Tribunal decisions

The decision

IMMIGRATION APPEAL TRIBUNAL

JS (Hamtaseh –Risk on return) Afghanistan [2005] UKIAT 00061

Date of Hearing: 5 January 2005
Date Signed: 28 February 2005

Date Determination Notified 4 March 2005

Before:

Mrs J A J C Gleeson (Vice-President)
Mrs E Hurst JP
Mr MJ Griffiths

Between

Secretary of State for the Home Department
Appellant

and

Respondent

DETERMINATION AND REASONS

For the Appellant: Ms K Evans
Home Office Presenting Officer

For the Respondent: In person

1. The Secretary of State appeals with permission against the determination of an Adjudicator, Mr R R Billingham, who allowed the claimant’s appeal against the Secretary of State's refusal to recognise him as a refugee, and the setting of removal directions to Afghanistan. It was common ground that the claimant is a credible witness.
2. Permission to appeal was granted on the basis that the Taliban, the only claimed agent of persecution, had been overthrown and replaced by an interim Government committed to the implementation of democracy. Further, the Secretary of State contends that the Adjudicator’s finding of continuing risk to those who opposed the Taliban is at variance both with the claimant’s evidence and the objective evidence. The Adjudicator had failed to establish from whom the claimant now feared persecution, nor who were the new players in Afghan politics who posed a risk to the claimant on return. There was no evidence of past persecution by non-state agents, and the Adjudicator had failed to consider internal relocation.
3. The core facts are that this claimant with some friends left the Harakate Muslim group (which opposed the Russians) and in 1992 formed a small group called Hamtaseh of which the principal activity was to set up a library of books and political documents to disseminate ideas of freedom, with particular emphasis on women’s rights, operating in Kabul. The group attacked and managed to destroy a tank belonging to General Masood, then went underground. The claimant went into hiding to try to conceal his identity, but was picked up and beaten badly on the head and hands (in 1999, by the Taliban). He was released thanks to the good offices of a friend of his, a Pashtun. From 1999 until coming to the United Kingdom in 2000, the claimant kept a low profile, working as a tailor and carrying out his political activities in secret. The claimant considers that he has evidence of corrupt behaviour by a member of the ruling Council, often the same people who ruled under the Taliban.
4. the Adjudicator’s core findings of credibility and fact appear at paragraph 12 of the determination –
“12. On the issue of persecution and ill-treatment I find that save for one arrest by the Taliban when he was ill-treated, the appellant has not shown that he had a serious programme of persecution in his past. This is said against a background where, despite his political activity, which I consider he has shown to be credible, he has survived remarkably well in the harshest of situations by the application of his intelligence and skill. This does not mean in my consideration that he would be exempt from persecution if he were to be returned. Although one approaches documents with some unease, there seems to be evidence that the appellant was known to the Harakate for his anti-doctrinal stance which I feel sure would get him into trouble of some severity were he to be returned bearing in mind the direction in which the Afghan state seems to be going. It is difficult to say that he would be persecuted by the state since it is hard in Afghanistan to say what is the State. Mr Karzai represents according to the West a modernising force which the claimant might well favour but there is little evidence to suggest that these ideas are widely held in this conservative Muslim country. The appellant came across as naïve but convinced that his politics were sound. Despite the apparent absence of the Taliban, however, it would be true to say that many of the players in Afghan politics hold views hardly dissimilar to those of the Taliban and therefore remain a danger to the appellant.
12.1 I found that the appellant has put together a good case on his own behalf, argued with more passion than many advocates. I found that for the most part he was credible and hones, and despite him not showing that he had been persecuted in the past, I am satisfied that with the energy of his political beliefs having been displayed in Afghanistan he would put himself in danger on return to the extent that he has demonstrated a well-founded fear of persecution.”
5. The Adjudicator ruled out state persecution, and did consider sufficiency of protection (paragraphs16-17). However, he considered that the general sufficiency of protection available in Afghanistan was not open to the claimant on the specific facts of the appeal. He did not explain why not (paragraph 17). The conclusions on Article 3 are similarly unreasoned. However, as the claimant is a credible witness and the factual findings are clear, the Tribunal proceeded to determine the appeal again on the basis of those findings and the submissions made to us at the hearing.
6. For the Secretary of State, Ms Evans accepted that the claimant was a credible witness. However, she argued that the Adjudicator’s conclusions did not follow from his reasoning in paragraph 12; the Taliban were no longer in power. She accepted that if the claimant were at risk, the question of internal relocation did not arise as he originally came from Kabul. He was Muslim, and anti-communist. He had liberal ideas which had led him to leave Harakate and form Hamtaseh. There was no evidence that Harakate or the state were looking for him. She asked the Tribunal to allow the Secretary of State's appeal.
7. The claimant represented himself. He told the Tribunal that Hamtaseh originally consisted of only 15 people, who lived and worked in Kabul. He was in touch with Hamtaseh; its main activities were working for political education, and trying to distribute what had been achieved through hard work. Hamtaseh was based upon one idea; that life belonged not just to an individual, but to society, for whom it should be kept safe. The founder had a problem under the Taliban and so had others, but they were no longer in Afghanistan. The claimant himself had been leader of the group for a time. Even under the Taliban, most of the members were safe.
8. The party operated 95% underground and the rest of the party were still working underground in Kabul. There were now a maximum of 10 members, but more people working with them. Most of the members were safe, and there was no serious persecution. The Hamtaseh members in Kabul were safe because they were underground and unknown. If recognised, they would be in danger.
9. The claimant’s wish was to reform Afghanistan not just politically but to reform the Muslim religion, inside and outside Afghanistan. No one had the heart to speak of reforming religion in Afghanistan. The claimant was now the leader of Hamtaseh outside Afghanistan, and since coming to the United Kingdom, he had taken a more international approach to the Hamtaseh idea. He had been in touch with an inter-religious and international group for peace (the Unification Church of the Rev Dr Sun Myung Moon, sometimes known as ‘the Moonies”). He had been invited by them to join, but was not yet a member of the Unification Church.
10. He had also been helping to ease ethnic tensions in the Afghan diaspora in Birmingham, working with the Afghan Youth and Family Association, campaigning for order in Afghan society, and explaining his new multi-faith and multi-cultural approach to Islam. The group had been very active since 9/11 in the Afghan community in Birmingham, and had been founded by the claimant and another former Hamtaseh member. It had big meetings and was in contact with the Secretary of State.
11. In reply, Ms Evans indicated that the issue of changing the fundamental nature of Islam was a new idea in this context. She was aware that the claimant had entered into his new life in Afghanistan with his customary vigour; he was doing good work with the Afghan Youth and Family association in Birmingham.
12. The Tribunal reserved its determination for postal delivery, which we now give. We do not consider that the Adjudicator erred in not spending more time on internal relocation, since realistically internal relocation in Afghanistan is to Kabul, and this group is already Kabul-based.
13. We accept that this claimant is a well-intentioned and truthful witness, who was a founder member of a small group in Kabul providing library facilities and campaigning (quietly) for human rights, especially women’s rights. We accept that he has continued to do good works in Birmingham and believes passionately in his political aims, which appear to be undergoing some evolution since his arrival in the United Kingdom four years ago. Although we approach the benefits (for Hamtaseh) of possible alignment with the Moonies with a degree of caution, we accept that he is sincere in his view of this as a possible way of expanding Hamtaseh’s remit worldwide.
14. There is some difficulty in the Adjudicator’s reasoning at paragraphs 12, 16, and 17 but we do have subjective and objective evidence of the risk to other group members from the claimant himself.
15. The risk to members of Hamtaseh was low under the Taliban and has fallen further; even on his own evidence, the rest of his group in Kabul is currently safe and the risk on return for the claimant accordingly falls below the standard required to engage either the Geneva Convention on the Status of Refugees and Stateless Persons 1951 and its protocols and the European Convention on Human Rights and Fundamental Freedoms 1950.
16. The Secretary of State's appeal is allowed.

Date: 28 February 2005 J A J C Gleeson
Vice-President