CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 10 décembre 1992

.sDD6737AE { font-size:11pt } .s211D6B00 { margin-top:0pt; margin-bottom:0pt; line-height:normal; widows:0; orphans:0; font-size:8.5pt } .sBB9EE52A { font-family:Arial }                             AS TO THE ADMISSIBILITY OF                         Application No. 20991/92                       by M.S.                       against the United Kingdom           The European Commission of Human Rights sitting in private on 10 December 1992, the following members being present:              MM.    C.A. NØRGAARD, President                  S. TRECHSEL                  F. ERMACORA                  G. SPERDUTI                  E. BUSUTTIL                  G. JÖRUNDSSON                  A.S. GÖZÜBÜYÜK                  A. WEITZEL                  J.-C. SOYER                  H.G. SCHERMERS                  H. DANELIUS            Mrs.   G. H. THUNE            Sir    Basil HALL            MM.    F. MARTINEZ                  C.L. ROZAKIS            Mrs.   J. LIDDY            MM.    L. LOUCAIDES                  J.-C. GEUS                  M.P. PELLONPÄÄ                  B. MARXER                    Mr. H.C. KRÜGER, Secretary to the Commission           Having regard to Article 25 of the Convention for the Protection of Human Rights and Fundamental Freedoms;         Having regard to the application introduced on 28 July 1992 by M.S. against the United Kingdom and registered on 26 November 1992 under file No. 20991/92;         Having regard to the report provided for in Rule 47 of the Rules of Procedure of the Commission;         Having deliberated;         Decides as follows:   THE FACTS         The applicant is an Indian national, born in 1950 and resident, for the time being, in Birmingham.   He is represented before the Commission by Messrs. Koutsoudi Sekhon & Company, Solicitors, London.         The facts of the present case, as submitted by the applicant and which may be deduced from documents lodged with the application, may be summarised as follows:         The applicant went to the United Kingdom for the first time on 9 June 1981.   He is a Sikh.   He went back to India on 25 April 1982 within his then permitted stay in England.   However, he returned again to the United Kingdom on 27 August 1984 and was granted leave for six months. That leave was later extended until 27 August 1985.   On 16 August 1985, within the time in which he was permitted to remain, he applied to the Home Office for permission to remain as a preacher.   At that time he had been offered employment by the Sikh Temple at Hitchin, Surrey, he being, and having since aged 20 been, a preacher.   However, the Temple withdrew the offer and eventually that application was dismissed in February 1987. Since then he has remained in the United Kingdom without permission.         On 6 August 1987 the Home Office sent a letter to the applicant's solicitors inviting them to submit factors to militate against deportation, which would normally result from the dismissal of an application for leave to remain.   The solicitor replied that the applicant wished to remain as a priest at the Sikh Temple in Birmingham. An attempt to interview the applicant, however, proved to be unsuccessful because he could not be found and on 29 April 1988 notice of intention to deport was sent to the applicant's solicitors.   An appeal against that decision was heard and dismissed by an Adjudicator on 7 February 1989. Leave to appeal to the Immigration Appeal Tribunal was refused on 25 May 1989.   It is not suggested that there was anything wrong in the proceedings to that date.   In accordance with the refusal of leave to appeal, on 3 August 1989 a deportation order was made.   That was subsequently suspended until a short time before 28 November 1990, on which date the applicant for the first time made an application for asylum which was refused by the Home Secretary on 6 February 1991 (the refusal being confirmed on 28 March 1991) in the following terms:         "You have applied for asylum in the United Kingdom on the grounds       that you have a well-founded fear of persecution in India for       reasons of race, religion, nationality, membership of a particular       social group or political opinion.         India has in recent years experienced considerable disorder which       the authorities have had to take measures to control.   As a result       of this disorder individuals of all groups have suffered.   However,       the Secretary of State, having considered all the available       evidence, does not consider Sikhs in India are a persecuted group       who have a claim to refugee status under the 1951 United Nations       Convention Relating to the Status of Refugees simply by virtue of       their religion or national origins.         Nevertheless the Secretary of State does consider individual       applications for asylum to see whether they fall within the terms       of the 1951 United Nations Convention.   This depends on the       circumstances in the individual case.         In support of your application you said at interview with an       immigration officer on 28 November 1990 that you did not wish to       return to India because you feared that your life would be at risk       there and that your family had been harassed by local police about       your whereabouts.   You said that you had been a member of the Sikh       Youth Federation since 1983 and that you had been a preacher on       behalf of the organisation.   You also said that a number of your       associates in the SYF had been murdered.   Furthermore, you said that       in 1979 you had been arrested after attending a demonstration,       detained and released the same day.         However, the Secretary of State has also taken into account that the       SYF is not a proscribed organisation in India and that by your own       account your involvement was at a low level.   You claim that in 1979       you were arrested and detained.   However it is noted that this       incident occurred before you joined the SYF and was a result of your       attendance at a demonstration against the authorities for increasing       bus fares and you were released on the same day.   It is also noted       that you successfully gained leave to enter as a visitor in August       1984 and despite your current claims that you left India to save       your life, you did not claim a fear of return to India until removal       directions for your deportation had been set in November 1990.         Having taken account of all the matters you have put forward in       support of your application and of the other matters set out in a       letter, the Secretary of State is not satisfied that you have a       well-founded fear of persecution in India within the terms of the       United Nations Convention Relating to the Status of Refugees and is       therefore minded to refuse your application."         The applicant applied for judicial review which was refused on 2 October 1991 on the grounds that there was no legal flaw in the Secretary of State's decision, the decision being "plainly one which was the only decision the Secretary of State could have made."   A renewed application to the Court of Appeal for judicial review was   refused on 10 June 1992.     COMPLAINTS         The applicant alleges that his imminent deportation to India would be in breach of Article 3 of the Convention.   He makes the following statement:         "The applicant became involved in active politics against his       Government, since he became a preacher at the age of 20, when he       discovered ... the suppression of Sikhs in India.   He had preached       the Sikh Religion in Talwandi, Bhutan District, Jallandar, Punjab       and Delhi.         During the summer 1978, a mass rally was held in the grounds of the       Golden Temple in Amritsar, India, to celebrate an anniversary of the       birth of Sikhism.   Sikh leaders made speeches and protests were made       against the suppression upon the Sikhs by the Government.   The       Indian Government suppressed the said rally by shooting at unarmed       protesters.   Many Sikhs were killed including several leaders.   The       applicant escaped death.   After seeing the unlawful killings of the       Sikh people the applicant decided to fight for the liberation of the       Sikhs.         In about November 1979 a major demonstration was held in Punjab by       the people against the unreasonable increase in bus fares in Punjab       and also against the ill-treatment of the Sikhs by the Government.       The Indian Government suppressed the said demonstration by shooting       upon the demonstrators.   Many were killed; several were arrested and       tortured.   The applicant was also arrested at the demonstration and       was released on the same day.         The applicant has known the Sikh Chief Sant Jarnail Singh       Bhinderwala who resided at the Golden Temple in Amritsar, India,       since 1977 and had delivered messages and news from the Sikh       community of the United Kingdom on the applicant's return to India       in 1981.   During his first visit to the United Kingdom the applicant       also collected funds for the Sikh cause and made contact with the       Sikh activists of the United Kingdom.         The Sikh Chief Sant Jarnail Singh Bhinderwala was first arrested for       murder, which was falsely framed against him.   He was later released       as many protests were made by the people.   When the Indian       Government troops stormed the Golden Temple of Amritsar in June 1984       Chief Bhinderwala and many other Sikhs were killed.   Three close       colleagues of the applicant were also killed and the applicant had       to go into hiding to escape arrest, as many arrests followed after       the storming of the sacred Golden Temple of the Sikhs.         After his arrival in the United Kingdom the applicant has       participated in many activities against the Indian Government.   He       had attended political gatherings and meetings.   The applicant       attended the Sikh Convention held in Wolverhampton from 27 September       1990 until 3 October 1990.   His picture had appeared in the weekly       newspaper called Awaza Quam which is a Punjab Weekly widely read in       the United Kingdom and also in India, which was issued on 4 October       1990.   That Convention was the 6th Convention of International Sikh       Youths for the building of Independent Khalistan.         The applicant also attended the Amnesty International meeting held       at Exeter university on 11 November 1992 and participated in singing       songs in praise of those fighting for human rights and for seeking       independence for the Sikhs.           As the applicant has participated in many Sikh meetings and       gatherings and because publication of his pictures and activities       were recorded in newspapers and letters, the Indian Government has       full knowledge of his activities against them.   The High Court's       refusal of the applicant's application for leave to apply for       judicial review was also reported in The Birmingham Post dated 4       October 1991.   The Indian Government now has full knowledge about       the application for asylum in the United Kingdom.         If the applicant were to return to India under the present       circumstances, he would be arrested, tortured, thrown into prison       and his life and liberty will be in grave danger.   He will be       severely persecuted for his past and present political activities       against the Government of India."         The applicant also alleges that the refusal of his application for judicial review constituted violations of Articles 6 and 13 of the Convention.     THE LAW   1.     The applicant has complained that the refusal to grant him asylum in the United Kingdom and the decision to send him back to India, where he claims to face a real risk of persecution and torture, constitute a breach of Article 3 (Art. 3) of the Convention, which provides as follows:         "No one shall be subjected to torture or to inhuman or       degrading treatment or punishment."         The Commission recalls the constant case-law of the Convention organs "that expulsion by a Contracting State of an asylum seeker may give rise to an issue under Article 3 (Art. 3), and hence engage the responsibility of that State under the Convention, where substantial grounds have been shown for believing that the person concerned faced a real risk of being subjected to torture or to inhuman or degrading treatment or punishment in the country to which he was returned" (Eur. Court H.R., Vilvarajah and Others judgment of 30 October 1991, Series A no. 215, p. 34, para. 103).         The Commission's assessment of the risk of ill-treatment to which the applicant may be exposed must be made in the light of all the material placed before it.   This assessment must be a rigorous one in view of the absolute character of Article 3 (Art. 3) of the Convention (ibid., p. 36, paras. 107-108).         The Commission notes that the British asylum authorities have considered the applicant's claims carefully, but have concluded that they are without substance.   The Commission observes that the applicant spent several years in the United Kingdom (1984 to 1990) without applying for asylum, only doing so when actually threatened with deportation for overstaying.   On the basis of the material submitted by the applicant, the Commission has no reason to doubt the view of the Secretary of State that the applicant is not a prominent Sikh activist or militant who is wanted by the India Government or would run a real risk of serious ill-treatment or persecution if he were returned to India.         The Commission therefore concludes that this aspect of the applicant's complaint is manifestly ill-founded, within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.   2.     The applicant has next complained that the refusal of his applications for judicial review of the Secretary of State's decision constituted a breach of his right to a fair hearing before an impartial tribunal in the determination of civil rights and obligations or a criminal charge.         However questions of political asylum give rise neither to a determination of civil rights and obligations nor a criminal charge (cf. mutatis mutandis No. 8118/77, Dec. 19.3.81, D.R. 25 p. 105 and No. 12364/86, Dec. 17.10.86, D.R. 50 p. 280).         It follows that this aspect of the case is incompatible ratione materiae with the provisions of the Convention, pursuant to Article 27 para. 2 (Art. 27-2) of the Convention.   3.     Finally, the applicant has complained that he had no effective domestic remedy for his Articles 3 and 6 (Art. 3, 6) complaints, contrary to Article 13 (Art. 13) of the Convention, which reads as follows:         "Everyone whose rights and freedoms as set forth in this Convention       are violated shall have an effective remedy before a       nationalauthority notwithstanding that the            violation has beencommitted                        by persons acting in an                       official capacity."         However, according to the constant case-law of the Convention organs, "Article 13 (Art. 13) cannot reasonably be interpreted so as to require a remedy in domestic law in respect of any supposed grievance under the Convention that an individual may have, no matter how unmeritorious his complaint may be: the grievance must be an arguable one in terms of the Convention" (Eur. Court H.R., Boyle and Rice judgment of 27 April 1988, Series A no. 131, p. 23, para. 52).         The Commission has found the applicant's substantive complaints under Articles 3 and 6 (Art. 3, 6) of the Convention to be manifestly ill-founded and incompatible ratione materiae, respectively.   In the light of the reasons for these decisions, it also finds that the applicant has no arguable claims under Articles 3 and 6 (Art. 3, 6) warranting an effective domestic remedy pursuant to Article 13 (Art. 13) of the Convention.   It follows that this aspect of the case is also manifestly ill-founded, within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.         For these reasons, the Commission, unanimously,         DECLARES THE APPLICATION INADMISSIBLE.   Secretary to the Commission             President of the Commission         (H.C. KRÜGER)                          (C.A. NØRGAARD)