COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
(MR JUSTICE BEAN)
Strand, London, WC2A 2LL
B e f o r e :
LORD JUSTICE TUCKEY
LORD JUSTICE TOULSON
| AK (Afghanistan)
|- and -
SECRETARY OF STATE FOR THE HOME DEPARTMENT
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MR P PATEL (instructed by Treasury Solicitor) appeared on behalf of the Respondent.
Crown Copyright ©
Lord Justice Toulson:
"When a human rights or asylum claim has been refused, and any appeal relating to that claim is no longer pending, the decision maker will consider any further submissions and if rejected will then determine whether they amount to a fresh claim. The submissions will amount to a fresh claim if they are significantly different from the material that has previously been considered. The submissions will only be significantly different if the content (i) had not already been considered and (ii) taken together with the previously considered material, created a realistic prospect of success notwithstanding its rejection."
The Original Application
"After we arrived in my brother's house, the Police Kabul came to my brother's home and looking for my son Abdul Wali. They searched the house to interrogate and harassed us and then they took my brother with them to Kabul."
She went on to describe how she had not seen her husband and sons since then, but at a later date local police had come to her brother's house searching for them.
"… it is accepted that Pashtuns in some areas of the country face discrimination and harassment, which can amount to serious injustice and persecution. There is a sufficiency of protection within Kabul and internal flight to Kabul or other areas of the country where Pashtuns are not in the minority, is an option. As a result claims based solely on the Pashtun ethnicity will not generally qualify for asylum or humanitarian protection. A grant of asylum would only be appropriate where an individual is able to show that because of specific facts relating to him/her there was not a sufficiency of protection available and internal flight was not an option."
The letter then turned to the issue of specific factors and commented on the affidavit from the appellant's mother as follows:
"With regards to the copy of a translated Affidavit dated 22 February 2005 that shows your client's mother, a sister, wife and children have now refuge in Pakistan, your client has failed to provide the original document. Furthermore, an affidavit from a family member cannot add probative or corroborative weight to your client's claim."
It dismissed the copy of a letter from the ARCS as un-translated and therefore its provenance was un-established.
Judicial Review Proceedings
"With respect to the letter purportedly from the Afghan Red Crescent Society (ARCS)… we do not consider this document to be genuine. We have obtained a letter from ARCS, dated 20 January 2006, which advises that the letter whilst bearing ARCS emblem and stamp, is a fake, which did not originate from ARCS. A copy of this letter was served on you by the Treasury Solicitor on or about 24 January 2006. We first advised you that that was the view of ARCS in early January 2006. Your client has produced in response a 6-page manuscript letter, stamp-dated by you 10 January 2006, and has very recently produced a type written letter dated 16 June 2006. However, there is nothing in these letters which will cause us to alter our view of the authenticity of the ARCS letter on which your client seeks to rely. We do not consider it likely that Mr Walizada of ARCS is not giving his true opinion of the authenticity of the letter … [relied on by the appellant]."
The writer went on:
"This is a departure for your client in this case. You will recall that his account of events was believed in its entirety by the Adjudicator, and until this point, your client could claim to be credible. However we take the view that his credibility has been significantly damaged by the submission of a letter in support of his claims which is a fake."
The letter then dealt with the letter from Lieutenant General Mohammad Ahmadazi as follows:
"You have not sent us the original of the letter of Lieutenant General Mohammad Ahmadazi… Accordingly, and bearing in mind your client's lack of credibility, this document cannot be considered as genuine and, furthermore, a letter from a family member (Mr Ahmadadzi is a cousin of your client's mother) cannot be considered a providing independent corroboration or your client's claim."
On 25 July 2006, the Home Office wrote a further letter dealing with the appellant's mother's affidavit, to which I will return.
The Judgment of Bean J
"Taking the evidence as a whole, I cannot say it is irrational or unreasonable of the Secretary of State to take the view that there is no reasonable prospect of a different conclusion about the general risk to a Pashtun returned to Kabul now than that reached by the Adjudicator in this case in 2002."
"I regard it as intrinsically unfair, save in the most obvious cases, that an applicant who has given evidence and has been cross-examined before a judge and whose credibility has been upheld should later be treated as a liar by the decision-maker without his having the opportunity to have that proposition tested before a judge."
But the judge continued:
"But even if the March 2005 letter is genuine, it is of very little assistance to the Claimant. It does not say when where why or for how long the Claimant's family members were detained, and it does not bear on the risk or otherwise to him if he is returned to Kabul."
"The Secretary of State's response to this is to say that the document is a copy and that 'furthermore, an affidavit from a family member cannot add probative or corroborative weight to your client's claim'. As a general proposition this would be far too sweeping."
But he went on to take it as being specific to the claimant's case. The judge's conclusion was that if it were for him to make a decision whether the rule 353 threshold was passed, he might well conclude that it was, but that he could not say that the Home Secretary's conclusion was irrational or Wednesbury unreasonable.
"The question is not whether the Secretary of State himself thinks that the new claim is a good one or should succeed, but whether there is a realistic prospect of an adjudicator, applying the rule of anxious scrutiny, thinking that the applicant will be exposed to a real risk of persecution on return … The Secretary of State of course can, and no doubt logically should, treat his own view of the merits as a starting-point for that enquiry; but it is only a starting-point in the consideration of a question that is distinctly different from the exercise of the Secretary of State making up his own mind."
Did the Home Secretary ask himself the right question?
"An affidavit from a family member cannot add probative or corroborative weight to your client's claim."
As to the first reason, the Home Office was later supplied with the original document. As to the second reason, I have referred to the judge's comment that as a general proposition this was far too sweeping. I agree, but that was all that was said about the content of the affidavit in that letter. There is no trace here of the writer pausing to consider what an independent tribunal might (not would) make of the affidavit and giving anxious scrutiny to that question.
(1) The affidavit of a family member could not be considered as providing corroboration for his claim.
(2) The appellant's credibility had been undermined by reliance on false documents purporting to come from ARCS.
(3) The affidavit did not explain why the Kabul police had searched for the appellant in Logar province, and therefore there was no reason to suppose that he would face persecution in the Kabul region.
"However, there is nothing in these letters that will cause us to alter our view of the authenticity of the ARCS letter on which your client seeks to rely. We do not consider it likely that Mr Walizada [the signatory of the head office letter of ARCS] is not giving his true opinion of the authenticity of the letter."
"I find the appellant's account of events that took place to be entirely credible. There was ample opportunity for him to embellish his account which he did not do."
Lord Justice Ward:
Lord Justice Tuckey:
Order: Appeal allowed.