England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE ASYLUM AND IMMIGRATION TRIBUNAL
[AIT No: AA/07690/2007]

		Royal Courts of Justice Strand, London, WC2A 2LL
		10th September 2008

Lord Justice Sedley:

1. Mr Nicholson renews this application for permission to appeal following refusal on sight of the papers by Scott Baker LJ. His client, the applicant, is the son of a violent Afghan militia leader who in 2004 was executed after a summary trial for an appalling series of murders. The son makes no attempt to defend his father; on the contrary he says he himself is now at risk and therefore entitled to humanitarian protection for two main reasons. One is that it is probable that his father's execution was designed to protect the head of his faction whom the father could otherwise have implicated. If so, it is said the applicant too may be targeted by the same elements who now enjoy state power and were apparently responsible for the killing of his elder brother at the family home in Kabul not long after the father's execution. The other reason is that the applicant may well be directly at risk from the families of his father's many victims.
2. His account was found credible by the first immigration judge who, however, dismissed his appeal. His positive findings were directed to stand when are consideration was ordered, but the single judge who conducted it again dismissed the appeal. His essential reason was that, granted all that the appellant had credibly recounted, no real risk to his own safety was shown.
3. Mr Nicholson's attack on this conclusion is that it amounts to an undermining of the very premise of credibility on which the reconsideration was expressly directed to be based. I do not accept this. What has so far happened and what the applicant now subjectively fears in consequence are of course matters of fact. With a possible exception to which I will come in a moment, these were duly left standing. But whether the fear is objectively well founded is a matter of judgment which the testimony of the appellant himself, however honest, cannot determine.
4. One critical element of the judgment, that the appellant would not in fact be at risk if he were returned, concerned the identity of the assailants who had killed his elder brother. Neighbours had told the appellant that these were government agents who had also removed potentially damaging materials and had specifically asked where the appellant himself was. Mr Nicholson contends that this was a finding of fact by the first immigration judge, though -- and I have not canvassed this with him today -- I have not been able to spot this myself. But his contention that the second immigration judge was wrong to dismiss this as mere hearsay is not easy to sustain. The second immigration judge at paragraph 6 accepts that the neighbours told the appellant that these men were also looking for him and his younger brother, but he was "not persuaded that these armed men actually made such enquiries". This, I accept, may be on the very margin of what was open to the second immigration judge but I am not prepared to say that by itself it could sustain an appeal. It does, however -- and this I do leave open -- raise a potentially material question about how far an immigration judge has to be "persuaded" of a fact before giving it weight; see this court's decision in the case of Karanakaran v SSHD [2000] All ER 3 449; INLR 122; Imm AR 271. Nor do I think that there is anything directly appealable in the second immigration judge's reasoning to the effect that nobody could suppose the appellant himself to be carrying information which might implicate the same people as his father might have implicated in the militia's crimes.
5. But what I do think has arguably been lost sight of is the reality of a risk that the families of the father's victims would take revenge on the appellant by way of blood feud. This was spoken to by evidence summarised by Mr Nicholson in paragraph 8 of the adjourned reconsideration submissions that he put before the AIT and now puts before this court. Indeed it may be precisely because, as the second immigration judge considered, there was no reliable evidence that it was government agents who had killed the elder brother that there exists by parity of reasoning the possibility that it was revenge-seekers. Yet the entirety of the second immigration judge's findings on this, to my mind, more cogent limb of the claim is to be found in paragraph 9:

"Although the Appellant, in the second limb of his appeal, states that he would be the victim of revenge attacks from the relatives of his father's victims I conclude that this is highly unlikely. The Appellant has never been a target by any of these relatives at any stage whilst living in Afghanistan and there is no evidence to suggest that he would be in the future. The objective evidence does not support the Appellant's apparent subjective fear."

6. It seems to me distinctly arguable, notwithstanding Scott-Baker LJ's view to the contrary, that this is a material lacuna in the second determination. Unusually, its materiality may depend on the extent to which this immigration judge has decided to marginalise the neighbours' account that the assailants had asked where the appellant and the younger brother were, for if this were to be given any appreciable weight, as arguably I accept it should have been, it might well have gone some way to establishing an objective justification for the appellant's subjective fear.
7. So much may turn in the end on the somewhat subtle question of the weight to be given to elements of the evidence in an asylum claim. It seems to me that this is arguable and that there is a sufficiently realistic prospect of success to entitle Mr Nicholson to permission to appeal, which I accordingly give.

Order: Application granted