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You are here: BAILII >> Databases >> United Kingdom Asylum and Immigration Tribunal >> AA (Persecution “Causing” Public Affection Religion Unmarried) Iraq CG [2002] UKIAT 07246 (17 March 2003) URL: https://www.bailii.org/uk/cases/UKIAT/2002/07246.html Cite as: [2003] INLR 595, [2002] UKIAT 07246, [2002] UKIAT 7246 |
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AA (Persecution- "Causing"-Public Affection-Religion-Unmarried) Iraq CG [2002] UKIAT 07246
HX43346-2001
Date of hearing: 26 November 2002
Date Determination notified: 17 March 2003
APPELLANT | |
and | |
Secretary of State for the Home Department | RESPONDENT |
"I have no reason to disbelieve what he has told me and I accept what the appellant has said in his witness statements and in the oral evidence before me. It is clear that the appellant was playing with fire when he chose to embark on a relationship with Amil in the circumstances that he found himself in within Kurdish society."
"Such individuals may very well draw upon themselves the condemnation and wrath of other members of society within an Islamic society, but that does not in my judgment classify them as a social group within the definition of the 1951 Convention. It is the attention that such individuals suffer that identifies them rather than their activities themselves. In other words a group cannot claim protection merely by virtue of the fact that persecution is the only identifying factor."
The Human Rights Appeal
Decision on Human Rights Issue
The Refugee Convention
The Respondent's Submissions on the Nexus Issue
"My girlfriend Amil has two brothers who are Islamic Fundamentalists. They disapprove of my relationship with her and believe I have brought shame on them and their family. They now want to kill me and I cannot seek protection from any authority against this desire. … I regard myself as educated and free-minded. I have been brought up in the Muslim faith but Amil's brothers think that my beliefs contradict with some of the aspects of Islam and that I have broken the rules of conduct and as such that I should be punished. I approach religion in a much different way to them. They are very strict Muslims and members of the Islamic Party."
The Issue
Assessment
"I come now to the critical question for decision which is whether on the basis of the assumed facts the appellant can properly be said to be a refugee as defined by Article 1(A2) of the Convention:
"For the purposes of the present Convention, the term refugee shall apply to any persons who … owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, he is outside the country of his nationality and is unable or owing to such fear, is unwilling to avail himself of the protection of that country … The appellant's case is that he has a well-founded fear of being persecuted for reasons of religion. His fear of serious, indeed fatal harm at the hands of the Ogboni. … it is clear too that on the assumed facts he cannot look for protection of the authorities inNigeria: they are either unable or, more probably, unwilling to protect him. The real question is whether such harm as may be befall him on return home should be properly characterised as "persecution for reasons of religion".
"It is, therefore, plain (and hardly surprising) that, whether the harm is perpetuated by the religious on the non-religious or vice versa (or indeed by one religious body against another), and whether because of adherence (or refusal to adhere) to a belief or because of behaviour, there will be persecution for reasons of religion provided always that the other ingredients of the definition are satisfied."
"This argument I would utterly reject. The notion of a "devil cult" practising pagan rituals of the sort here described is in any sense a religion I find deeply offensive. Assumed opposition to any practises on the part of a secular state; is that to be regarded as a religious difference? I hardly think so. It seems to me rather that these rights and rituals of the Ogboni are merely the trappings of what can only be realistically recognised as an intrinsically criminal organisation – akin perhaps to the voodoo element of the Ton-Ton Macoute in Papa Doc Duvalier's Haiti."
"If, as I believe, these are correct statements of Convention law (that is statements from Shah and from the Australian High Court decision in Chen Shi Hai [2000] HCA19 it plainly follows that discrimination, at least in the sense that the substantive law or its enforcement in practise is unequally on different people or different groups, i.e. essential to the concept of persecution under the Convention. Only those who for one or another Convention reason are singled out, whether malevolently or not, can qualify for asylum."
"This case fails not for want of enmity or malignity on the part of the Ogboni (these feelings, we must assume, were present in abundance), rather because that motivation (that hostility and intent to harm) was in no realistic sense discriminatory against the appellant on account of his Christianity but rather stemmed from his refusal to comply with their demands."
"In view of the unique objects and purposes of refugee status determination, and taking into account the practical challenges of refugee status determination, the Convention ground need not be shown to be the sole, or even the dominant cause of the risk of being persecuted. It need only be a contributing factor to the risk of being persecuted. If, however, the Convention ground is remote to the point of irrelevance, refugee status need not be recognised."
The position of causation in UK law where there is more than one reason for an Applicant's well-founded fear of being persecuted
"I turn, therefore, to the question of causation. What is the reason for the persecution which the appellants fear? Here it is important to notice that it is made up of two elements. First, there is the threat of violence to Mrs Islam by her husband and his political friends and to Mrs Shah by her husband. This is a personal affair, directed against them as individuals. Secondly there is the inability or unwillingness of the State to do anything to protect them. There is nothing personal about this. The evidence was that the State would not assist them because they were women."
"Once one has established the context in which a cause or question is being asked, the answer involves an application of commonsense notions rather than mechanical rules. I can think of cases in which a "but for" test would be satisfied but commonsense would reject the conclusion whilst for the reasons of sex." [He then goes on to set out an example which was particularly applicable to the gender persecution issues in the Shah & Islam case].
"We are thus brought to the potentially difficult issue of causation. Lords Steyn,Hope of Craighead and Hutton in Shahana Islam v SSHD:IAT-ex parte Syeda Shah [1999] 2 A C 629 did not find it necessary to add to the vast amount of doctrine on causation. Lord Hoffman, at 653G and 164C respectively, points out that answers to questions about causation will often differ according to the context in which they are asked. At 654H-655A and 165D-F respectively he indicates that in the present context such cases have to be considered by the factfinders on a case-by-case basis as they arise. We agree."
International jurisprudence
"… on the decisive question of the standard of causation, we accept that as a matter of principle the only proper conclusion to be drawn from the language, object and purpose of the Refugee Convention is that the Convention ground need not be shown to be the sole, or even the dominant, cause of the risk of being persecuted. It need only be a contributing factor to the risk of being persecuted."
The decision goes on to note that if the Convention ground is remote, to the point of irrelevance, refugee status should not be recognised.
Application to the appellant's case
53. Applying a "but for" test, if the brothers X and O were not Islamic fundamentalists but merely wishing to stop the appellant having any form of relationship with their sister, we do not consider there would be a reasonable likelihood they would wish to persecute or kill him in the manner threatened and accepted here. Similar logic applies with the "effective cause" test. We consider that the real risk to this appellant arises through the transgression of fundamentalist Islamic mores rather than mere association with the sister of the two possible persecutors. A commonsense approach also adopts a similar logic in that it is reasonably likely that the tenets of fundamentalist Islamic beliefs held by the two brothers in this case are the driving force behind their wish to kill or persecute the appellant rather than merely just the appellant's behaviour and the family association. Finally, as set out above, we consider it clearly a contributory factor.
Decision
A R Mackey
Vice President