adequate protection.  He concluded that there was a system in place for the punishment of those who offend and that the appellant’s position was no worse than that of any other citizen of that state.

6.	That leads me to Mr Cox’s second attack on the reasoning of the adjudicator and this was made in the application for reconsideration.  The application put the matter succinctly in ground 5, where it was submitted that the adjudicator had erred in law in failing to apply the correct standard applicable to cases where the agents of persecution are themselves officers wearing the uniform of the state.  In that regard Mr Cox has referred me to the decision of this court in Svazas v SSHD [2002] 1 WLR 80 and 91, concluding with the passage where Simon Brown LJ (inaudible) a spectrum of cases between, on the one hand, those where the only ill-treatment is by non-state agents, and on the other, extreme where the state is wholly complicit in the ill-treatment.  Within that spectrum the question has to be addressed whether or not the state can properly be said to be providing sufficient in the way of protection.  

7.	This is essentially a factual inquiry based on evidence.  The adjudicator set out the evidence.  He set out his conclusion.  It is conceded that it cannot be demonstrated that he adopted a wrong approach to law.  The complaint is about the conclusion that he arrived at, but I see no real basis on which it can be said that the adjudicator erred in law in coming to the judgment that he did.

8.	Considering the matter on paper, Keene LJ observed the adjudicator was entitled to find that the various attacks were not condoned by the state and that there was in existence an adequate system of state protection.  He did not err in law in this approach to state protection.  The applicants can only succeed if his decision can be characterised as perverse and there does not seem to be any realistic prospect of the Court of Appeal reaching such a conclusion.  

9.	Having myself considered the papers afresh and listened to the argument, I concur with that view.  This is essentially a complaint about a conclusion of fact and in my judgment has no realistic prospect of success.  Accordingly, this renewed application is refused.  

Order: Application refused