England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE IMMIGRATION APPEAL TRIBUNAL

		Royal Courts of Justice Strand, London, WC2A 2LL Thursday 8th March 2001

LORD JUSTICE HENRY:

1. Mr Munir Ahmed appeals to us with the leave of the Single Lord Justice from the decision of the Immigration Appeal Tribunal of 15th February 2000, dismissing his appeal from the decision of Mr Bennet, the Special Adjudicator, who on 28th September 1998 refused his application for asylum. It will be seen that there was a finding that this applicant had been tortured by the police. There are parallel proceedings under Section 65 of the Immigration & Asylum Act, 1999, which Lord Justice Buxton deals with in his judgment.
2. He is a citizen of Pakistan. On 26th February 1998 (when he was 25) he arrived in the United Kingdom on a false passport, hoping to travel on to Canada. However, his false passport was discovered and he claimed asylum. He was held in custody, but released prior to his appeal to the Special Adjudicator.
3. He was interviewed by the Immigration Officer and gave an account which was largely consistent with his evidence when it was finally given. He told how he came from a family of Sunni Muslims who lived in the Punjab. His younger brother, Mohammed Saquib and his cousin Nasser Ahmed were members of an extremist Sunni Muslim movement, the SSP. There was considerable animosity between the Sunni extremists (as the SSP were) and the Shia extremists in the Punjab. Each group regarded the other as the infidel. The appellant's brother and his cousin had been party to criminal actions with the SSP. The appellant was not involved in these activities, but nonetheless he was picked up and detained by the police on a number of occasions, and on the last occasion subjected to torture. Soon after this experience he fled the country.
4. The Convention defines a refugee as any person 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 his country of nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country."

5. The Special Adjudicator found that he had been tortured by the police, that he had a well-founded fear of persecution, that that fear of persecution was well-founded, either in Gujarat, where he came from, or in Pakistan as a whole. But he found that the treatment to which the police had subjected him was not caused by any of the Convention reasons cited in the definition of refugee above. So he appealed to the Immigration Appeal Tribunal, from whom he now appeals to us.
6. The demographic background of Pakistan is that 96% of the population are Muslims. Seventy-six percent of those are Sunni Muslims, and most, but not all, of the remainder are Shia Muslims. Both the Sunnis and the Shias have extremist elements. But as will be seen there was no evidence that the police force, or a majority of the police force, were Shias or belonged to Shia political parties. It was accepted that both the appellant's younger brother and his cousin were involved in this group of militant Sunnis. Such militants are opposed to any interpretation of Islam other than theirs, and believe that those who do not share their interpretation are infidels.
7. The appellant's account of the police's interest in him was largely accepted by the Adjudicator:

"Mr Ahmed's evidence was substantially in accordance with what he had said at interview. He told that:

a) although some five years ago, he had been involved in the Sunni group of which Mohammed Saquib had been a member, he had ceased to be involved shortly afterwards - and he had not been involved now for some four years. The group had been called Sipah Shahaba.

b) [His brother] Mohammed Saquib had been involved in the killing of Shia Muslims. He (Mr Ahmed) had never himself been involved in killings or woundings of Shias or in encouraging activity of that sort.

c) There had been three or four occasions when he had been arrested and detained for substantial periods. There had been other occasions when he had been arrested for 1-2 hours and simply been beaten and released.

d) The first of those substantial periods of arrest had been at the end of 1995 (see above para 2(d).

e) The second of those incidents had been in January 1997 (as opposed to early 1996 in interview) when he had been arrested and accused of possession of illegal weapons. He had been detained for 10-11 days. During that period he had been questioned as to the whereabouts of Mohammed Saquib and the weapons which he (Mohammed Saquib) had. The police had punched him and slapped him in the face. Mr Ahmed had told the police all that he could (which had not been much).

f) The next substantial occasion on which he had been detained had been in March 1997. Again the questioning had been directed to the whereabouts of Mohammed Saquib - but the police had also asked whether he (Mr Ahmed) had himself been involved and/or had accompanied Mohammed Saquib and taken part in activities with him. They had also questioned him with a view to determining whether he had been involved in a recent incident in which two or three Shias had been killed in a disturbance. Mr Ahmed had been aware that the Sipah Shahaba group had been involved in the killings and that his brother and cousin had been named in local newspapers as having been responsible.

g) On that occasion, the police had beaten him continuously for 3-4 hours and had placed lighted cigarettes on his feet and the lower parts of his legs. They had also threatened to charge him with involvement in the killings.

h) He feared that if he were to return and were charged with murder, the police would kill him in the police station.

i) After his release from custody in April 1997, he had gone to the family farm. The police had, from time to time, started visiting there. He had always been able to hide from them. But their coming had led him to believe that it was no longer safe for him to remain there."

8. There were two pieces of evidence independent of him. The first is a First Information Report. It is dated 10th March 1998 and deals with a Shia procession. It states:

"In the procession mourning parties were mourning. Mohallah Mughalpura resident, Mohammed Saqib who are active members of SSP along with their companions fired upon the procession due to which few persons of the procession injured but the nature of the injuries was minor. They have interfired [sic] in our creed. They have fired unauthorisedly. The firing party was Mohammed Saqib, Naseer Ahmed and Munir Ahmed ... who are residents of our Mollah and are recognised by me"

Below, under the heading "Action by Police" it says:

"As per above statement, Mohammed Saqib, Naseer Ahmed, and Munir Ahmed ... has done a crime ... by firing and interfering in other creed. A case against him has been registered under section 295/A, 298,324 PPC. Special Report along with copy of FIR is being sent to higher authority for information."

9. The purported identification of Munir Ahmed was plainly mistaken, because on 10th March 1998 he was in detention in the United Kingdom. However, a warrant for his arrest was issued in Gujarat requiring him to be produced before the magistrate on 9th May 1998. That warrant was not backed for bail.
10. The second piece of evidence was a medical report from Mr Andrew Mason FRCS. He observed a number of scars, including those identified by Mr Ahmed as being the sites of cigarette burns. His view was that Ahmed's scars were in accordance with his account of their causation. The scars identified as having been caused by cigarette burns were in his view, typical of the scars which one would expect from an injury inflicted by a lighted cigarette. For this and other reasons the doctor recorded that Mr Ahmed's scars were in accord with his account of their causation.
11. Having summarised all the facts the Adjudicator, in paragraph 10 reminded himself that throughout 1997 the conflict between the Sunni SSP and the Shi'ites continued. Against that background he saw nothing improbable in Mr Ahmed's account of his brother and cousin being involved with SSP, and therefore coming to be under suspicion of having been involved in killings, woundings and other public order offences, or the police calling at his family home to arrest him - both on suspicion of involvement and in order to obtain information from him of his cousin's whereabouts, and as to the type of weapons which they had or, when he was arrested, the police using violence on him. Nor was there anything surprising in the fact that after his arrest and detention in March 1997 he had gone to the family farm with a view to avoid further trouble from the police, but that ultimately they had come there to look for him.
12. Against all that background the Adjudicator concluded as follows:

"However, it [is] quite clear from Mr Ahmed's evidence that the cause of the action which the police took against him ie the arrests and the maltreatment which he received, was and the cause of any action which they may take if he is returned to Pakistan will be primarily the desire to obtain information as to the whereabouts of his brother Mohammed Saquib and his cousin Nasser Ahmed and the type of weapons which they had, and secondly because they believe that he too might have been involved in Moahmmed Saquib's and Naseer Ahmed's criminal activities. There is not the slightest evidence to support the proposition asserted in Mr Rintoul's skeleton argument

a) the police attributed a political opinion to Mr Ahmed;

b) the action which the police took against him was taken (and therefore any action which may be taken against him will be taken) because of the opinion which they attribute to him.

I have no hesitation in rejecting those propositions as being wholly absurd. As a matter of common sense, it is plain, beyond peradventure, that the causes of the police action were those which I have set out at the beginning of this paragraph and that they will be the causes of any action which the police may take if Mr Ahmed should be returned."

13. When the Immigration Appeal Tribunal came to consider that paragraph, they reminded themselves of the fact-finding role of the Special Adjudicator. Over 1997 there had been tension between the extremist groups of both Sunnis and Shias. Having considered all the evidence the IAT concluded:

"We do not accept that the appellant was selected by the police by reason of his perceived religious or political opinions. There is no evidence that Sunnis are persecuted, nor is there any evidence that the Sunni political parties are persecuted."

Later on they conclude:

"Furthermore, there is no indication that the action of the police was based in any way upon the ideology of the brother or the appellant or the cousin, or any other member of the family. The activity is based entirely on the criminality of various members of the family."

14. Mr Scannell for the appellant cannot sensibly attack any of the findings of primary fact made by the Adjudicator. Appeal from the IAT to us lies only on a point of law. But he seeks to attack the finding of fact encapsulated in the question which the Adjudicator posed, and which both he and the IAT answered, namely as to what was the nature of the police's interest in this appellant. Mr Scannell mounts his challenge, as I understand it, by saying that the Adjudicator did not take all the evidence into account, that he concentrated on the criminal/terrorist aspects of Mr Saquib's and Mr Naseer Ahmed's activity at the expense of the other side of the coin, namely the political and religious side of that activity. So it is said they asked themselves the wrong question.
15. It seems to me that that submission is unsustainable. It is clear that both the Adjudicator and the IAT asked themselves the correct question. But there simply was no evidence that the police were anti-Sunni, anti-SSP or in any way interested in the religion or politics of this appellant, his brother, or his cousin. The right question was asked, and answers which accorded with common-sense were given.
16. As a second line of defence before the Adjudicator, it was submitted on the appellant's behalf that the mistreatment of the appellant at the hands of the police was persecution by reason of his membership of a particular social group, namely his family. This way of putting it hits an evidential rock immediately: apart from Saquib, and Nasser Ahmed and he himself, there is no evidence of any other member of the family being significantly ill-treated or harassed by the police. Those who live locally have not moved away.
17. As the Adjudicator found, neither Mohammed Saquib nor Naseer Ahmed was himself at risk of persecution for a Convention reason. It is plain from the answers to the questions given that the police would not be in the least interested in them for their political or religious opinions. What they were concentrating on and what they were interested in were their crimes and terrorist activity. The Adjudicator asked himself the right question, approached the matter correctly in law, and arrived at a conclusion which was well within the wide ambit of his discretion.
18. That was my understanding of how Mr Scannell put the case on the first day. Dissatisfied with his efforts, he returned the next day with six further pages of dense submissions. We adjourned to read and discuss these. Because of the amount of court time he had already utilised, we restricted him to 20 minutes advocacy for these second thoughts. Having heard them, and having read the judgment of Lord Justice Buxton (with which I agree), I am not persuaded to add to the judgment given.
19. Accordingly, in my judgment this appeal fails.

LORD JUSTICE BUXTON:

20. I agree.
21. There was extremely disturbing evidence in this case, accepted by the Special Adjudicator and set out by my Lord in paragraph 7 of his judgment, that Mr Ahmed had been subjected to serious torture by the police in Pakistan as recently as 1997. That evidence was strongly corroborated by the independent and authoritative medical report of Mr Mason FRCS. Those matters will no doubt be taken extremely seriously by the Adjudicator in the proceedings under section 65 of the 1999 Act. In those proceedings, as Miss Giovanetti made clear on instructions, it will be the position of the Secretary of State that the Adjudicator should have regard to the conclusions of the Special Adjudicator in the proceedings before us, but he will not be bound by them, whether or not further evidence is adduced at the section 65 hearing.
22. However, in the present proceedings, which are concerned with the position under the Refugee Convention and not with that under Article 3 of the European Convention on Human Rights, the applicant was faced with the initial difficulty that the Special Adjudicator had found, as had the IAT, that what had occurred to Mr Ahmed, deplorable though it might be, had not been inflicted on him for a Convention reason; and, by the same token therefore, could not found a fear of future persecution for a Convention reason should he be returned to Pakistan. Mr Scannell addressed the court for some two hours in support of the appeal but, despite repeated entreaties from the bench, never faced up to what were findings of fact in the lower court. The only significant argument that he advanced was that the Special Adjudicator and the IAT had regarded the fact that Mr Ahmed's relations were criminals associated with a terrorist movement as decisive without more of the issue of "causation": meaning thereby the reason for Mr Ahmed's having been persecuted. There was no justification in either of the determinations for that criticism.
23. On the following morning, as my Lord has described, Mr Scannell returned with a new argument, that was developed both orally and in writing. The best extrapolation of the argument that I can achieve is that even if the police had not persecuted Mr Ahmed for a Convention reason, he had come into the police's hands in 1997 through false identification by a Shia opponent. That had been "discriminatory treatment" on grounds of race or religion, on the part of the Shia opponent, and if as a result of coming into the police's hands for such a reason the party thereafter suffers persecution, then, adopting the dictum of Simon Brown LJ in Ravichandaran [1996] Imm AR 97 at p109, such persecution had been, albeit indirectly, inflicted for a Convention reason.
24. This was an argument never raised before either tribunal below or in any of the grounds of appeal. So far as evidence had been given at all about the false accusation, it was simply part of the background facts to the main complaint, of misbehaviour by the police And in any event the argument is wholly misconceived. For discrimination to engage rights under the Convention, it has to be discrimination for which the state is responsible. That will be the case when either the state itself performs the act of discrimination; or the discrimination is by a non-state agent, and the state is unable or unwilling to protect the citizen from it. In the case of the Shia informer, there is absolutely no ground for saying that he is on either of those grounds to be counted as a non-state agent for whose acts the state is vicariously liable. There was no evidence of combined persecutory activity by the informer and the police. There was no evidence of persecution of Sunnis by the state, as the IAT indeed specifically found in the passage cited by my Lord in paragraph 13 of his judgment.
25. It is therefore not surprising that this argument played no part in the presentation of the case before the Special Adjudicator or the IAT, because there is no basis whatsoever for it.

LADY JUSTICE ARDEN:

26. I agree that the appeal should be dismissed for the reasons given by Henry and Buxton LJJ. There is no basis on which this Court can interfere with the finding of fact that the persecution of Mr Ahmed by the police in Pakistan was not for a Convention reason. Nor is there any evidence to suggest that the persecution was because of Mr Ahmed's membership of a particular social group. Likewise there is no evidence that engages the responsibility of the State of Pakistan for the false information laid by the Shia informant which led to the First Information Report, to which Henry LJ has referred. Despite the piecemeal way in which the appellant's arguments were developed, I am satisfied that those are the issues on this appeal.
27. I express no view with respect to the question whether there are substantial grounds for believing that the removal of Mr Ahmed to Pakistan would involve the risk of treatment (for which the state is responsible) contrary to Article 3 of the European Convention on Human Rights. That issue will of course involve careful consideration of all relevant circumstances, but is not before us.
ORDER: Appeal dismissed; assessment of the appellant's public funded costs. (Order does not form part of approved Judgment)