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You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Malik, Re Determination of the Immigration Appeal Tribunal [2003] ScotCS 68 (13 March 2003) URL: http://www.bailii.org/scot/cases/ScotCS/2003/68.html Cite as: 2003 SCLR 422, [2003] ScotCS 68

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Malik, Re Determination of the Immigration Appeal Tribunal [2003] ScotCS 68 (13 March 2003)

FIRST DIVISION, INNER HOUSE, COURT OF SESSION
Lord President Lady Cosgrove Lord Carloway	XA156/01 OPINION OF THE COURT delivered by LADY COSGROVE in APPEAL under paragraph 29 of Schedule 4 to the Immigration & Asylum Act 1999 by MUHAMMAD RAFIK MALIK Appellant; against A determination of the Immigration Appeal Tribunal notified to the Appellant on 5 July 2001   _______

 

 

Act: Bovey, Q.C. Lindsays; Gray & Co., Glasgow (for the Appellant)

Alt: Drummond; H. Macdiarmid (for the Respondent)

13 March 2003

1. The appellant, who is a citizen of Pakistan, has appealed against the decision of the Immigration Appeal Tribunal, dated 1 August 2001, that his appeal against the determination of the special adjudicator should be dismissed. In his determination, dated 21 February 2001, the special adjudicator dismissed the appellant's appeal against the decision of the respondent to direct his removal from the United Kingdom and to refuse him asylum.
2. A person will be granted asylum in the United Kingdom if the Secretary of State is satisfied that he is a refugee. Article 1A(2) of United Nations Convention and Protocol relating to the Status of Refugees defines a refugee as a person who:

"----owing to 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."

3. The appellant gave evidence before the special adjudicator. He said that he had been involved in politics at a fairly high level in the Pakistan Muslim League. In 1994, when the Pakistan People's Party was in power, he was detained and ill-treated by the police. He was present with other Muslim League supporters at a demonstration outside the Supreme Court in order to protest against court proceedings being taken against the leader of the Muslim League. During the protest others attending broke into the Supreme Court building and caused a disturbance. He also stated that, as a result of his position within the Muslim League, he was able to acquire land as a political favour. He claimed that there are now three warrants for his arrest in Pakistan, the first in connection with the disturbance at the Supreme Court, the second relating to his acquisition of land, and the third to a disturbance outside a police station, which in fact took place sometime after he left Pakistan on 7 October 1999.
4. The adjudicator also had before him an Amnesty International Bulletin and a Pakistan Assessment, dated October 2000, from the Country Information and Policy Unit. He indicates that he gave great weight to these documents, which both come from recognised providers of background material. On the basis of the appellant's evidence and these documents the adjudicator found that the appellant was probably telling the truth about the fact that he had been involved at a fairly high level in the Muslim League; that he was detained in 1994, during which time he sustained injury; that he possesses land in Pakistan; that the police in Pakistan resort to ill-treatment and brutality; and that human rights abuses are perpetrated against some people detained in Pakistan. He also found that there was a real risk that the appellant was telling the truth when he said that he was present at and formed part of a demonstration outside the Supreme Court when others involved caused a disturbance; that because of his position within the Muslim League he was able to acquire land; that there are now three warrants for his arrest in Pakistan; that his wife and daughters have been harassed by police officers who came looking for him after he left Pakistan; that his brother has been detained and ill-treated; and that his period of detention in 1994 came about because of his political beliefs.
5. The adjudicator concluded that since the Pakistan People's Party, which was in power during the appellant's period of detention, no longer formed the government in Pakistan, the ill-treatment the appellant received in 1994 was irrelevant for the purposes of his appeal. In the adjudicator's view, the fact that the appellant was suspected, rightly or wrongly, of the three offences for which warrants were said to be in existence, did not indicate that there was a reasonable degree of likelihood that the charges he faces if returned to Pakistan had been brought against him because of his membership of the Muslim League. He considered that the appellant's case was not advanced by the fact that he was suspected of having taken part in the disturbance outside the Supreme Court on the view that it would be surprising if anyone other than Muslim League supporters were suspected of that offence. Further, he observed that people were wrongly accused of crimes in every country of the world, for a variety of reasons, including human error or inefficiency on the part of the police, rather than persecution on political grounds.
6. In presenting the appellant's appeal, Mr Bovey QC submitted that the adjudicator had erred in law in holding that the appellant did not have a well founded fear of persecution for reasons of political opinion, and in finding that the appellant did not face discrimination on a Convention ground. The adjudicator had failed to apply his mind to the question of whether what the appellant faced was persecution rather than prosecution. Looking at the three warrants together, and applying careful consideration to them, as the adjudicator was obliged to do, it was evident that the appellant had been selected as a target by reason of his membership of a political group. Two of the three warrants were suggestive of the use of state enforcement agencies against political protest or demonstration. The unlawfulness of the activities for which the appellant was being prosecuted did not, of itself, exclude persecution (Sivakumar v The Immigration Appeal Tribunal, [2002] INLR 310). The adjudicator had adopted the wrong approach to the assessment of risk and, in particular, had failed to apply his mind to the question of whether the appellant's membership of the Muslim League had made a positive or material contribution to the situation in which he found himself. Reference was made in this connection to the speech of Lord Hoffmann in R v The Secretary of State for the Home Department ex parte Shah [1999] 2 AC 629.
7. In considering this appeal it is important to bear in mind that the onus of proof was on the appellant to establish a "reasonable degree of likelihood " of persecution for a Convention reason if returned to his own country(R v Secretary of State for the Home Department ex parte Sivakumaran [1988] AC 958, per Lord Keith of Kinkel at 994). Moreover, he had to establish that the well-founded fear was current at the date of the hearing (Adan v Secretary of State for the Home Department [1999] 1 AC 293)
8. A "well-founded" fear contains both a subjective and an objective element. An applicant may in fact entertain a subjective fear of persecution. Whether that fear is well-founded in the sense that persecution is reasonably likely to occur if the applicant is returned to his own country is to be assessed objectively. That objective assessment may include consideration of the past events which have provoked his fear, but it may also involve examination of current circumstances in the applicant's country to see whether objective ground for fear still remains. As Lord Lloyd of Berwick said in Adan (supra), at page 308:

"This is not to say that historic fear may not be relevant. It may well provide evidence to establish present fear. But it is the existence, or otherwise, of present fear which is determinative."

9. The adjudicator had objective background material available to him to inform his assessment. In 1994 the Pakistan People's Party was in power. The Pakistan Muslim League, of which the appellant was a member, was the opposing party. In 1997, the Muslim League became the governing party and, in October 1999, following a military coup, a new regime came into existence. Both the Pakistan People's Party and the Muslim League then became non-government parties. The adjudicator indicates that he found nothing in the objective evidence to support the contention that the current regime, instead of bringing or pursuing criminal charges against Muslim League activists because they are suspected of crimes, does so because of their political beliefs.
10. We consider that the adjudicator was entitled to take the view that what happened in the past under a different government was not a determinative consideration in applying the "reasonable likelihood" test. We do not accept that, on the facts before him in this case, he erred in the objective assessment he was required to make: he was entitled to reach the view that the applicant had failed to demonstrate the existence of present well-founded fear.
11. In considering whether the appellant had established a reasonable degree of likelihood of persecution the adjudicator had to bear in mind that the mere fact that a person is subjected to a criminal prosecution does not mean that he is the subject of legitimate prosecution rather than persecution.
12. As was pointed out in Tientchu, unreported, Queen's Bench Division, 18 October, 2000, the UNCHR Handbook on Procedures and Criteria for Determining Refugee Status under the 1951 Convention suggests that prosecution for an offence against public order (for example, the distribution of pamphlets) could be a vehicle for the persecution of an individual because of the political content of the pamphlet. The prosecution may be politically motivated or the punishment extreme. The Handbook recommends that regard be had to the personality of the applicant, his political opinions, the motive behind the act, the nature of the act committed, and the nature of the prosecution and its motives.
13. Whether prosecution amounts to persecution will be a question of fact in every case. All the relevant circumstances require to be taken into account. In Sepet v The Secretary of State for the Home Department [2001] Imm AR 452 at 487 Laws LJ said this:

"---at the end the decision-maker is concerned to arrive at an overall judgment on the evidence in the case. He will have in mind that discriminatory treatment is at the core of what he is looking for."

14. We do not accept that the adjudicator erred in this case. We are satisfied that he gave due consideration to all the facts before him. Although he considered that no real reliance could be placed on the contents of the arrest warrants produced by the appellant, he accepted the appellant's evidence that three warrants existed for his arrest in Pakistan. The adjudicator had to determine on the facts presented to him whether the prosecution of the appellant was really a disguised persecution. He had regard to the political opinions of the appellant and the nature of the acts committed by him. He reached the view that there was nothing to suggest that the appellant was targeted as a member of a political group, or that he had been subject to discriminatory treatment for a Convention reason. That was a view he was entitled to reach on the material before him.
15. In these circumstances we consider that the appellant has not established error on the part of the adjudicator. His appeal is accordingly refused.