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||Neutral Citation Number:  EWCA Civ 1628
IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT
QUEEN'S BENCH DIVISION
(Mr Justice Keith)
||Royal Courts of Justice
Thursday, 10 October 2002
B e f o r e :
LORD JUSTICE KENNEDY
LORD JUSTICE BUXTON
LORD JUSTICE KEENE
||ANUFRIJEVA and Another
||IMMIGRATION APPEAL TRIBUNAL and Another
(Computer-Aided Transcript of the Stenograph Notes of
Smith Bernal Wordwave Limited
190 Fleet Street, London EC4A 2AG
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MR M GILL QC and MISS N BRAGANZA (instructed by Ole Hansen & Partners of London) appeared on behalf of the Appellant
MR N GIFFIN (instructed by Treasury Solicitor) appeared on behalf of the Respondent
HTML VERSION OF JUDGMENT
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- LORD JUSTICE BUXTON: The appellant, Mr Anufrijeva, is a citizen of Lithuania born in November 1955. He arrived in this country and sought asylum in 1999. He was accompanied by various members of his family, one being his daughter who was, until a comparatively late stage of these proceedings, a joint applicant with her father but she has now withdrawn her application, or it has been otherwise dealt with, in circumstances that no longer concern this court.
- The matter comes before this court in the form of an appeal from a decision of Mr Justice Keith in judicial review proceedings. Those proceedings were brought in an attempt to review a decision of the Immigration Appeal Tribunal not to grant permission to appeal to that tribunal against a decision of a special adjudicator, Mr P D King, in January 2001, in which he found it not established that the applicant or appellant had grounds for fearing persecution for a Convention reason were he to be returned to Lithuania.
- I shall shortly have to explain the facts of the case in some detail because of the form the appeal has taken. It would be convenient to note now that Mr King did not doubt there was a danger of what could be described as persecution and indeed, in one respect, torture being inflicted on the applicant, but he was not persuaded that the events described to him could be described as persecution for a Convention reason.
- I turn to the facts, which are not altogther usual. The appellant is of Russian origin but his nationality is now Lithuanian. The story goes back to 1991 when quite accidentally the appellant became involved in a dispute between two prominent politicians in Lithuania. What occurred, and how the appellant became embroiled in it, was set out clearly in paragraph 12 of the adjudicator's determination which it will be convenient to read:
"In brief summary the essence of his claim as set out in the interview was that he became an unwilling pawn in a political confrontation between two prominent politicians in Lithuania. First was the chairman of the League for Freedom in Lithuania Antanas Terleckas. The other was the leader of the Communist Party in Lithuania, Mr Brazauskas. There was a legal case going on in 1991 between the two men. The lawyer for the former was a man called Jonas Gelazius. The appellant had encountered the lawyer quite by chance on 24th September 1991. The lawyer was in a drunken state throwing water out of a window of some flats on the heads of passers-by. Because of that behaviour the appellant had called the police who had arrived after a struggle, dragged Mr Gelazius out of the house. Subsequently Mr Gelazius was injured in a hit and run incident and allegedly important papers relating to the on-going case had been taken. Allegations began to be made by a number of individuals particularly by the lawyer that the appellant had not been an innocent passer-by at the time of his first arrest by police but that the appellant was involved as a KGB agent therefore to discredit the lawyer and or injure him so as to compromise the case that existed between the two politicians. The appellant and his family were investigated in relation to the matter - no prosecution followed. What followed thereafter, however, was a very lengthy catalogue of incidents of harassment by the authorities, by the police and by criminal elements. The nature and frequency of such matters leading the appellant to believe that they were not coincidental but were related to a sustained effort on the part of the authorities either to seek revenge or punish him by reason of his perceived involvement in the early matters."
- It is necessary to explain what those incidents were, because they formed a prominent part of the case in this court. It should however first be said that while the investigation referred to in the adjudicator's summary was in process the appellant, according to his account which was effectively accepted in all respects by the adjudicator, was twice interviewed by a gentleman who was then the prosecutor general, a Mr Paulauskas. I mention that because it involves a point to which I shall have to return. As the adjudicator recorded, despite the interview of the appellant and the apparent suspicion directed at him, no formal action was taken against him by the authorities.
- While those inquiries were in train in 1991 the appellant was involved in a traffic accident caused, as he thought, by his being followed by a motor vehicle. He went to the police to give an account of this matter and was beaten up by them and accused of driving at high speed. He was required to pay a fine and was released. That was in November 1991.
- In what appears to have been the middle of 1993, when the appellant was living in a flat in a sought-after area near the American Embassy in Lithuania, he was visited by a person from the Immigration Department who effectively forced him to sell the flat. While that was going on a drunken policeman, in August 1993, crashed into his car and the car of his neighbour. The appellant complained but his complaint was not investigated. His neighbour was immediately accommodated.
- In February 1994 he was stopped by police, documents were taken from his car and again he was beaten up. He complained at the prosecutor's office, and difficulties were caused about whether the complaint would be received when written in Russian rather than Lithuanian. Far from the complaint being acted on, he was told he had made undue allegations against an innocent police officer. That matter was clearly - and there was correspondence he was able to produce to the adjudicator - pursued by the appellant at some length. In May 1994 he was stopped several times by the police, beaten up and fined. Various acts of damage were inflicted on his car in that year; he did not know by whom.
- In 1995 he bought a flat - again in Vilnius where he had previously lived - but had to sell the flat shortly thereafter because of hostility expressed by his neighbours. In March 1996 his car was again crashed into. The police discovered the perpetrator; he turned out to be a person who worked at the airport, a Lithuanian security officer, and the appellant was not successful in obtaining redress. In June 1996 his flat was broken into and personal papers were taken. Another break-in took place in July 1996. In the winter of 1997 he was stopped by the police and told that his car was impounded against the payment of a debt.
- Various other events occurred. In January 1998, March 1998 and again in May 1998 he was summoned to the police station to account for how he had obtained his personal documents. His account of this given to the adjudicator, and summarised by the adjudicator in paragraph 45, was in the following terms:
"He became concerned with the increasing threats of harassment that had been received. He felt intimidated and undermined. He believed that he was being deliberately targeted by the police as a result of his involvement in a conflict between high level politicians and because he was Russian. The police had links with organised crime and with corruption."
I interpose to say that we have carefully read, as asked, the whole of the appellant's statement that he put before the adjudicator and, in my judgement, the paragraph I have just read is an accurate summary of that part of that statement.
- Because of all this in August 1998 he and his family left Lithuania, leaving behind everything with which they had been dealing. It is necessary first - because of the form this appeal has taken - to be clear about the way in which the case was put before the special adjudicator. The nature of that case is already apparent from paragraph 45 of the adjudication, which I have read. It was that there had been continuing persecution of the appellant as evidenced by the series of incidents I have summarised, and that that persecution was because of a political opinion that had been imputed to him, the political opinion imputed to him dating back and being founded on his involvement in the Brazauskas/Terleckas dispute which I have summarised, and being, to some extent, underpinned or encouraged by two facts: (1) that he was of Russian nationality or origin, and (2) that he been suspected earlier in the decade at least of having connections with the KGB and that that was an element in the attribution to him of involvement on one side in the dispute to which I have just referred.
- The adjudicator rejected that contention. He said, first, in paragraph 117 that in his view the appellant had been caught up "in a small way" in the political battle between Messrs Brazauskas and Terleckas. But it was the adjudicator's finding that the investigation instituted into the appellant had faded out in 1993 or 1994. The adjudicator said this at paragraph 117:
"Life in political terms is often very fickle, priorities change very rapidly. The appellant seeks to suggest that Brazauskas would bear him some ill-will on account of the matter. I can see no reason why that should be bearing in mind that the lawyer was acting for his opponent and not for him. Given the lapse of time from the events in 1991 and 1992 I am not persuaded that there is any residual interest in the appellant on the part of Brazauskas."
- Dealing with subsequent events, the adjudicator made a number of findings. First, at paragraph 120 with regard to the early complaints in relation to sale of housing, he said:
"Members of the security service or criminal elements put pressure on the appellant to sell various houses and this he did. There is nothing to suggest that he was targeted on account of his political views but rather that he had a commodity that others coveted or wanted. It may be that they perceived him to be someone without any particular influence in high places and therefore vulnerable to threats and abuse."
Secondly, the adjudicator summarised that by saying at paragraph 121:
"The appellant purchases desirable residences and others covet them and seek to obtain them. I can find no evidence, applying the lower standard of proof as I do, that there was any political element within that matter."
In paragraph 124 he said:
"The appellant was not a member of a political party and it may be far too wide in the circumstances of this particular case to interpret corruption and greed in terms of political opinion. The reality may well be that the appellant really had very little support for his rights in that community. He is even susceptible to assault and to threats made by a former business associate[d] who takes his car. There is nothing, as it seems to me, that is of a remotely political nature in that matter. Clearly the perpetrator of the theft knew that his victim was not strong enough to contest that which he wanted to do."
The adjudicator went on to the series of activities against the appellant by the police which have been described by him. He said this at paragraph 125:
"Stopping cars and fining the occupants is a major part of police work. In some countries the fine is extra money for the policeman concerned. The appellant describes the incident in February 1994 when he is assaulted by a policeman and makes a complaint. No doubt to justify his actions the policeman makes a counter complaint or an allegation. It is clear that the authorities believed the policeman rather than the appellant. The appellant may consider that he did not get justice but he was able to make his representations and for a court to consider them."
I interpose, the special adjudicator then describes a further incident and describes the course of complaints by the appellant and the fact he became known to the police. He said:
"They proceed to give him trouble by stopping him from time to time and fining him. When he seeks to challenge their authority they attack him until he agrees. That pattern of behaviour is indicative of a corrupt local police force but does not of itself suggest any overt or indeed covert political agenda. No doubt the police consider the appellant as a troublemaker and are reluctant to entertain his claims."
The adjudicator then said that so far as the burglaries were concerned it was very unclear who had been responsible for them. He summarised the matter in this way at the end of paragraph 125:
"Once again it would seem to be part and parcel of the experience that was growing in Vilnius of the appellant and the police at loggerheads. Saying that I do not seek to justify the behaviour of the police nor indeed their ill-conduct and ill-treatment of the appellant. Nevertheless it is a very large step to take to say that a situation where there is bad feeling by reason of personalities can in some form be ascribed to political motives."
At paragraph 128 he said:
"Looking at the matter as a whole I do not find that the first appellant has been persecuted on account of his political opinion. It would seem to me that by the time the appellant came to leave it was the animosity between himself and the police that had grown to be a substantial element in their adverse interest in him."
- The principal case, as put before the special adjudicator, was therefore rejected by him.
- There was a separate complaint initially that the appellant had been persecuted simply because of his Russian origins, and therefore the persecution was on grounds of ethnicity. That complaint in that form is abandoned and is not now before us. As I shall shortly describe, the appellant's Russian ethnic origin remains an element in the way the case is now put.
- Thirdly, it was said that the appellant would be persecuted as a failed asylum seeker. That point, again, took a rather different form before the adjudicator from the way in which it was deployed before us. So far as the case before the adjudicator was concerned, it was what I might describe as an orthodox claim of persecution as a failed asylum seeker. That is to say, that there was an attitude within Lithuania on the part of the Lithuanian authorities hostile to those who had left the country and sought asylum elsewhere. A certain amount of evidence was given and also government documents were produced indicating a wish on the part of Lithuania to discourage immigration and asylum seeking, not least because of a wish to ingratiate the country with member States of the European Union. The adjudicator went through the evidence and found as a fact at the end of paragraph 130 that, even applying the lower standard of proof appropriate to asylum cases, there was no safe basis to say that failed asylum seekers faced persecution or prosecution on their return to Lithuania. He therefore made the findings I described.
- An application was made to the Immigration Appeal Tribunal. The tribunal rejected the application for permission to appeal and said in paragraph 4 of their determination:
"The grounds of appeal addressed the issue of a Convention reason or reasons. The adjudicator considered the issues carefully and in detail in a lengthy and comprehensive determination. It is clear that he considered the possible Convention reasons, combination of Convention reasons, combination of reasons some or most of which did not engage the Convention. The grounds of appeal did not seek to argue that the adjudicator was mistaken in his conclusion that there was no current Convention reason on the basis of the applicant's race or ethnicity. They do argue that there was a sufficient element of actual perceived political opinion. We are unable to find any arguable basis on which the adjudicator erred in his application of the law or statutory conclusions in this regard or in any other way."
- That being the position, the only further recourse for the appellant was to seek judicial review. It is important when considering this appeal to remember that that is the nature of these proceedings. What was sought to be reviewed in form is the determination, as I have just read out, of the Immigration Appeal Tribunal. If one stopped there it would almost unavoidably be the case that there was no ground for that review because it is, in my judgement, virtually impossible to say that the view the tribunal took of the appelability of the adjudicator's determination involved an error of public law. But as has become the practice in such cases, effectively the complaint is made, albeit still in judicial review terms, about the original determination of the adjudicator. That is the form the argument has taken, and I am prepared to accept the long practice which validates that procedure.
- I turn to the grounds on which it was said Mr Justice Keith was wrong not to grant judicial review, effectively of the special adjudicator's determination. In so doing, I will keep in mind I am concerned with judicial review and not an appeal.
- The first ground in this court is that there was an error of law committed by the special adjudicator. He should have realised that the acts of the police, if taken on their own, and effectively ignoring the previous involvement of politicians, could only be explained as persecution for an implied political opinion on the part of the appellant. This ground is advanced in the light of the special adjudicator's finding that there was no connection between the original involvement in what I would call the Brazauskas matter and the subsequent persecution attacks by the police. That finding is challenged in ground 2 to which I shall in due course come, but ground 1 is a fall back or adaptation to the finding of the special adjudicator if it were to be upheld.
- In advancing that ground Mr Gill QC, who appears before us although he did not appear below, relies in particular on two passages in the adjudicator's own findings. The first is in paragraph 125, a sentence I have read:
"When he seeks to challenge their authority they attack him until he agrees."
- Secondly, Mr Gill relies on what the adjudicator said after he had reached his determination but was then considering whether he should make, as he did make, a recommendation to the Secretary of State. That is to be found in paragraph 137 of the determination when the adjudicator considered what would happen to Mr Brazauskas if he were to be returned to Lithuania. He says, first, that the appellant was a truthful and intelligent witness. He then said in the paragraph on which Mr Gill relies:
"I have also found that there existed a systematic and deliberate course of conduct against the appellant in Vilnius by the police. The probable reason for that being that there was a degree of antagonism between himself and the authorities that arose from his being able and willing to `fight his corner, on every occasion'. It seems to me that were he to return to Vilnius he would experience the same difficulties. Indeed it may be right that having returned from abroad that he may be perceived by certain factions as having a lack of respect to his country. In circumstances he may be even more vulnerable to the adverse attention of the police. Further it seems to me that in those circumstances internal flight would not be a realistic option for him and his family as no doubt if the authorities bore him ill-will they would be able to pass that message to the other areas in which he chose to reside. I find there is an element of ill-will against him ..... but not such as to fall within the Convention."
The adjudicator then refers to the benefit to this country were the appellant to remain here.
- Basing himself largely on paragraph 137, as a summary of the adjudicator's own view of what had happened to the appellant, Mr Gill says these are findings that lead inexorably to a conclusion that, leaving aside the involvement of Mr Brazauskas, the appellant had been the subject of persecution by the police, and that that persecution was for an imputed political opinion: the latter element having to be established if the persecution found was to be persecution on a Convention ground.
- There are a number of formidable difficulties about that submission. I will mention five of them though I am not certain that I have exhausted all the problems. First, when is the opinion, whatever it is, to be imputed to the appellant? The course of events is not that he was singled out at first instance by the police because of an opinion, but that he was randomly picked on. He then resists and is further punished, and it is at that last stage, and that stage only, that the argument that he is being persecuted can arise. That would not be fatal to his contention, but it does demonstrate the difficulty of it.
- Secondly, who is the persecutor? In order to fulfil the requirements of the Convention it has to be established that the persecution was on behalf of the State. Here it is said to be on the part of the police force. It has never been suggested in this case that the police force are to be taken to be an emanation of the State for Convention purposes, or that the State is not able to control them.
- Thirdly, the adjudicator made findings relevant to this argument even though the argument was not before him. I have set out the findings he made in paragraph 125 with regard to the corruption of the police force and the finding that the activities of the police cannot be ascribed to political motives, and also the finding in paragraph 128 that the explanation was animosity between the appellant and the police. In my judgement, Mr Giffin for the Secretary of State was right in his submission that the account in paragraph 137, given by the adjudicator, is to be regarded as his summary in different words of the findings he had made earlier in the determination. It would be surprising if that were not so, particularly in view of the obvious care and detail with which the adjudicator approached this case. If that is so, paragraph 137 in terms of its talk of systematic persecution does not assist the appellant because it is persecution of a nature which has been found as a fact to spring from antagonism and not from any political opinion held by the appellant.
- I consider that, with respect, Mr Justice Keith was right in his assessment of this argument when he said at paragraphs 16 and 17 of his judgment the following:
"There are a number of difficulties with this argument. I rather doubt that the claimant's harassment for that reason can properly be classified as having been the result of any opinions the claimant had. His determination not to let an authoritative element in the police force get the better of him can hardly be said to be an expression of opinion. Even if it can be I am very sceptical of the argument that it was an expression of a political opinion. I have not overlooked the view expressed in Hathaway: The Law of Refugee Status, 1991, p. 154:
`Essentially any action which is perceived to be a challenge to governmental authority is therefore appropriately considered to be the expression of a political opinion.'"
"One has to bear in mind the conclusion of the tribunal in Gomez v Secretary of State  1 WLR 549-para 73 that to qualify as political the opinion in question must relate to the major part of transactions taking place in that particular society. The opinion imputed to the claimant here was no more than a determination to ensure that his rights should not be disregarded. He was not challenging governmental authority, to use Professor Hathaway's phrase. What he was challenging was the abuse of that authority by one of the organs of the State."
If I may say so, that analysis reads back to and supports the observation I mentioned earlier that what is not demonstrated in this case is persecution by the State.
- Fourthly, the appellant is caused considerable difficulty by the decision of this court in Storozhenko v Secretary of State  IAC 329. That also was a case where the appellant complained of harassment by the police after he had sought to complain about, and bring to justice, police officers who had, in his view, misbehaved or treated him wrongly. He also claimed that his willingness to stand up to the police involved imputed political opinion. I accept the facts of that case were different from, and possibly less far reaching than, those in our case, but the essential reality that this court recognised in Storozhenko applies to our case also. As Lord Justice Brooke put it at paragraph 44 of the judgment, it was not necessary to address the question of what would count as a political opinion, but -
" ..... it would, in my judgment, on the face of it be stretching the expression much too far if one was to apply it to the facts of Mr Storozhenko's case. He was being persecuted because the local police did not want him pressing an inquiry into misconduct of one of their officers who had assaulted him. I am inclined to agree with the appeal tribunal that the persecution he suffered resulted from his attempts to ensure his assailant was punished, and that it was manifestly artificial to talk in terms of imputed political opinion."
- The factual findings of the adjudicator in this case strongly support the relevance to it of that assessment. There must be more - in my judgement, considerably more - than simply a desire to see justice done in relation to the police force to enable it to be said that a political opinion is thereby being imputed to the appellant; and there must, of course, be more than simply resistance by the police force to say that such persecution as the appellant suffers from in respect of his efforts is persecution by the State for purposes of the Convention.
- So far as the definition of political opinion is concerned, we have had the benefit of an opinion - provided to the appellant by those advising him - of Professor Hathaway, to whom I have made reference. That opinion did not address itself directly to the facts of this case, but it seems to me that a number of matters that are to be found within it, germane to the definition of political opinion and its imputation, are unhelpful to this appellant. I would quote only three matters that Professor Hathaway mentions and one matter relied on from another writer. In paragraph 1 (b) of the report Professor Hathaway cites, with approval, the case of Fengchu Chang v National Immigration Service, (1997) 119 F 3rd 1055 (USAC, 3rd Cir.), an American case where political opinion was said to be a view -
"Pertaining to, or incidental to, the exercise of the functions vested in those charged with the conduct of government; relating to the management of affairs of state, ..... of or pertaining to exercise of rights and privileges or the influence by which individuals of state seek to determine or control its public policy."
None of that comes anywhere near to the behaviour of the police in this case.
- Professor Hathaway quotes his own opinion in paragraph 1 (c) of the opinion, that which has already been cited by Mr Justice Keith: expression of political opinion is -
" ..... essentially any action which is perceived to be a challenge to governmental authority is ..... appropriately considered to be the expression of a political opinion.'"
It is very difficult to see how there was in this case any challenge to governmental authority, or anything that could be perceived to be a challenge to governmental authority on the part of the appellant.
- In paragraph 2 (a) of his opinion Professor Hathaway says - I think that is something that is to be regarded as a future analysis of political opinion based upon the present authorities which is to be found in a draft directive drawn up by the Commission of the European Union who say:
"the concept of political opinion shall include the holding of, or the being conceived as holding, an opinion on a matter related to the state or its government or its policy, whether or not that opinion has been acted upon by the applicant."
Again there is the difficulty in our present case of lack of opinion directed to the State.
- Finally, the appellant relies, and relies strongly, on a view expressed by Professor Goodwin-Gill and adopted by a number of courts that political opinion should be understood to include a view regarding "any matter in which the machinery of State, government and policy may be engaged." Again, on the most optimistic view, this case as expounded in ground 1 falls well short of that.
- I am wholly unpersuaded that there is any basis for saying in relation to ground 1 that the adjudicator was wrong in not pursuing this matter, much less that it would be possible to have a judicial review on that basis.
- There is a further difficulty in the way of this argument, which is that this point was not taken in the original judicial review application, and it was not taken before the Immigration Appeal Tribunal. It was raised with the judge on the morning of the hearing in the court below and he dealt with it. That means the point is, in any event, vulnerable to the judgment of this court in R v Home Secretary ex parte Robinson  QB 929 where Lord Woolf MR said at page 946 C that it is -
" ..... only obvious points that could be taken if they had not appeared in the argument in the court below."
"When we refer to an obvious point we mean a point which has a strong prospect of success if it is argued. Nothing less will do. It follows that leave to apply for judicial review and refusal by the tribunal to grant leave to appeal should be granted if the judge is of the opinion that it is properly arguable that a point not raised in the grounds of appeal at the tribunal had a strong prospect of success if leave to appeal were to be granted."
- The test that has to be applied to this court is, therefore, a strong prospect of success. As I have already indicated, the Immigration appeal Tribunal cannot possibly be said to have erred in not picking this point up, because it is not a point that had a strong prospect of success.
- For all those reasons therefore I am not persuaded by ground 1.
- I turn to ground 2 which is, in effect, the ground upon which the matter was placed before the special adjudicator. It is that the adjudicator was wrong to find that there had been a gap or disassociation between the difficulties involving Mr Brazauskas and the appellant and the later persecution. He should have held that the hostility of the police stemmed directly from the appellant's involvement in the Brazauskas incident, together with the unpopular and memorable facts at that time broadcast about the appellant, that he was (1) a Russian and (2) suspected of being a member of the KGB.
- In assessing that argument we need to remind ourselves that we are concerned with judicial review, effectively of the decision of a special adjudicator.
- Submissions put before this court by Mr Gill in a document that he filed at the beginning of the week say that the adjudicator was wrong because, first, it was arguable that on the adjudicator's own findings a nexus between the earlier trouble and the persecution had been established; and, secondly, that the adjudicator was wrong in law because he did not consider the question of whether the combination of the appellant's challenge to police authority and his involvement in attacks made it likely that opinions would be imputed to him.
- It is not sufficient to establish a judicial review case that a point not taken by the adjudicator was arguable. What has to be established is that no reasonable adjudicator could have taken the view the adjudicator did. I do not see how that can be made good. First, there is no clear indication what the point of law is supposed to be. I have already set out those observations, definitions or guidance on which the appellant relies. I am bound to say that I do not see how the appellant's involvement in the Brazauskas argument qualifies, even in the first place, under that guidance. True it is the appellant became involved in an argument between two politicians, but I do not see how (to quote Professor Goodman-Gill) "the machinery of State, government or policy" was engaged in that matter.
- Secondly, in order to suggest that the police were taking their line from the earlier dispute it seemed to me necessary for the appellant to say that it was Mr Brazauskas who was his persecutor, the source of his problems. Quite apart from there being absolutely no evidence of that, as the special adjudicator pointed out in paragraph 117 of his determination (which I have set out), the person with whom the appellant had the disagreement was the lawyer for Mr Terleckas.
- Leaving all that aside, and noting what I have just said, the court has been led into an area of speculation that is simply not open to it on an application of this sort. The special adjudicator's findings about the gap between the earlier incident and the persecution was plainly open to him on the evidence, as it was open to him to reject the claim on the evidence that the persecution went back to the earlier incident. Although he did not articulate the matter in the terms in which it is now argued by Mr Gill, the question that Mr Gill poses and the adjudicator's answer to him was inherent in the special adjudicator's analysis.
- I should mention one further point. Before us this morning Mr Gill took a further point, that there was a serious factual error in part of the special adjudicator's determination. The special adjudicator, in describing the case that was relied on, in paragraph 119 said that it was an element in the case that Mr Paulauskas, the chief prosecutor and now Speaker of Parliament, would have some residual resentment against the appellant. The adjudicator went on and said:
"There is no suggestion that they ever met or indeed if they had so met that there was any animosity linking or lurking between them. No doubt Mr Paulauskas is a politician and rides the moment rather than resenting the past."
Mr Gill says that is straightforwardly wrong. As we have already seen, Mr Paulauskas, who was the prosecutor, not only met the appellant but interviewed him in connection, or potential connection, with his involvement in the original incident. It is therefore wrong to say that there was no suggestion they ever met. In broad terms, that is right. Bit it is also right to point out that it is quite clear the adjudicator's view that whether they had met or not, it was simply not likely that there was animosity still entertained by Mr Paulauskas who had other and better things to bother about in 1996 or 1997. That was his clear finding. It was a commonsense finding which was plainly open to him.
- I would also add that had this matter had been clearly ventilated before the adjudicator he no doubt would have pointed out, as he did, that although Mr Paulauskas interviewed the applicant in 1991 nothing was done to him then, and it is hardly likely that Mr Paulauskas would be nursing resentment later on.
- So far as the third point - the persecution on return point - is concerned, it seems to me that it is clearly misconceived. I have said there are elements in paragraph 137 where the adjudicator dealt with this matter which could be potentially relied on in support of the first point. I have dealt with that. So far as the persecution on return is concerned, the appellant seeks to argue that such persecution as he might face would be in respect of an imputed political opinion. He had to take that course because he was no doubt aware of the observations of Lord Justice Millett in Mbanza v Secretary of State  IAR 136 where Lord Justice Millett indicated - and I agree, with respect - that persecution on return is not per se persecution for a Convention reason. The only basis on which it can be said, on the basis of the adjudicator's findings, that he should have further considered persecution on return is the sentence in the passage I have read in paragraph 137:
"Indeed it may be right that having returned from abroad he may be perceived by certain factions as having a lack of respect to his country."
He may be perceived by what the adjudicator described as "factions" as having a lack of respect for his country. That does not establish that he is likely to be persecuted politically. Quite the reverse. It establishes that he may fall foul of the sort of elements in society in Lithuania with which he had difficulties when he lived there. The adjudicator already found that nothing could be based on that circumstance. The adjudicator therefore was not in error in the conclusion he came to on the third argument.
- There is nothing in this case, in my judgement, that comes arguably near a finding for judicial review against what were essentially findings of fact on the part of the special adjudicator. I would dismiss this appeal.
- LORD JUSTICE KEENE: I agree.
- LORD JUSTICE KENNEDY: I also agree.
Order: Appeal dismissed. No application for costs. Permission to appeal was refused
I have obtained a copy of Professor Hathaway's opinion and, on checking, the part marked should not appear in quotation. Do you wish to amend any part of the sentence in the light of that?
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