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England and Wales Court of Appeal (Civil Division) Decisions
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> DT (Afghanistan) v Secretary of State for the Home Department [2014] EWCA Civ 259 (12 March 2014)
URL: http://www.bailii.org/ew/cases/EWCA/Civ/2014/259.html
Cite as: [2014] EWCA Civ 259
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ON APPEAL FROM THE UPPER TRIBUNAL
(IMMIGRATION AND ASYLUM CHAMBER)
Upper Tribunal Judge Taylor
AA/03231/2012
Strand, London, WC2A 2LL |
||
B e f o r e :
LORD JUSTICE McFARLANE
and
MRS. JUSTICE PROUDMAN
____________________
| DT (AFGHANISTAN) |
Appellant |
|
| - and - |
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| SECRETARY of STATE for the HOME DEPARTMENT |
Respondent |
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Mr. Robert Moretto (instructed by the Treasury Solicitor) for the respondent
Hearing date : 19th February 2014
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- This is an appeal against the decision of the Upper Tribunal dismissing the appellant's appeal against the refusal of the Secretary of State to grant him asylum or humanitarian protection on the grounds that it would be safe for him to return to his country of origin.
- The appellant is a national of Afghanistan who entered this country on 5th January 2012. He claimed asylum and humanitarian protection on the grounds that his life would be at risk if he were to return to Afghanistan.
- Describing his experiences in Afghanistan, the appellant said that between 1988 and 1992 (i.e. when he was aged between about 13 and 17) he had been a member of a radical Islamic group, Hezb-i-Islami, for whom he had carried out various low-level administrative tasks. Although he had stopped working for the group in 1992, between 1992 and 1996 it tried to persuade him to return to the fold.
- In 1994 he had gone to university, but in 1996, following the publication under his name of an article critical of the Taliban, he had fled to Pakistan. However, he had been able to return to Afghanistan in 1997 and thereafter had not experienced any difficulties until 2003, when he had received a letter from Hezb-i-Islami asking him to join their fight against the Americans. He had ignored it, but shortly afterwards he had received a letter from the Taliban couched in stronger terms once again demanding that he join the fight against the Americans and threatening him with death if he did not. Some time later there had been an attack on his house in which a grenade was thrown and his young son had been killed.
- The appellant said that in May 2007 he had started working for an organisation called The Afghan Eastern Agriculture Development Company ("AEADC") based in Jalalabad. His work had involved travelling around rural areas inspecting crops. On 20th June 2008 while inspecting an orchard in Ghani Khail he had been attacked and beaten by a group of men who accused him of being a spy. A similar incident had occurred in May 2009 when he had been in Nuristan inspecting another orchard. He had been seized by three members of the Taliban on suspicion of being a spy. He had been locked up, but had managed to escape by bribing the guard.
- The appellant said that in 2011 he had started to receive further threatening letters from Hezb-i-Islami and the Taliban. Having by that stage received a total of four such letters, he had decided to give up his job and move from his home in Laghman province to Kabul. Between 1st October 2011, when he had received the last threatening letter, and 26th November 2011, when he had left Afghanistan, he had moved between various places and had spent some time living in Kabul with his family without receiving any further threats or suffering any intimidation. The appellant said that if he were to return to Kabul he would be found and killed by the Taliban or Hezb-i-Islami.
- The Secretary of State rejected the appellant's claim for asylum because she did not believe some important parts of his account and because she considered that, having given up his work for AEADC and having moved to Kabul, he would not be at risk of harm from any of the insurgent groups if he returned there.
- The judge in the First-tier Tribunal, First-tier Tribunal Judge Hindson, found the appellant to be a generally credible witness. He accepted that the appellant had been employed by AEADC, which the insurgents regarded as an organisation sponsored by the Americans. He recognised that the insurgents were active in the appellant's home area and accepted his account of the threats he said had been made against him. He also accepted the appellant's account of having been captured and having paid a bribe to secure his release. The judge accepted that prima facie the appellant would be at risk of harm from the insurgents if he were to return to Afghanistan (presumably meaning to his home area), but he found that, having severed his links with AEADC, he would be able to live safely in Kabul if he were to return to his home there. He therefore dismissed the appeal.
- The appellant applied for permission to appeal to the Upper Tribunal. His principal ground was that the judge had failed to take into account the evidence relating to the ability of the Taliban to strike at targets in Kabul, but he also relied on the fact that he had formerly been a member of Hezb-i-Islami and had refused to comply with its demands that he return to the organisation to take part in the fight against the Americans. He also said that his family had been able to live in Kabul without interference only because he had been away. First-tier Tribunal Judge McWilliam gave permission to appeal on the grounds that it was arguable that Judge Hindson had not dealt adequately with the question whether the insurgents would be able to track the appellant down in Kabul and had not given adequate reasons for coming to the conclusion that he would be safe there.
- In the Upper Tribunal the appeal was heard by Upper Tribunal Judge Taylor. She held that Judge Hindson had made an error of law, set aside his decision and proceeded to re-make it. In support of his appeal the appellant produced a fresh threatening letter from the Taliban which he said had been sent to his father and forwarded to him by his nephew. He also relied on evidence contained in a Canadian report which he said showed that the Taliban had harassed and targeted on a small scale perceived collaborators in Kabul, including police and army colonels and commanding officers in the security forces. It was his case that as a former employee of an American organisation he could be traced and would be at risk of assassination.
- Judge Taylor accepted the facts as found by Judge Hindson. Accordingly, as she said in paragraph 23 of her decision, the only question for her was whether the appellant would be safe if he returned to live in Kabul. She rejected the most recent letter as a forgery and held that there was no specific threat to the appellant's family from the Taliban. The critical question in her view was whether the Taliban would be interested in pursuing the appellant if he returned to Kabul. As to that, she noted the contents of the Canadian report, including its acceptance that the Taliban had the ability to strike at will almost anywhere, but she also noted its assessment that low-level collaborators were a low priority because the Taliban usually focused their limited resources on high profile targets ranging from serving government officials upward. She also noted that the Taliban's capacity to track targets in Kabul was limited because the police and security forces appeared to be better trained and individuals in Kabul were more anonymous.
- Judge Taylor considered the appellant was, and by implication would be viewed as, a low-level collaborator. She regarded the most recent letter produced by the appellant as a forgery, noting that the earlier letters had been sent at a time when he was still working for AEADC. He was not and never had been in a high-profile position. In her view there was no reason why the Taliban in Kabul would know of his previous employment and there was no reason why they would wish to track him down on his return. She therefore dismissed his appeal against the Secretary of State's decision.
- The appellant obtained permission to appeal to this court from Sir Stephen Sedley on the grounds that it was arguable that neither the finding that the appellant's family were currently not being threatened nor the finding that the most recent letter was a forgery justified a departure from the finding of the First-tier Tribunal, based on the earlier letters and other evidence of circumstances in Afghanistan, that there was a real risk to the appellant if he were to return. Miss Singh placed considerable emphasis on the nature of the earlier letters (which Judge Hindson had accepted as authentic) and what she said was the particular characteristic of this appellant as a person who had once been a member of Hezb-i-Islami and had refused to return to its ranks when urged to do so. She submitted that the Upper Tribunal had failed to take that aspect of the case into account at all.
- In my view the findings of the First-tier Tribunal clearly distinguish between the risks the appellant would face if he were to return to his home province and those that he would face if he were to return to Kabul. It is true that in paragraph 48 of his decision Judge Hindson accepted that prima facie the appellant would be at risk from both Hezb-i-Islami and the Taliban if he were to return to Afghanistan, but he must have had in mind a return to Laghman province, because in the next paragraph he moved on to consider the risk to the appellant if he were to return to Kabul. His conclusion that he could return to Afghanistan safely rested upon the finding that the appellant could return to live in Kabul. Judge Taylor's decision did not, therefore, involve a departure from the decision of the First-tier Tribunal; on the contrary, it was essentially to the same effect. In reaching it she expressly had regard to the evidence in the Canadian report concerning the ability and willingness of the Taliban to strike at targets in Kabul, which Judge Hindson was said to have ignored. Any suggestion that Judge Taylor failed to take into account that aspect of the evidence must therefore be rejected.
- In the event the appellant's case before us turned almost entirely on the fact that Judge Taylor had made no reference in her decision to the four threatening letters sent to the appellant and his failure to respond to them, which, Ms Singh submitted, showed that the judge had failed to take them into account. I am unable to accept that submission. It is interesting to note the development of the appeal as it made its way through the tribunal system. The letters had formed part of the evidence on which the appellant had relied before the First-tier Tribunal, but it is clear from paragraphs 37 and 47 of the decision that the appellant at that stage placed far greater emphasis on his employment by AEADC as a source of risk than on the letters.
- In his grounds of appeal to the Upper Tribunal the appellant's case changed, with greater emphasis being placed on the threatening letters and his refusal to respond to the insurgents' demands that he resume his support for their cause than on his former employment. The question therefore was not whether he faced a heightened risk of attack by insurgents, but whether he was at risk of attack for different reasons. That is reflected in the terms on which Judge McWilliam granted permission to appeal.
- The Upper Tribunal accepted that the First-tier Tribunal had indeed failed to consider the evidence relating to the Taliban's willingness and ability to strike targets in Kabul. However, the case being made by the appellant before the Upper Tribunal was essentially the same as that which had been made before the First-tier Tribunal, namely, that he was a target for the Taliban who could attack him with relative ease in Kabul. The letters had been part of the evidence before the Upper Tribunal, bolstered by the production of the additional letter which the judge found to be a forgery. Judge Taylor referred to them in paragraph 2 of her decision, when describing the background to the appeal. She also referred to them, albeit obliquely, in paragraph 21 when she described the appellant as "a former member of Hezb-i-Islami from 1988 to 1992 who subsequently refused to rejoin" and as one who had been "approached by the Taliban demanding that he join the campaign against the Americans and [had] again refused". She cannot, therefore, have been unaware of the nature of his case or of that evidence.
- Since the findings of the First-tier Tribunal had been preserved, it was not necessary for Judge Taylor to re-visit the letters in detail. There was no independent evidence tending to show that a former low-level member of an insurgent group who had refused to renew his support was likely to be at increased risk of attack. The only question she had to decide, therefore, was whether, in the light of the Canadian report and other evidence about conditions in Afghanistan, the appellant could live safely in Kabul. In reaching her decision on that point she cannot have failed to take into account all aspects of his personal circumstances, including his former contacts with the insurgents, the letters and his former employment by AEADC. She was entitled to find that the appellant was a low-level collaborator and to find that the Taliban would not be interested in devoting part of its limited resources to tracking him down in Kabul in order to assassinate him.
- For these reasons I am unable to accept that the Upper Tribunal made an error of law in reaching its decision and I would dismiss the appeal.
- I agree.
- I also agree.
Lord Justice Moore-Bick :
Lord Justice McFarlane :
Mrs Justice Proudman :