This appeal from a starred decision of the
Immigration Appeal Tribunal in a refugee case raises issues which are
important both from a humanitarian and from a legal perspective. In granting
permission to appeal, Simon Brown L.J. observed
Although the appellant lost on 2 supposedly
independent grounds neither seems to me self-evidently right: this is a
difficult area of the law.
We agree with every part of that observation. However, we have come to
the same conclusion as the Tribunal. Every society has in it rich men. Every
society has in it individuals and groups who would like to put into their
pockets what is currently in the pockets of the rich and are prepared to
kill for this. Many states do not have internal policing systems which
provide an adequate measure of protection from such people and groups. We do
not consider that the Refugee Convention imposes upon signatory states any
general obligation to provide refuge for all the potential victims in those
The appellant Mr Montoya is a Columbian who has
sought refugee status here. The facts are not in dispute. He is accepted on
all sides as being honest. He had threats in Colombia to the effect that if
he did not pay 10,000,000 pesos per month to a marxist opposition group
known as the EPL he would be murdered. His elder brother was murdered in
Columbia in 1992 for political reasons. His uncle had received similar
threats and had for a while made payments. He stopped paying and thereupon
was murdered on 31.12.1995. The appellant had never been involved in
politics but had refused to make any payments partly as a matter of
principle and partly because they were beyond his means. He had a genuine
fear of being killed and because of this had fled to this country in 1996.
If he is returned to Colombia there is a reasonable likelihood that he will
be murdered. The putative murderers are the persons seeking to extort the
money. The state authorities are not in a position to protect him. His claim
to human sympathy is clearly strong. The Secretary of State has power to
allow him to remain. Whether the Secretary of State should exercise this
power rather than send him to a likely death is however not a question which
the Court has jurisdiction to consider in these proceedings.
The legal question which we have to determine is
whether on those facts the IAT was entitled to come to the conclusion that
the appellant did not fall within the definition of a refugee contained in
the Geneva Convention relating to the status of refugees. That definition is
as follows :-
.... owing to a well-founded fear of being
persecuted for reasons of race, religion, nationality, membership of a
particular social group or political opinion 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 reasons here set out we shall refer to as Convention reasons.
This definition has caused many problems in the
past and will no doubt continue to do so. It is a common phenomenon of
reaching political agreement that it is easier to reach agreement on
imprecise wording. It is sometimes thought better to reach an agreement on
such wording rather than to fail to reach agreement on more precise wording.
The result of leaving imprecise wording is that the courts must do what they
can with the wording that they have got. Unlike the parties to the agreement
the courts can not simply walk away from the problem.
The Adjudicator found that Mr Montoya was a
refugee as there defined. The Immigration Appeal Tribunal, however, allowed
an appeal by the Secretary of State. It held that Mr Montoya’s case was
not covered by the Refugee Convention since
although he had a
well-founded fear of being persecuted, the persecution in question was not
for a Convention reason in that he was not a member of a particular social
group as that phrase is used in the Convention nor was he threatened with
persecution for his political opinion and
even if he were to be
regarded as a member of a particular social group, he had not shown that the
threat to his life and property was the result of his being a member of such
The Tribunal enunciated various legal
propositions which were not significantly in dispute before us. The
submissions before us were primarily concerned with whether the Tribunal had
erred in applying those principles to the undisputed facts of the present
case. Because many of the submissions made reference to particular
conclusions reached by the adjudicator and the Tribunal and because the
Secretary of State may wish to have the main material in one document it is
perhaps useful to set out rather more from their determinations than would
normally be done.
The Adjudicator’s determination.
The following paragraphs from the
Adjudicator’s decision indicate what the appellant said and the
.... the appellant, the eldest of 7 children, was born and
brought up .... near Risaralda in the Caldas department of Colombia. From
1993 until his departure in 1996 he managed his family’s 7 acre coffee
plantation in that area. He had no political affiliations.
In May 1996 the appellant began to receive threats from the
Ejercito Popular de Liberacion (EPL). According to the Colombia Country
Assessment dated April 2000 at paragraph 4, under the heading Guerrilla
was established in 1967 by the Partido Comunista Colombiano
(Marxist-Leninist). It was the first Colombian group with a Maoist
orientation. Made up of peasants, workers and students, it advocated
total nationalisation and confiscation of all important industrial and
agricultural enterprises. In 1984 .... the EPL came to an agreement with
the Government and initially abandoned the armed struggle .... A
dissident group, the APL-D, numbering about 120, is still active in .... Risaralda.
These threats were continual and were in the form of 4 telephone calls and
5 letters which sought to extort large sums of money from the appellant
with the warning that if he refused to pay he would suffer the
consequences. As a direct result of this the appellant moved to his
parents’ home .... where, however, the threats continued. The appellant
believed that the Colombian authorities often overlooked the activities
and threats carried out by the EPL ....
The appellant reported these threats to the police at the
Municipal Police Station and also at Belacazar .... He fled to the
United Kingdom as a direct result of these threats which were similar in
nature to those received by his uncle who was subsequently murdered on 31
December 1995. The appellant’s elder brother Ruben Montoya and his
sister Claudia .... both had political connections. Ruben was murdered for
political reasons in 1992 and Claudia fled the country ....
The appellant was called to give evidence in chief for the
purpose of which he adopted as evidence his previously mentioned interview
and 2 statements. The EPL demanded that the appellant pay them 10 million
pesos every month. The appellant’s father thought it wrong to give in to
such threats so the appellant ignored them. He then received letters
threatening to kill him if he did not comply. The appellant became too
terrified to leave the house at the plantation and so he moved in with his
family in Belacazar. However, after a week he received threats there and
went again to the police who said they would investigate but failed to do
so. Each time the appellant requested a progress report on the
investigation he was told to wait, until he was driven by fear to leave
the country. The EPL was a very strong organisation with links to ....
(FARC) and to the .... (ELN), both extremists left-wing groups. There was
no point moving to yet another part of the country since there was danger
everywhere in Colombia.
.... [The appellant’s uncle] owned and ran a coffee
plantation in the same village as the appellant. He received the same
threats and made the same complaints to the police who failed to act upon
them. He was killed by the same guerrillas ....
The appellant’s elder brother was murdered because he was a
member of the Conservative party. His parents have warned him against
returned (sic) to Colombia saying that he is in danger of being
murdered or kidnapped. The Guerrillas will not have forgotten about him.
[in cross-examination] the appellant said his family was
popular and well regarded and had numerous friends in Colombia. He himself
had never been involved in politics but had received the same sort of
threats as his murdered brother .... His murdered uncle had started off
by paying the extorted money to the Guerrillas. It was because he stopped
paying that he was killed .... The appellant had no problems until he
started receiving threats in May 1996. He did not believe that his
problems were linked to the political beliefs of certain members of his
family but it could be the same group who had killed his brother as had
murdered his uncle and threatened him. He had received no threats from
groups other than the EPL. The police had opined that the threats were
from common criminals but the appellant was sure it was the EPL since the
notes were signed and stamped with the EPL logo.
The appellant’s father is now running the plantation with the
help of a manager and pays monthly extortion money to the EPL through that
manager. He fears that they will soon seek to increase the amount. He
believed that his family was targeted because they were prosperous
The appellant has given throughout a consistent account of his
reasons for seeking asylum. He impressed me as an intelligent and honest
witness and I found his account wholly credible. I accept his assertion
that he had and still has a genuine fear of persecution if returned to
Colombia .... I accept that the appellant has received death threats and
that his personal experience suggests to him that they may very likely be
carried out. Given the numerous accounts of murder and atrocities in the
newspaper cuttings provided .... I am convinced that there is a reasonable
likelihood of this appellant being murdered if he were returned to
Having established that the appellant has a well-founded fear
of persecution it is then necessary to establish whether or not that fear
of persecution is for a Convention reason. Having listened to the
evidence, I must agree with the appellant’s own assessment that, in his
case, such persecution is unlikely to be on account of his actual or
imputed political opinion. He neither had nor has any particular political
allegiance and it is difficult to see how he could be imputed to have done
so (sic) four years after his brother’s death. The only other
category into which he might be admitted, therefore, is as a member of a
“particular social group”.
I believe that as members of a Maoist organisation, the EPL
would regard private land-owners, who work their land to generate wealth
for themselves and their families, as a particular social group – a
group anathema to them .... [the Adjudicator quotes the definition
adopted in the oft cited (1985) US Board of Immigration Appeals Interim
Decision 2986, Re Acosta] : “applying the doctrine of eiusdem
generis we interpret the phrase to mean persecution that is directed
toward an individual who is a member of a group of persons all of whom
share a common, immutable characteristic. The shared characteristic which
might be an innate one such as sex, colour or kinship ties, or in some
circumstances it might be a shared experience such as former military
leadership or land-ownership .... whatever the common characteristic that
defines the group, it must be one that members of the group cannot change,
or should not be required to change because it is fundamental to their
individual identities or conscience. Only when this is the case does the
mere fact of group membership become something comparable to the other 4
grounds of persecution”. I am satisfied on this basis that the appellant
as a land-owner is a member of a particular social group.
Lastly, the appellant needs to satisfy me that owing to his
well-founded fear he is unable or owing to such fear is unwilling to avail
himself of the protection of the country of his nationality. The appellant
has proved himself willing .... to seek the protection of the Colombian
authorities but appears to have lost confidence in their ability to
protect him. Is this lack of confidence justified? [The Adjudicator
answered that question in the affirmative].
The Tribunal’s determination
The Tribunal (Dr H.H. Storey, Mr J. Barnes and
Mr G. Warr), after an extensive survey of domestic and foreign case law and
literature to which we would like to pay tribute, and relying particularly
on the passage in Acosta cited by the adjudicator, identified various
principles and sought to apply these to the appeal in front of them. The
most significant paragraphs of their determination are the following. We
have underlined the crucial parts of the Tribunal’s reasoning.
The Tribunal is satisfied that the Adjudicator gave sound
reasons for rejecting the respondent’s claim that the EPL would impute
to him a political opinion ....
.... it is difficult to see how in this case the EPL (or a
dissident faction of EPL) would ever have imputed or would impute to the
respondent a political opinion. On the available evidence the respondent
may well have been seen as a one (sic) member of a group anathema
to them. But they appear to have been quite indifferent to what views were
held by the respondent and his family. We consider that it was his
family’s prosperity that made them a target not their perceived
political beliefs. There is no satisfactory evidence to show that the
Guerrillas’ motives were anything other than the purely criminal ones of
desiring to extract extortion money. Indeed we note that in one of the
documents relied upon by the respondent even he is recorded as saying
According to the notes left for me they come from a cell of the EPL
to be exact from the Front 19, but on closer examination of the notes,
they seem more likely to have come from common criminals passing
themselves off as guerrillas as they occasionally demand sums of money
which I have never paid as they are beyond my means ....
While Ms Fielden is correct in pointing out that guerrilla
organisations active in the respondent’s part of Colombia (the EPL
included) were to a degree selective in their choice of certain groups as
their targets, on the available evidence the only significant feature
which caused landowners such as the respondent and his family to be a
target was their perceived wealth.
For the above reasons we agree with the Adjudicator that
there are insufficient elements in this case to justify a finding that the
EPL has ever imputed or would now impute a political opinion to the
respondent. [The Tribunal then referred to the earlier decision in Gomez
 INLR 549 where it was said]:
Organisations for some if not much of the time may act for purely
economic reasons. Their reasons for seeking retribution against victims
may for some if not much of the time be purely criminal. Indeed the
background evidence suggests that most of the kidnappings undertaken by
FARC and ELN are “financially motivated”.... deciding whether any
kidnapping is purely financial or purely political or is for mixed
financial and political motives will obviously therefore depend on the
particular circumstances of each case.
Similar consideration seems (sic) to us to apply when extortion is
involved. There has to be concrete evidence that such a political motive
would be brought to bear in the particular case. As we have just shown,
such evidence is lacking here.
.... [the Adjudicator] failed to apply the correct criteria for
determining whether there was a particular social group comprised of
private landowners in Colombia. And nowhere did she apply her mind to the
further essential question of whether or not the respondent had
established a causal nexus between the harm feared and his membership of
such a particular group.
We consider that her incorrect approach to the assessment of
membership of a particular social group category led her to identify
private landowners in Colombia as a particular social group when in fact
they are not. Even if we had agreed with her about the existence of such a
social group, the absence of any clear decision on the causal nexus
question constitutes reason enough on its own why her determination cannot
.... It is clear that the respondent cannot be excluded from
consideration as a member of the particular social group composed of
private landowners simply because he himself was not a land-owner. We are
prepared to accept that in this case the EPL group concerned have always
perceived the respondent as a land-owner, by virtue of the fact that it
was his family through the father who owned the coffee plantation .... It
is a reasonable inference that the guerrillas have always proceeded on the
basis that it was the family that was the real source of the wealth that
they sought – and apparently still seek – to extort.
The question of whether the landowners constitute a particular
social group in the present appeal has to be looked at in the particular
context of current-day Colombia. It was the failure of the Adjudicator to
grasp this point which caused her to fall into error.
We have no difficulty in accepting that for a number of
purposes private landowners in Colombia are differentiated from other
groups or categories. They are distinguished by the fact that they own
land and that many of them work the land for profit. However, the question
we have to ask is whether such a group constitutes a particular social
group for Refugee Convention purposes.
For reasons given earlier, as this appeal is primarily based on
the risk of persecution feared at the hands of non-state agents, it is
necessary to examine for what extent such a group is set apart from the
rest of society not only by reference to the attitude of the State towards
it but also to the attitude towards it of non-state actors, the EPL in
particular. In current-day Colombia the position of landowners is nowhere
near as distinct and demarcated as for example were landowners in
pre-Revolutionary Russia. However, the Tribunal considers that it remains
that such a group does have some significant internal characteristics. The
only question is whether such characteristics are enough to constitute it
a particular social group for Convention purposes.
.... We do accept that as a result of the common designation
given to them of being “Maoist” it is reasonable to infer that the EPL
does view itself to some degree as involved in a class struggle and that
it numbers among its class enemies those belonging to the landowners
class .... It also seems to us evident enough that despite urbanisation
Colombia remains a country dominated to a significant degree by the
economics of its rural production. Historically the ruling classes have
been the landowners ruling alongside or through major political parties
representing their interests ....
We would accept therefore that in such a society the status of
being an owner of land that is worked for a profit is an ostensible and
significant social identifier with historical overtones.
We would also accept that another characteristic which private
landowners share is the fact that they are ineffectively
protected .... accordingly the inability of the State to protect private
landowners serves in this case to add an additional basis on which to
recognise this group as a distinct entity.
However .... a further requirement must be met
before the respondent can establish that he is a member of a
particular social group composed of private landowners. That
requirement is that such a group is one which shares an
Mr. Harper’s claim that the respondent fails on this count
has two parts. First of all it is argued that such a group clearly does
not share an innate characteristic. We must accept that as being
correct, even taking that concept in the broadest possible sense. It
would appear that in Colombia a person can divest himself of his status
and identity of a land-owner by his voluntary action. It may not always be
that easy for a person to do this in practice, but there are clearly no
longer entirely rigid lines of social stratification such as would make it
practically impossible for a person to change from being a land-owner to
some other status or position.
The second part to Mr. Harper’s principal objection appears
to be that the common non-innate characteristics of such a group is not
one which falls within the requirement set out in Re Acosta, Savchenkov
and other cases of being one that members of the group cannot change, or
should not be required to change because it is fundamental to their
individual identities or conscience. On this point we must agree with Mr.
.... There was or is nothing to stop the respondent changing
his perceived identity as a private land-owner.
We agree .... that there was some degree of interference in the
respondent’s and his family’s civil and political rights. Their
attempts at relocating to their family house in Balcazar did not solve
their problems. The evidence was that the threats made to him as a result
of his failure to pay extortion money on the coffee plantation in
Risaralda continued there. Thus action on his part to continue as manager
of the coffee plantation on behalf of his family had only been possible at
the expense of a considerable interference with his basic right to enjoy
private and family life without threat or anxiety. That such interference
would continue to be a real threat is strongly suggested by the evidence
as to the current situation of the respondent’s father.
We also accept that the respondent did not and does not have
opportunities available to him to preserve his personal freedom by
reliance upon state protection ....
However, these interferences in the respondent’s and his
family’s civil and political rights have all occurred because of their
status as private landowners. The latter is a status the respondent can
change. He could change from being a land-owner without that having a
fundamental impact on his identity or conscience.
.... Despite the very real respects in which the respondent
and his family face interference in their civil and political rights,
their membership of this group is not one which they are unable to change.
The nature of present-day Colombian society would not prevent them from
earning their livelihood in another way.
It might be objected that whilst the respondent and his family
might be able to change their status of land-owner to something else, the
most likely result would be that they would remain a target for
persecution by groups such as the EPL because of their continuing wealth.
That may well be true, but it seems to us to demonstrate that in reality
the only group of which they have membership is that of persons with
wealth. But if it is wealth alone that makes them a target then such a
group does not exist independently of their persecution.
Summary of Conclusions
The Adjudicator was correct to conclude that the
respondent could not show a Convention ground of political opinion but
incorrect to conclude that he had made out the ground of membership of a
particular social group (PSG). In deciding that private landowners were
a PSG in current-day Colombia the Adjudicator overlooked the judgment of
the House of Lords in Shah and Islam  2 A.C. 629 and
in consequence applied the wrong criteria for evaluating the PSG
category. She also erred in failing to consider whether there was a
causal nexus between the respondent’s well-founded fear of persecution
and this alleged PSG.
Taking stock of post-Shah and
Islam cases both here and abroad, the Tribunal considers
that the basic principles that should govern assessment of a
claim based on the PSG category are as follows:
in order to succeed under the Refugee
Convention a claimant who has a well-founded fear of persecution
must show not only the existence of a PSG (the “PSG question”),
but also a causal nexus between his membership of the PSG and
that fear (the “causal nexus question”);
The PSG Question
the PSG ground should be viewed as a category of
persecution may be on account of more than one
ground. If the principal ground is membership of a PSG, then focus
should be on that;
the PSG ground must be interpreted in the light of
the basic principles and purposes of the Refugee Convention;
if the PSG ground had been intended as an
all-embracing category, the five enumerated grounds would have been
the PSG ground is further limited by the
Convention’s integral reliance on anti-discrimination notions
inherent in the basic norms of International Human Rights Law;
applying the eiusdem generis principle to
the other 4 grounds, the PSG category must be concerned with
discrimination directed against members of the group because of a common
a broad range of groups can potentially
qualify as a PSG, including private landowners;
but whether any particular group is a PSG in
fact must always be evaluated in the context of historical time and
in order to avoid tautology, to qualify as a PSG it
must be possible to identify the group independently of the persecution;
however the discrimination which lies at the heart
of every persecutory act can assist in defining the PSG. Previous
arguments excluding any identification by reference to such
discrimination were misconceived;
a PSG cannot normally consist in a disparate
collection of individuals;
for a PSG to exist it is a necessary condition that
its members share a common immutable characteristic. Such a
characteristic may be innate or non-innate. However, if it is the
latter, then the non-innate characteristic will only qualify if it is
one which is beyond the power of the individual to change except at the
cost of renunciation of core human rights entitlements;
it is not necessary, on the other hand, for such a
group to possess the attributes of cohesiveness, interdependence,
organisation or homogeneity;
there is nothing in principle to prevent the size
of the PSG being large (e.g. women), but if the claim relies on some
refinement or sub-category of a larger group, care must be taken over
whether the resultant group is still definable independently of their
a PSG can be established by reference to
discrimination from state agents or non-state agents (actors) of
it is not necessary in order to qualify as a PSG
that a person actually has the characteristics of the group in question.
It is enough that he will be perceived to be a member of the group.
The Causal Nexus Question
The words “for reasons of” require a causal nexus
between actual or perceived membership of the PSG and well-founded fear
of persecution. Caution should be exercised against applying a set
theory of causation. In Shah and Islam and the
Australian High Court case of Chen no final choice was made
between the “but for” and “effective cause” tests, but the “but for”
test was said to require a taking into account of the context in which
the causal question was raised and of the broad policy of the
Applying the above principles to the present
appeal, whilst private landowners could be said to be a group with
identifiable and significant unifying characteristics, it could not
qualify as a PSG for Refugee Convention purposes because private land
ownership could not be said to be an immutable characteristic, i.e.
either an innate characteristic or one which a person cannot change or
should not be required to change, because it is fundamental to the
individual identities or conscience of its members.
Even if it were accepted that private landowners
did form a PSG in current-day Colombia, the respondent could not
establish on the evidence a causal nexus. The ill-treatment private
landowners were likely to receive was referable to the fact that they
had wealth. The motivation behind the actions of guerrilla groups such
as EPL in targeting persons in the respondent’s area of Colombia appears
to be purely financial.
The Secretary of State’s Appeal is allowed.
[Although there appears to be a gap between paragraphs 55 and 60 of the
determination it seems clear that nothing has been omitted.]
There are three points which are not
controversial but which are important.
First, Mr Montoya is outside Columbia owing to
a well-founded fear of being persecuted. There is no definition of
persecution in the Convention. The victim is a member of a family which owns
land and thus has wealth. Mr Manjit Gill Q.C. submitted that to threaten
death to someone unless he gives up his property is to infringe a
fundamental human right. A person has a right to life and a right to retain
his property. That much is recognised in the United Nations Charter. It is
true that both those rights are qualified. However in the circumstances of
the present case none of the possible circumstances which might be regarded
as justifying depriving someone of his life or his property has any possible
application. To make that threat to Mr Montoya amounts to persecution and
the contrary has not been argued.
Second, he is unable to avail himself of the
protection of Columbia. The present case is not one where the persecution
feared comes from an organ of the state of the country of the applicant’s
nationality. Mr Montoya’s problems arise from the fact that the organs of
the state do not offer him the proper level of protection from unlawful
elements in that state. The applicable law is to be found in Horvath v
Home Secretary  1 A.C.489 H.L.. This establishes that the general
purpose of the Convention is the provision by the international community of
surrogate protection by way of the recognition of the refugee status of
persons who fear being denied protection from persecution for a Convention
reason in their home state. The fact that the persecution does not emanate
from an organ of the state does not in itself prevent the obligation of
surrogate protection from arising. On the other hand, the mere fact that the
home state can not guarantee protection does not cause the obligation of
surrogate protection to arise. It only arises when the home state is unable
or unwilling to discharge its duty to establish and operate a system for the
protection against persecution of its own nationals. In many cases the issue
is whether the level of protection offered by the home state is adequate to
discharge that duty. In the present case that issue does not arise : both
the adjudicator in paragraph 23 and 27 and the Tribunal in paragraphs 36 and
44 found that the level of protection afforded by the home state was not
Third, the mere fact that the applicant has
established that he is reasonably likely to be murdered if he is returned
home is not in itself enough to cause the obligation of surrogate protection
to arise. The international community has agreed to provide that surrogate
protection only to those who have a well- founded fear of being persecuted for
a Convention reason – see Islam v Secretary of State for the Home
Department and R v I.A.T, ex parte Shah  2 A.C. 629, at
651A, 656D, 659F. When the Convention was drafted amongst the possible
to accept no liability in respect of what another state did
or did not do within its own borders,
to provide for surrogate
protection in all cases where someone was at risk of being persecuted within
his home state, and
to provide for surrogate protection only for those
cases where someone was at risk of being persecuted for a Convention reason.
The signatories opted for the third of these.
The crucial question in the present case is
whether the Tribunal were entitled to come to the conclusion that Mr Montoya
had no well-founded fear of being persecuted for reasons of membership of a
particular social group (“PSG”) or political opinion.
It is convenient to deal first with the
question of political opinion. Mr Gill, submitted that the class to which
the appellant belonged was seen as a political enemy by the persecutors. In
making that submission he could point to the acceptance by the Tribunal in
paragraph 12 that the appellant may well have been seen as one member of a
group anathema to the persecutors. However, in our judgment the Tribunal
were right to focus not on the political beliefs of the persecutors but on
their perception of Mr Montoya’s political beliefs and their motivation.
The Tribunal had before them a wealth of material as to why persons in the
position of the appellant were persecuted. In our judgment they were
entitled to conclude in paragraphs 12 and 13 that it was the family’s
prosperity which made them a target not their perceived political beliefs.
So we now turn to the questions which were at the centre of the debate
We were addressed by both sides on the basis
that the Tribunal’s summary of the basic principles as set out in their
paragraph 55B was a broadly correct summary of the existing law binding on
this Court. This we are content to do.
The leading English authority is to be found
in the consolidated appeals Shah and Islam. Lord Steyn, at
page 639C, Lord Hope at 656E and Lord Millett at 660E indicated that they
regarded the preamble to the Convention as important as showing that a
premise of the Convention was that all human beings shall enjoy fundamental
rights and freedoms.
Lord Steyn held at page 643G that cohesiveness
may prove the existence of a PSG, but the meaning of PSG should not be so
limited: the phrase extends to what is fairly and contextually inherent in
that phrase. In coming to that view at page 640H he expressed his support of
the reasoning in Acosta in the passage quoted by the adjudicator in
his paragraph 26 which we have cited in paragraph 7 above.
The last sentence of this passage in Acosta
was the foundation of the Tribunal’s reasoning in the present case.
It was common ground before their Lordships in
Shah and Islam that a PSG cannot be defined merely by the
existence of persecutory acts – see 639G,H, 656F, 657C. Lord Steyn
expressed at page 645 his agreement with the following passage from the
judgment of McHugh J. in Applicant A v Minister for Immigration and
Ethnic Affairs 71 A.L.J.R. 381, 402
.... while persecutory acts cannot define the social group, the actions of
the persecutors may serve to identify or even cause the creation of a
particular social group in society. Left-handed men are not a particular
social group. But, if they were persecuted because they were left-handed,
they would no doubt quickly become recognisable in their society as a PSG.
Their persecution for being left-handed would create a public perception
that they were a PSG. But it would be the attribute of being left handed
and not the persecutory acts that would identify them as a PSG.
The same approach can be found in the speech
of Lord Hope at page 657G – 658A.
By analogy, the appellant in the present case
argues that it is the attribute of being wealthy not the persecutory acts
which identifies the wealthy in Columbia as a PSG.
Lord Hoffmann at page 651A held that the
concept of discrimination in matters affecting fundamental rights and
freedoms is central to an understanding of the Convention and emphasised
that the Convention was concerned not with all cases of persecution, even if
they involve denials of human rights, but with persecution which is based on
discrimination. And in the context of a human rights instrument
discrimination means making distinctions which principles of fundamental
human rights regard as inconsistent with the rights of every human being to
equal treatment and respect. The obvious examples were race, religion,
nationality and political opinion. But the inclusion of PSG recognised that
there might be different criteria for discrimination, in pari materia with
discrimination on the other grounds, which would be equally offensive to
principles of human rights.
Lord Hoffmann also at page 651E indicated his
approval of the passage from Acosta cited by Lord Steyn.
We would not think it right, in the light of
the approval given to Acosta both in their Lordships’ House and
elsewhere for this court to depart from what was there said. Mr Gill
accepted that it would not be right for us to do so although he submitted
that one should not apply the immutability part of Acosta too
The applicant here is, and is perceived as to
be, a member of the rich land-owning class. The persecutors seek out members
of that class and hunt them down in order to obtain their land or money. The
essence of the Tribunal’s decision is
that this class can not qualify
as a PSG for the purposes of the Convention because each member of it can
dispose of his land or wealth and
that in any event any persecution
would not be because the immigrant is a member of the group but rather
because the persecutors wished to have his money.
A possible approach to the present case is to
assume two matters in Mr Montoya’s favour : 1. that he is a member of a
PSG , and 2. that he has a well- founded fear of being persecuted.
It is common ground that, even if those
matters are assumed in his favour, he must still show that he has a well
founded fear of being persecuted for reasons of membership of a
particular social group or political opinion. This brings us to the
question whether the Tribunal was entitled on the evidence before it to
conclude, as they did in paragraphs 12,13 and 50, that he was being
persecuted not because he was a private landowner or because of his
political beliefs, but because the persecutors wished to extract extortion
money for their own use.
We are thus brought to the potentially
difficult issue of causation. Lords Steyn, Hope and Hutton in Shah and
Islam did not find it necessary to add to the vast amount of doctrine
on causation. Lord Hoffmann at 653G points out that answers to questions
about causation will often differ according to the context in which they are
asked. At 654H-655A 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.
Mr Gill submitted that there can be mixed
motivations and that the establishment of motivation is difficult. We do not
take issue with either proposition in the abstract. [He pointed to the fact
that in paragraph 45 of their decision the Tribunal go so far as to say that
the interferences in Mr Montoya’s and his family’s civil and political
rights have occurred because of their status as landowners. That however was
said in a different context. ]
The Tribunal had a wealth of material before
them, including some emanating from Mr Montoya, from the U.S State
Department Country Report for 1999 at page 11 and from the Home Office
Country Report April 2000 paragraph 4.29, from which they were entitled to
conclude that the motivation of his persecutors was financial. There is
nothing before this court which would entitle it to upset the Tribunal’s
conclusion as to the motivation of the persecutors.
Mr Gill then submitted that the mere fact that
the persecutor’s motive for persecution was not a Convention motive does
not have as its inevitable consequence that the victim was not being
persecuted for Convention reasons. Again, we would not quarrel with that
proposition in the abstract. We are prepared to accept that there can be
circumstances in which a person can be persecuted for Convention reasons
notwithstanding that the persecutor’s personal motivation was independent
of those reasons. An example might be where a person’s religion forbad the
carrying of weapons and that person therefore refused to do military
service, which in turn exposed him to imprisonment even though his
persecutor was unaware of his religious imperative and was only concerned to
enforce what he saw as the victim’s civic duty – see Sepet and Bulbul
v Secretary of State for the Home Department  INLR 378 C.A..
However, the task before the Tribunal in the
present case was to decide whether Mr Montoya had a well-founded fear of
being persecuted for the reason that he was a member of a land-owning
family. Mr Gill submitted that, judging by the material in front of us, had
Mr Montoya’s family not been possessed of land they would not have been
wealthy and thus would not have been the targets of persecution. Had the
family not inherited or purchased the land they would not have been
persecuted; had the family given all their land away they would not have
been persecuted. There are a number of factors which have combined to
produce the situation in which the family had at the relevant moment and
apparently still has enough wealth to be a fruitful target for extortion.
All this we would accept.
The jurisdiction of this court is designed to
enable it to set aside conclusions reached by the Tribunal which are
erroneous in law – Immigration and Asylum Act 1999, Schedule 4, Paragraph
23. We see no legal error in the Tribunal’s conclusion in the present case
that Mr Montoya had a well-founded fear that he would be persecuted by
reason of the fact that the persecutors wanted his money and that
accordingly he would not be persecuted for a Convention reason.
By way of cross-check we have stood back from
the detailed analysis carried out by the Tribunal relying as it did on
separating out of two questions – one relating to the concept of
particular social group and one relating to causation. we have asked
ourselves whether the proper interpretation of the definition of refugee in
the Convention requires that someone in Mr. Montoya’s position falls
within that definition construed as a whole. We are of the view that it does
not and that Mr. Montoya is not a refugee as there defined.
We would dismiss this appeal
Manjit S. Gill Q.C. and Christa FIELDEN (instructed by Selva & Co.) for the
Michael Fordham (instructed by Treasury Solicitor) for the Respondent.
permission to appeal to the House of Lords refused.