Tribunal decisions

The decision

KH
Heard at Field House

HH (Adjudicator reasoning - Risk on return) Afghanistan [2003] UKIAT 00138
Date: 25 September 2003
Prepared 3 October 2003

IMMIGRATION APPEAL TRIBUNAL

Date Determination notified:

11 November 2003.....

Before:

Mr H J E Latter (Chairman)
Mr A Smith
Mr J B Wilson

Between

APPELLANT

and

Secretary of State for the Home Department

RESPONDENT

Representation:
For the appellant: Moss S Iqbal of Counsel instructed by White Ryland, solicitors.
For the respondent: Ms C Hanrahan, Home Office Presenting Officer.

DETERMINATION AND REASONS

1. The appellant, a citizen of Afghanistan, appeals against the determination of an Adjudicator (Mrs N Bircher) who dismissed his appeal against the decision made on 23 July 2002 giving directions for his removal following the refusal of his claim for asylum.

2. The appellant left Afghanistan on 15 April 2002 travelling by lorry through Iran and Turkey to the United Kingdom. He made a clandestine entry on 20 June 2002 claiming asylum the following day. He claimed to be in fear of persecution from the Taliban and the Northern Alliance due to his Pashtun ethnicity and his activities fighting for the Taliban. The appellant said that in 1992 his father had been arrested and killed by General Dostum. He claimed that his elder brother joined Hezb-e-Islami to take revenge for his father's death. His brother fought for Hezb-e-Islami for four years. In 1998 Taliban men came to his home and arrested his brother and took him to a detention centre. He was released on condition that he would be available to fight for the Taliban in future. In 1999 when the Taliban were in need of people to fight against the Northern Alliance people came to his home and took his brother to the frontline. After four months his brother was released and came back home. It was the appellant's claim that during the Taliban regime he had been arrested many times and beaten for not having a long beard and not praying five times a day.

3. After the events of 11 September 2001 the Taliban started to recruit people to fight against the Northern Alliance and the Americans. His brother was taken to the frontline and was killed in action. After one week his uncle came and took the appellant to his home. After a month the Northern Alliance found out about this and came to his home and beat his uncle. His uncle was warned that if the Northern Alliance found him he would be killed. It was then decided that the appellant should leave the country.

4. The Secretary of State concluded that the appellant did not qualify for asylum. It was his view that the transitional administration empowered under the Bonn Agreement was acting in accordance with basic principals and provisions contained in international instruments on human rights and international humanitarian law. He was not satisfied that the appellant would be at risk of persecution because of his Pashtun ethnicity or because of any imputed political opinion. He would be able to move to an area where his ethnic group did not constitute a minority and where he would face no difficulties. There were authorities in Kabul to whom the appellant could appeal for protection should the need arise. The Secretary of State noted the claimant's concluding statement at interview that he had come to complete his education.

5. The appellant gave oral evidence before the Adjudicator confirming the contents of his statement. He said that his mother and uncle were still in Afghanistan but he had no communication from them. The Adjudicator did not accept the appellant's evidence. She said that he had produced no corroborative evidence to support his claims. Looking at the objective evidence she found that there were sufficient systems in place to provide the appellant with protection. The transitional administration appeared to be operating effectively and recent reports show that there was a level of security and protection available to the appellant to protect him on return.

6. In the grounds of appeal it is argued that the Adjudicator failed to take into account relevant evidence when assessing the claim as a whole. Her finding that she did not accept the appellant's account was unreasonable as she failed to give any clear or coherent reasons. It was not clear what corroborative evidence the Adjudicator required. It was unclear what evidence the adjudicator had taken into account. When the Adjudicator referred to finding on balance that there were sufficient systems in place to provide the appellant with protection, this indicated that the wrong standard of proof had been applied.

7. Miss Iqbal adopted these grounds in her submissions. She argued that there had been no proper consideration of the issues. The Adjudicator had not explained why she did not believe the appellant's account. It was unclear what corroborative evidence should have been supplied. The appellant had three bases for his fear of persecution. His father had been employed in a good position in the Najibullah Government. His brother had joined the Hezb-e-Islami. In 1998 both the appellant and his brother had been forced to fight for the Taliban. The appellant would be at risk because of his association with all these organisations. The Adjudicator should have made specific findings on these issues.

8. It was not satisfactory just to say that sufficient protection was in place. The appellant would be at risk in Kabul. There was evidence that the Northern Alliance were targeting other groups. The appeal should be remitted for a fresh hearing.

9. Ms Hanrahan referred to the CIPU Report arguing that the Adjudicator had been entitled to come to the conclusion that there would be sufficient protection for the appellant in Afghanistan.

10. The Adjudicator did not believe the appellant's evidence. Ms Iqbal argues that the Adjudicator has not given adequate reasons for that finding. She argues that it is insufficient simply to say that he produced no corroborative evidence to support his claims. The Tribunal accepts that the Adjudicator's reasoning is not adequately expressed. The issue is whether the lack of reasoning leaves the Tribunal with a real as opposed to a forensic doubt as to the Adjudicator's findings on credibility: R v Secretary of State ex parte Atpularajah [2001] Imm AR 566.

11. In his decision letter dated 19 July 2002 the Secretary of State noted discrepancies between the accounts given by the appellant which are highlighted in paragraph 10 of his letter. During his asylum interview the appellant stated that he was taken to fight with the Taliban twice prior to his departure from Afghanistan whereas this was later contradicted when he said he was only taken to the front on one occasion. In his statement the appellant made no mention of being taken to the front on two occasions. In his interview he said that the Panjsheris came to visit his mother two and a half months prior to his departure from Afghanistan and on that occasion his mother was alone in the house. There was no mention of this incident in the statement but reference to a similar incident when the appellant claimed that both his mother and uncle were present at a visit by the Northern Alliance.

12. The Secretary of State also noted the appellant's concluding comment at his asylum interview that he came to complete his education. The appellant had not claimed to have any political affiliations to any organisation in Afghanistan. He noted that the appellant had travelled through a number of European countries without claiming asylum. Looking at these factors in the light of all the evidence, the Tribunal are not satisfied that there is any reasonable degree of likelihood that the claimant's account of why he left Afghanistan is true. In our view the Adjudicator's finding on credibility was correct even though she could have set out her reasons more clearly.

13. The Tribunal are not satisfied that any risk arises to the appellant from the fact of being a Pashtun. If he is returned to Kabul there is no reason to believe that he will not be able to look to the authorities there for protection. The transitional administration includes Pashtuns as well as members of the other ethnic groups. Even if the appellant did fight for the Taliban for a short time the Tribunal are not satisfied that his low level involvement is such that he would be of any interest to the present authorities. The fact that his father held a good position during the Najibullah regime would not put the appellant at risk. It is only family members of senior officials who would now be at any risk. The Tribunal are not satisfied that it is arguable that the appellant's brother's involvement with Hezb-e-Islami would put the appellant at risk.

14. In our judgment the Adjudicator's conclusions were correct. The Tribunal are not satisfied that there is any reasonable degree of likelihood that the appellant would be at risk of persecution or a breach of his rights under Article 3 were he to be returned to Afghanistan.

15. This appeal is dismissed.

H J E Latter
Vice President