England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE ASYLUM & IMMIGRATION TRIBUNAL
[AIT No. HX/14099/2003]

		Royal Courts of Justice Strand London, WC2
		26 January 2007

1. LORD JUSTICE SEDLEY: Permission to appeal in this case was given by Senior Immigration Judge Gleeson in the following terms:

"1. The appellant contends that it was not open to a reasonable Tribunal to find, on the evidence before it, that there was no current interest in him as a proselytising Ahmadi, despite his involvement with the attempt to rebuild a mosque, and the opposition of his Sunni uncle. It is arguable that the Tribunal has applied too high a standard of proof to the appellant's account.

"2. These grounds of appeal are, just, arguable.

"3. Permission to appeal is granted."

2. The test for permission to appeal is a realistic prospect of success; see CPR 52.3.6(a). A point which is "just arguable" does not reach this threshold.
3. The appellant, a Pakistani national of the Ahmadi faith, arrived here in May 2002 and claimed asylum on grounds of religious persecution. His application was refused and his appeal to an adjudicator failed. But on a statutory review, the case was remitted for a fresh hearing. It is against the adverse outcome of that re-hearing before Immigration Judges Markham David and Grant in a determination given on 20 March 2006 that the appellant now appeals.
4. As is well known, Ahmadi Muslims in Pakistan do not enjoy the constitutional recognition given to orthodox Sunni followers of Islam. They are also exposed in many areas to violence at the hands, in particular, of members of Jamaat-e-Islami. The appellant's father, whose family was one of two Ahmadi families in his village, was killed by these zealots in 1985. In 1999 the appellant was helping to rebuild the Ahmadi mosque which had been destroyed by Jamaat-e-Islami members 15 years before. The work party was attacked by opponents, aided by police officers. One of its members, the appellant's maternal uncle, was shot dead. Others, including the appellant, were arrested and beaten with sticks. They obtained their release after three weeks by paying a bribe and promising not to attempt to rebuild the mosque. The AIT considered it possible that there was a genuine legal obstacle to the rebuilding, but there is no way of knowing whether this was so.
5. The appellant's paternal uncle, a Sunni, took advantage of the situation to bring an armed party on to the appellant's farmland in order to take it over. The appellant fled to Rajanpur and then, two years later, to Karachi. He was told indirectly that his whereabouts were known and that he was to be arrested for preaching the Ahmadi faith. His cousins, who belonged to Jamaat-e-Islami, came to Karachi looking for him. He fled first to Bangkok and then to the United Kingdom.
6. The appellant's case was that he had a well-founded fear of further persecution by Jamaat-e-Islami or Khatme-Nabuwat members, against which the authorities were unwilling or unable to protect him. The AIT found that his accounts were discrepant and, in relation to his religious activity, exaggerated. They accepted that Ahmadis were legally marginalised and forbidden to preach, but not that being an Ahmadi by itself brought a real risk of persecution. They noted that the observance of the Ahmadi faith continued without impediment and observed:

"The appellant has not complained that he has been forced to deny his faith at any time or to admit to being a non-Muslim."

7. The case, therefore, turned in the AIT's judgment on whether the appellant faced a real risk of persecution by reason of preaching and proselytising. As to this, they said at paragraphs 21 to 22:

"21. In his SEF statement the appellant wrote that he preaches as an essential part of his faith. He did not however specify when he began preaching, where he carried out his preaching or how successful he had been in proselytising. Although he claims that he was more specific in a statement which we wrote in his own language and handed to his solicitors we do not accept that they would have failed to pass on such a statement to the Home Office or that they would have failed to have it translated for our benefit. His solicitors are highly knowledgeable about the Ahmadi religion and they have conducted many asylum claims on behalf of Ahmadis. They are able to speak Urdu and they would be sensitive to any information given to them by an appellant, particularly information which is so relevant to his case. If the appellant is trying to blame his solicitors he is doing himself and his case a disservice. The first concrete reference to preaching is to be found in his interview and again it does not appear in the general narrative which the appellant gives in reply to the first question asked of him. Towards the end of his interview he was asked, 'Did you ever preach the Ahmadi faith?' and he replied, 'Yes, in Rajanpur I used to and I also used in the local mosque there as Secretary in the same work.' Allowing for the poor quality of the interpretation it seems that the appellant is saying that he preached in Rajanpur and in his local mosque but if that was the case and if that was the reason why the Khatme-Nabuwat was so interested in him then we find that he would have volunteered this specific information in his SEF.

"22. At the hearing the appellant went into greater detail and [tells] how he persuaded others (namely his father's sister and two schoolboys) to embrace the Ahmadi religion but if that was the case we find that he would have mentioned it in his SEF statement which is a full account of his story."

They concluded at paragraph 23:

"23. We find that the appellant's attempt to persuade us at the hearing that he had actually converted other people to the Ahmadi faith goes even further than he did in his interview and we find that he has exaggerated his role as a preacher to bolster his claim for asylum. In any event on his account once he had left his home village we find that the local Khatme-Nabuwat had achieved their objective in ridding themselves of the appellant. We do not believe that even if they pursued the appellant as far as Rajanpur they would then have pursued him over a distance of several hundreds of miles to Karachi. They had nothing to gain from doing so. They had prevented the rebuilding of the village mosque, the appellant's uncle had taken over the family farm and, if the appellant did preach in Rajanpur, they had chased him away."

8. The AIT went on to reject the claim that the appellant had been followed to Rajanpur or traced to Karachi by his enemies. They also doubted the account of the paternal uncle seizing the family's land on the somewhat odd ground, I have to say, that the uncle would have done it many years earlier if he was going to do it at all. But this finding was not material to the outcome. Nor was the scepticism the AIT went on to express about the circumstances of the rebuilding of the mosque, or about the appellant's escape from the mob led by his uncle. They concluded at paragraph 31:

"31. On the basis of our findings on credibility the appellant can return to his home village. In the alternative we find that it would not be unduly harsh for someone who (on the basis of his own evidence) managed to exist without an income between May 1999 and September 2001 to return either to his in-laws in Rajanpur or to his friend in Karachi where there are clearly sufficient Ahmadis to justify their own mosque and resource centre. He is not the subject of any interest on the part of the authorities. His human rights claims will stand (or in this case fall) with his asylum appeal."

9. The first and main ground of appeal advanced by Mr Cooray (who, if I may say so, has put the appellant's case both clearly and crisply, for which we are indebted to him) is that the AIT's finding that the appellant had not complained of being forced to deny his faith was perverse, given what he had said at interview in answer to a question about why he feared arrest if were he returned. This was thought by Mr Cooray to have been the following:

"The reason is the same as the mosque and that I have been negated from preaching the Ahmadi faith because my uncle is saying that I should leave the Ahmadi faith but I believe in Ahmadi faith."

The manuscript on the record sheet is certainly not easy to read, but it is clear on examination, and Mr Cooray candidly accepted this when we examined it together, that that is not quite what it says. It begins:

"The reason is the same reason as the mosque and that I have been reported for preaching the Ahmadi faith…"

The AIT were therefore right on this particular score.

10. Next, however, Mr Cooray challenges as irrational the failure of the AIT to accept that every Ahmadi is required, by virtue of his faith, to preach his faith to others; so that the appellant's failure to mention it until a relatively late stage, which is what caused the AIT to be sceptical of it, was immaterial. It would, Mr Cooray submits, have been taken for granted by the appellant, and should have been taken for granted by the Home Office and the AIT when he declared himself to be an Ahmadi.
11. This argument is, in effect, an argument that every practising Pakistani Ahmadi is a potential refugee. It was disavowed before the AIT by the appellant's experienced advocate, no doubt because a long succession of cases shows that it is not a viable argument in the absence of additional special factors exposing the individual asylum seeker to an identifiable risk of persecution. It remains a question to be decided, not by reference to the tenets of the Ahmadi faith which calls on the faithful to propagate it, but by what the fact-finder makes of the individual before him or her. That is what happened in this case and no error of law or of approach can be discerned in it.
12. The same, I think, is true of Mr Cooray's last, more general, point that the AIT's fact-finding process was flawed because it gave weight to immaterial matters such as the current unlikelihood of renewed attacks in the appellant's home village, because it overlooked the ongoing threat to all practising Ahmadis from Sunni zealots, exemplified by the attack on the appellant's local mosque, and because its evaluation of some of the appellant's case as implausible resulted from its adoption of an ethnocentric United Kingdom standpoint -- for example, the AIT's disbelief that the appellant's mother would have gone to the police station to enquire about him.
13. I am bound to say that some of the fact-finding that I have described above, although I have not quoted directly from it, seems distinctly strained. But it concerns issues which have little, if any, bearing on the risk to the appellant in asylum terms. The essential issue was whether, were he to be returned, he faced a real risk of persecution as an Ahmadi, whether in his home village or, if removal from there was necessary, in Rajanpur or Karachi. The AIT's conclusion that he did not, because the mosque was no longer a local issue, because the uncle's land grab was an accomplished fact, and because the appellant was not a proselytiser, did not depend on the detailed chronology of the uncle's scheming or on the manner of the appellant's escape. These things, although dealt with at some length and, if I may say so, with an unnecessarily heavy hand by the AIT, at most confirm their scepticism, arrived at on independent grounds, about the appellant's reliability as a witness on those matters which undoubtedly did count.
14. This was not, therefore, an appeal which at any stage had a realistic prospect of success, despite Mr Cooray's most competent endeavours to present it otherwise, and I, for my part, would dismiss it.
15. LORD JUSTICE MAURICE KAY: I agree and have nothing to add.
16. LORD JUSTICE LAWS: I also agree that the appeal should be dismissed for the reasons given by my Lord. I would like, respectfully, to underline my Lord's statement at the outset of his judgment that a conclusion that grounds of appeal are "just arguable" does not reach the threshold for permission to appeal specified in CPR 52.3.6, namely that the court considers that the appeal would have a real prospect of success or that there is some other compelling reason why the appeal should be heard.

Order: Appeal dismissed.