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The appellant claims this man made him walk with him to an open place of land nearby where he forced the appellant to perform oral sex on him whilst he held the knife to his throat before releasing the appellant. The appellant says he reported neither incident to the police because they would not provide protection and are known to be corrupt and homophobic. The appellant claims that homophobia is endemic in Jamaica; he says hostility towards gay men and lesbian woman is rife throughout the country and there is nowhere he could safely be returned to.
The respondent did not believe the appellant's account of events or that he was homosexual. The respondent took the view that those who harassed the appellant were not agents of persecution and any failure on the part of the police to apprehend the perpetrators did not show complicity in or support for such attacks. The respondent was also of the view that there were other parts of Jamaica to which the appellant could reasonably go. Representation before the Adjudicator 5. Both parties were represented at the hearing before the Adjudicator, the appellant by Mr Chelvan, who appeared before us.
The appellant gave evidence, as did his witness, Mr B. The Adjudicator's findings of credibility and fact 6. The Adjudicator's findings of credibility and fact merit inclusion in full. In paragraphs 25 to 40 of the determination she said, " In reaching a decision I have applied the burden and standard of proof previously set out in this determination. The appellant gave oral evidence that his sexual orientation is homosexual and the respondent is wrong to reject the fact that he is gay.
He described his own demeanour as feminine. The appellant said that it is obvious that he is gay, not straight, and said that he wears tight tops to show off his shape. The appellant says in his statement, dated 18 August , that he has known since the age of 11 years that he is gay. The appellant says he always liked the company of girls and had more in common with them than boys; he enjoyed dancing, shopping and chatting. The appellant said in oral evidence that his witness, Mr B, is a friend, but not a boyfriend, who has been known to him for 3 years. The appellant gave evidence of homosexual relationships he had formed in the past; he named a former boyfriend as C and a more recent one as H.
Mr B confirmed his own personal knowledge of these relationships and said he had been introduced to both C and H by the appellant.
Mr B said that it is within his own knowledge that the appellant is gay and described him as very effeminate; he said that both he and the appellant are very involved in the gay community in a city in the UK, where they live. In relation to the issue of the appellant's sexuality I accept his evidence. I am satisfied that he is homosexual.
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I find his evidence about this to be consistent throughout his claim, credible and supported by a reliable witness and plausible detail. I accept the evidence given by Mr B. I accept the evidence of the appellant that he had a difficult time in Jamaica; he was verbally abused because of his presumed sexual orientation.
He describes being referred to as "batty boy", a well known slang term for homosexuals in Jamaica. I find the evidence given by the appellant in relation to the incident in early , when a man alighted from a car, beat him and his friend and pointed a gun, to be credible.
The appellant gives a consistent account of the incident. In the circumstances of the incident I am satisfied to a reasonable degree of likelihood that the appellant was attacked because of his homosexuality. It is reported to have happened in an area where male prostitution is practised. Questioned about the incident in December , the appellant said that he was not injured, just "boxed and stuff like that", meaning he had been slapped to the face. I accept that this incident happened but I am not satisfied that there is a sufficient amount of evidence to show that the attack was because of the appellant's perceived sexuality, although he says he could have been identified as gay because he was dressed to go out.
I am not satisfied that the two major incidents complained of by the appellant posed a serious threat to him. In respect of the two most serious incidents he describes the opportunity was there, but not taken up, to do him considerably greater harm. I am not satisfied that there was a serious intent on the part of his assailants to do him serious harm.
I accordingly do not agree with the appellant's assessment of these two incidents as being occasions on which he "almost lost his life". Nor, as set out above, do I accept that the second incident is proved to be motivated by the appellant's sexual orientation. That is in no way to diminish the unpleasantness of the treatment received by the appellant or to condone such entirely unacceptable behaviour. The incidents, must, however, be assessed within the framework of asylum and human rights law and the general situation in Jamaica.
I am not satisfied that the appellant was genuinely in fear for his life when he left Jamaica or that he has a well-founded fear of persecution if returned to Jamaica. I consider there to be merit in the submission made on behalf of the respondent that the appellant's claim is undermined both by his delay in leaving Jamaica and his delay in applying for asylum after arriving in the United Kingdom. The delay in departing from Jamaica is not consistent with the appellant's claimed fear for his life. The appellant was cross examined about the 4 month delay in his leaving Jamaica; he said that he had been staying at a friend's house and was waiting for his mother to send him money.
Tribunal decisions
I do not consider the explanation the appellant gives for the delay in applying for asylum to be adequate or credible. He applied at the end of the period when his visa expired, apparently because he had not been advised to apply for asylum. These are not, in my view, the actions of a person arriving in the United Kingdom in fear of his life, regardless of the advice he did or did not receive. The appellant says, in effect, that he did not report the incident to the police in Jamaica because of their bad reputation and there would have been no point. It does not assist his claim, in spite of this explanation, to seek international protection before he looks for help in Jamaica.
The appellant's unwillingness to report to the police is not stated to be because he fears attracting adverse attention to his situation; he says he is readily identifiable as gay.
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In interview, apart from the two major incidents he describes as causing him to leave to Jamaica, the appellant says it was also because of the bad treatment he received from his stepfather and the friends he lived with after being thrown out by his stepfather. I accept the appellant's evidence in relation to these lesser events, but I am not satisfied that any of the treatment described amounts to evidence of persecution or ill-treatment to the necessary high threshold.
I am not satisfied there is such evidence in this case. It is argued that this appellant is particularly at risk because he can be readily identified as gay in Jamaica and his being a prostitute in the past.
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Whilst I accept that the appellant may be readily identified as homosexual and that he has acted as a prostitute in the past, I do not accept that these facts elevate his claim to the necessary threshold or put him at particular risk. His own evidence does not support that proposition. In the light of the evidence and the decided authorities on the issue, I am of the view that homosexuals generally in Jamaica, and this appellant in particular, do not face a real risk of really serious ill-treatment. This appellant was not the victim of any systemised attacks.
Paragraph 6. Amnesty International have said that the disbanding of the crime management unit implicated in numerous human rights abuses is a particularly welcome step, albeit not enough. Objective evidence makes clear the degree of disquiet and contempt many people in Jamaica feel and exhibit towards homosexual activity. Homosexuals are often the victims of the unpleasant and threatening acts. I am, however, of the view, based on the objective evidence taken as a whole, that the discrimination and homophobia in Jamaican society is not state sanctioned.
I am satisfied that there is a sufficiency of protection. In the light of my findings of fact, the issue of relocation does not arise. I come to my conclusions having considered all the documents, evidence, submissions and case law before me and not least the very competently prepared, comprehensive and helpful skeleton argument submitted by the appellant's representative. There are four grounds of appeal and permission was granted in respect of all of them.
The second, not pursued by Mr Chelvan at the hearing, was that the Adjudicator's findings in relation to the delay in departure from Jamaica and delay in claiming asylum in the United Kingdom are unsustainable. The third is that the Adjudicator erred in her finding that the appellant had not been persecuted in the past.
The fourth, that the Adjudicator erred in law in not finding that there was a future risk to the appellant on return to Jamaica. The Secretary of State's Concession 8. At the beginning of the first reconsideration hearing Mr Blundell made an important concession. He told us that, after careful consideration, the Secretary of State was not going to take any point in relation to sufficiency of protection in Jamaican homosexual cases.
He was not saying that the Secretary of State would not argue the point in very particular circumstances but, as a general rule, he would not argue that the authorities would provide a Jamaican homosexual with a sufficiency of protection. Furthermore, although there is no specific concession, Mr Blundell has not argued that this appellant or other homosexuals at risk of persecution in their home area should be expected to relocate within Jamaica.
This concession as to what is now the considered general policy of the Secretary of State has been an important factor in our consideration of this appeal.