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You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Arshad, Re Application for Judicial Review [2003] ScotCS 242 (01 September 2003) URL: http://www.bailii.org/scot/cases/ScotCS/2003/242.html Cite as: [2003] ScotCS 242 |
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OUTER HOUSE, COURT OF SESSION |
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P186/03
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OPINION OF LORD WHEATLEY in Petition of MOHAMMED ARSHAD Petitoiner; for Judicial Review of the Determination and Reasons of the Adjudicator to dismiss the Appeal
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Petitioner: Simpson; Bennett & Robertson
Respondent Carmichael; H. MacDiarmid, Solicitor to the Advocate General for Scotland
1 September 2003
[1] The petitioner was born in Pakistan on 1 January 1968. He was detained in Stranraer on 17 February 2001 by the Immigration and Nationality Department, at which time he made a claim for a political asylum, maintaining that he had arrived in the United Kingdom only three days earlier on 14 February 2001. On 10 May 2001 the respondent, who is the Secretary of State for the Home Department, refused the petitioner's claim for political asylum. The petitioner appealed against the refusal and on 20 November 2001 the adjudicator refused his appeal. It is against that refusal that the petitioner has taken the present judicial review. In particular the petitioner seeks a declarator that the adjudicator's decision of 20 November 2001 to refuse him political asylum was one which no reasonable adjudicator could have reached and was therefore unreasonable, and further that the consequent decision to remove him from the United Kingdom was also unreasonable and unlawful.[2] The petitioner's position is fully set out in the adjudicator's decision. In summary, the petitioner is a 33 year old Pakistani national who lived in a village in Punjab. His family were Sunni Muslims; the majority of the inhabitants (about 80%) of the village were Shi'a Muslims. The petitioner's family was reasonably wealthy and his father actively supported the SPS, a political movement which appears to have centred around the religious view of Sunni Muslims. In May 1994, the petitioner's father had a bitter argument with a neighbouring landowner, who was a Shi'a Muslim. A day or so later, when the petitioner and his grandmother had gone to Lahore, the petitioner's father, mother, two brothers and a sister were brutally killed in their house. Shi'a extremists were suspected as being responsible for this atrocity and a number of them were arrested, but subsequently acquitted of the murders.
[3] Following the murders the petitioner and his grandmother moved to Faisalabad where they stayed for a year and a half, and thereafter to Karachi. The petitioner maintains that there is currently significant difficulty in selling his family land and property in his native village because of the history of the massacre and the animosity of the majority Shi'a Muslims. In September 1994, when the petitioner was still living in Faisalabad, he returned to his native village to visit the family graves, and in the cemetery there was altercation in the course of which the petitioner's grandmother suffered a broken leg and the petitioner himself was stabbed in the thigh. However, the petitioner was himself charged with various offences arising out of this incident and detained in police custody for several days.
[4] The petitioner then obtained a legal passport from the Pakistan authorities in 2000. Following negotiations with an agent, the petitioner was given another passport of a different colour, and presented this on his arrival at Heathrow Airport, London on 14 February 2001. The petitioner indicates that he has no current knowledge of the whereabouts of the agent since that time. The petitioner claims that he was advised to go to Glasgow where the cost of living was lower than London, and very shortly after his arrival in Scotland he was apprehended by the authorities.
[5] In these circumstances the appellant argued before the adjudicator that he had a claim for asylum under the Refugee Convention on the grounds that he had a well founded fear of being persecuted for reasons of religion and imputed political opinions, and also on the basis of articles 2,3,5 and 6 of the Human Rights Convention. Based on his factual submissions, the petitioner indicated that his main fear was that if he were forced to return to Pakistan he would be in danger from members of the Shi'a sect, and that further the police and the enforcement authorities were corrupt and unable to offer sufficient protection from the Shi'a community. He apprehended that if he did go back to Pakistan he would be attacked and possibly killed, if not harassed, ill-treated and persecuted by the Shi'a community.
[6] The respondent's position in respect of the petitioner's claim was that those individuals whom the petitioner had indicated were the cause of his difficulties could not be regarded as "agents of persecution" within the definition of the Refugee Convention, and that the appellant had not shown that there was a sustained pattern of persecution against him knowingly tolerated by the authorities. The respondent also pointed to the record of the Pakistani government in responding to outbursts of sectarian violence. Finally, the respondent's position was that the appellant was not credible, and that in a number of detailed respects his claims in support of persecution were simply not made out.
[7] In her Determination and Reasons issued on 20 November 2001 the adjudicator, having in paragraphs 7 and 8 considered the definition of persecution in terms of the Refugee Convention, and noted that the burden of proof in appeals of this sort lie on the petitioner, reached certain conclusions, which are found in paragraphs 43-49. In short, the adjudicator found that the petitioner had not discharged the burden of proof incumbent on him of demonstrating that he had a well-founded fear of persecution for a Convention reason. She therefore dismissed the appeal under both the Refugee Convention and the Convention of Human Rights. She also disbelieved significant parts of the petitioner's evidence.
[8] In these circumstances the petitioner has taken the present judicial review. He challenges the decision of the adjudicator to dismiss the appeal on the grounds that it was unreasonable. The petitioner submits that the evidence before the adjudicator was sufficient to show that he had, on the balance of probability, a well founded fear of prosecution if he was required to return to Pakistan. The petitioner has tabled six particular grounds of appeal directly on the question of persecution (Cond.6 (a)-(f)) in his petition. In essence these claims relate to an alleged failure in the part of the adjudicator to understand properly the definition of persecution and to apply the appropriate test to the petitioner's circumstances. It is also said that the adjudicator was wrong to conclude that there had not necessarily been failures in the police investigation or the court procedures in respect of the trial of the alleged perpetrators of the massacre of the petitioner's family, having regard to the terms of the Country Information and Policy Unit Pakistan Assessment (the CIPU report) issued in April 2001, and also because the adjudicator had noted from the petitioner's case that he would be killed, if not harassed, ill-treated and persecuted by the majority Shi'as in his neighbourhood. These circumstances should have satisfied the adjudicator that the petitioner had a well founded fear of persecution by Shi'a Muslims. Further, it was said that the adjudicator had failed to take appropriate guidance from the United Nations Convention on Human Rights guidelines in considering the appropriate definition of persecution.
[9] There were two further grounds of appeal lodged by the petitioner, namely (g) that the adjudicator had failed to have adequate regard to the CIPU Report noted above in respect of the conditions prevailing in Pakistan, and (f) that the adjudicator had failed to apply the relevant standard of proof in considering the petitioner's case.
[10] In these circumstances Mr Simpson, counsel for the petitioner, presented a series of careful arguments directed at questioning the correctness of the adjudicator's conclusions. In essence he submitted that the adjudicator had misdirected herself not by misunderstanding the proper definition of what is meant by persecution, but by wrongly applying it to the petitioner's circumstances. He pointed to the claim (at paragraph 12 of the Determination and Reasons) that the petitioner belonged to a minority Muslim sect in the area where he lived, that there had been a bitter argument shortly before 13 May 1994 between his father and a neighbouring landowner who was a Shi'a, and that almost immediately thereafter his family were massacred. He also submitted that the petitioner had described in general terms (paragraphs 16-25) the difficulties he had experienced with Shi'a Muslims, and referred to the incident in September 1994 when there had been some form of altercation during a visit to his family grave. Counsel then turned his attention to the findings in fact made by the adjudicator and noted that she accepted that in May 1994 the appellant's family were massacred in a bout of sectarian violence. She had also found that the appellant had difficulty in selling his land and property in his home village. In these circumstances the adjudicator had described the petitioner's claim as not being one of persecution by the state, but rather by individuals in it, and referred to the appropriate tests in respect of non-state agency persecution which are found in the case of Horvath v Secretary of State for the Home Department [1999] IMM. AR121. In that case the court said (at p.144):-
"It is our view that the line between discrimination and persecution may be crossed when the State becomes involved or when the State does not provide a "sufficiency of protection" for its citizens against the most blatant forms of discrimination by sections of the populace."
(a) ..........................
(b) ..........................
(c) it is carried on by others and the authorities are unwilling, or are unable to
provide a minimum level of protection against such discrimination required by international law." In other words, counsel argued, it is the failure of the state to provide protection which the court in Horvath found converted discriminatory conduct into persecution, thus providing an objective test to what persecution meant.
[12] Counsel further submitted that the adjudicator had before her the CIPU report dated April 2001. In that assessment it was noted that police corruption was reported to be widespread (paragraph 5.2.1) and that the police standards of professionalism were low (paragraph 5.2.3). In paragraph 5.3.54 et. seq, the Report noted a considerable history of conflict between Sunni and Shi'a Muslims, and also that there had been outbreaks of violence between the two sects (paragraph 5.3.56). While the government had been quick to respond to outbursts of sectarian violence, their action had not effectively curtailed sectarian murders (paragraph 5.3.57). In these circumstances, counsel maintained that it was clear that the authorities were almost complicit in their attitude towards the persecution of Sunni Muslims, and accordingly, in terms of the situation described in paragraph c) cited in the case of Horvath, the adjudicator should have found that the petitioner had established that he would be subject to persecution should he return to Pakistan. The petitioner's family had been massacred and it appeared that no one was prepared to assist in investigating the murders and bringing those responsible to justice. This appeared to be confirmed by the CIPU Report. Reference was also made to McDonald on Immigration Law and Practice (5th ed) p4.80 para 12.21. In the circumstances the adjudicator should have found that the petitioner had a real fear of prosecution should he be returned to Pakistan.[13] Counsel also submitted that the adjudicator's finding on the credibility of the petitioner was unsatisfactory. At paragraph 34 of her adjudication, after narrating the circumstances of the massacre, she found that the appellant had not been "hiding" in Faisalabad. This conclusion was based on the two visits made by the petitioner to the family village during that period. The adjudicator therefore found that the petitioner had therefore not passed the appropriate test of establishing that he had a well founded fear of persecution. These findings by the adjudicator, it was said, ignores paragraph 5.2 of the CIPU report, which provided evidence of police ineptitude in the face of discriminatory conduct. As there had been no conviction following the massacre, the petitioner had every reason to apprehend persecution. The adjudicator had made no positive findings on the appellant's claims (paragraph 25) that the police and other enforcement authorities are corrupt, and that they would be unable to offer sufficient protection to the appellant from the Shi'a community should the petitioner return, but rather would allow the Shi'a community to attack and possible kill, if not harass, ill-treated and persecute the appellant.
[14] Turning to ground (g), counsel for the petitioner again referred to his submission that the adjudicator had failed to have sufficient regard to the CIPU report referred to above. In R v Secretary of State ex parte Javed 2002 [QB 129], the court held at (pp153-154) that it was necessary to make a strict and careful examination of the background and supplementary information put before a tribunal in order to see if there was a well founded fear of persecution. Counsel maintained that the objective evidence in the CIPU report confirmed and supported the petitioner's fear of persecution, and that had the adjudicator properly considered the details of the report she would have agreed with that submission.
[15] Finally, counsel maintained that the adjudicator had applied the wrong standard of proof in considering the petitioner's case. While it was accepted that the burden of establishing a well founded fear of persecution lay with applicant, it had been held in the case of R v Secretary of State for the Home Department, ex p Sivakumaran [1988] AC 958 (per Lord Keith at 996), that for a fear to be well founded, the question was whether there was a real and substantial risk, or a real likelihood of persecution. This clearly indicated a lesser standard of proof than establishing that persecution would occur on the balance of probabilities. The adjudicator had not applied that standard in the present circumstances and her decision should be overturned.
[16] In reply, Miss Carmichael, counsel for the respondent, made two preliminary submissions which, she maintained, were fatal to the petitioner's case. First of all, the court could only reduce the adjudicator's decision if it could be demonstrated that no reasonable adjudicator could have come to the view which she did, in the terms of the Wednesbury principles. The petitioner had not established this. Secondly, the major difficulty for the petitioner was the adjudicator's conclusion (at paragraph 41 of the determination) was to the effect that she simply found the petitioner to be incredible. The adjudicator had dealt with the law as if what the appellant had said was true, and concluded that even on that basis the petitioner had not satisfied the appropriate tests. The petitioner had made no substantive attack on the adjudicator's findings on credibility, other than that there appeared to be insufficient justification for her conclusion that the petitioner had been 'hiding' in Faisalabad. But the essence of the adjudicator's findings on credibility indicate that while she accepted that a number of the petitioner's immediate family were murdered in 1994, she did not accept that there had been any subsequent persecution against the petitioner. She noted in particular that there had been no incidents involving the petitioner for over 61/2 years (paragraphs 36-40), even on his own evidence. There was, and could not be, any clear challenge to these findings.
[17] The respondent's counsel then submitted that notwithstanding the view that the adjudicator took on credibility, she dealt also appropriately with the law that applies to this case. She correctly identified that the petitioner's case was not about the possible risk of arrest or persecution, but rather about the failure of protection against harassment or worse (paragraph 42). However, she had also found from the CIPU report that there was a satisfactory adequacy of protection (paragraphs 44 and 45). The test laid down in the House of Lords case of Horvath 2001 1AC 489 made it clear that the applicant was not entitled to seek an absolute protection from all risk, but rather sought to introduce a practical standard, which takes into account the duty of the state to protect its own nationals (per Lord Hope at 494 A-F; Lord Clyde at 511 A-D). In the context of the present case the appellant relied heavily on the failure by the State to convict anyone for the massacre of his family; but there had been a prosecution and the fact that those charged were acquitted proves nothing. Counsel suggested there may be a variety of reasons why acquittal might follow a charge, and the simple fact of an acquittal does not necessary mean that there was a failure of available protection, or that the petitioner had therefore passed the relevant test laid down in the case of Horvath.
[18] Counsel further submitted that the relevant question is not what happened after the murder but what would happen if the petitioner returns to Pakistan at this time. The adjudicator has looked at the background material and concluded that there is no risk to the petitioner. The petitioner relied on paragraph 5.2 of the CIPU Report, but that is concerned with the excesses of the police rather than their failure to investigate complaints; in any event paragraphs 5.3.54, 5.3.56, and 5.3.57 of the Report indicate that in the past clear action has been taken by the Government in these situations. The fact that sectarian murders occur does not demonstrate that there is insufficient protection available, or that there was an unwillingness to supply that protection on the part of the state. Counsel therefore maintained that the adjudicator had correctly found that there is sufficient protection available in Pakistan to the petitioner (paragraph 45). Nothing appears to have happened since the murders which would amount to any danger to the petitioner, other than what is described (paragraph 16) in general terms as arguments and clashes. The petitioner's averments, it was, submitted, come nowhere near to meeting the appropriate tests laid down in the case of Horvath. In respect of the graveyard incident referred to in paragraph 16, this appears to be an isolated incident and not to have been brought about by a lack of protection. In these circumstances the petitioner has not been believed, and further has not established a well-founded fear of persecution. He has therefore not passed the test in Sivkumaran (per Lord Keith at 994-995) to the effect that it is necessary for the petitioner to demonstrate objectively that there was a real and substantial risk or a real likelihood of persecution for a Refugee Convention reason.
[19] I have no doubt that the respondent's arguments are to be preferred in this case. Despite the careful presentation by the petitioner's counsel, it is clear that the present petitioner has in no way demonstrated that he has a well-founded fear of persecution should he return to Pakistan. Article 1 of the Refugee Convention, as the adjudicator notes, defines a refugee as someone who, 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 petitioner seeks to bring himself under that definition and in that matter the burden of proof is on him. The standard of proof, as the adjudicator has again rightly identified from a consideration of the case of Sivkumaran, is whether the petitioner has demonstrated that he has a well-founded fear of persecution because there was a real and substantial risk, or a real likelihood of persecution for a Refugee Convention reason. It is accepted that this test reflects a significantly lower standard of proof than that of showing that persecution will occur on balance of the balance of probabilities. The adjudicator was also well aware that she should be particularly careful in cases of this kind when making adverse findings on the credibility of those seeking asylum. In these circumstances the adjudicator has applied all the correct tests and standards.
[20] However, on considering all the material before her, the adjudicator found that during the past 61/2 years there is no evidence, even on the petitioner's testimony, of him being persecuted, nor has he established that there is any inadequacy of protection by the Government against sectarian violence. There can be no doubt the adjudicator was fully entitled to make the findings which she did. While there may well have been a sectarian based massacre involving members of the petitioner's family in 1994, there is no objective evidence to suggest that there was a failure on the part of the authorities to investigate and prosecute persons for that crime, nor is there any objective evidence to the effect that since then the appellant has been subject to actual or potential harm from the Sunni Muslim majority in his own village. As in the case of Horvath there may be circumstances or occasions when the police are inept or incompetent, but there is in the present case no objective evidence to the effect that there is an institutional absence of protection for someone in the petitioner's circumstances should he be required to return home. As the adjudicator noted, it is not the occurrence of serious crime that is the appropriate test of convention protection as described in Horvath, but rather a complete failure on the part of national institutions to protect the population. The petitioner has not established that in this case. Accordingly, it appears to me that the adjudicator was fully entitled to conclude that any ill-treatment by individuals apprehended by the petitioner in the present case is not of sufficient gravity to cross the threshold into the realms of persecution, and that, in addition, there is presently a sufficiency of protection available to the petitioner from the state. In these circumstances the petitioner has failed to establish his case. The adjudicator also clearly found, for good and sufficient reasons, that the petitioner was in many respect not a credible witness. However, the adjudicator was careful to note that even if she had accepted the petitioner's evidence in full, the quality of evidence and information before her would not have passed the relevant tests described in the authorities to justify the petitioner's application for asylum.
[21] In these circumstances the petition will be dismissed.