England and Wales High Court (Administrative Court) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT

		Royal Courts of Justice Strand London WC2 Friday, 20 February 2004

1. MR WOOLRIDGE: My Lord, I appear on behalf of Mr Kumar, and my friend, Mr Kellar, appears on behalf of the Secretary of State in this matter.
2. My Lord, this is a matter that falls on a narrow issue, and that narrow issue is whether or not the information that was forwarded in the application for a fresh claim under the ECHR was accompanied by information that was not previously available. I will take as the starting point, my Lord, the response, at page 51 of the bundle, and I would like to direct your attention to paragraph 4.
3. MR JUSTICE LINDSAY: This is 17 November?
4. MR WOOLRIDGE: Yes, dated 17 November, the response of the Secretary of State to the representations made. At paragraph 4:

"Consequently, a new decision will not be taken if your client's human rights claims are founded on circumstances which the IND has already rejected and/or the adjudicator at your client's appeal did not accept. Nor will a new decision be taken if your client's human rights claims are based on new issues which could have been raised earlier."

5. My Lord, the issue then becomes one of chronology. The adjudicator heard this case on 3 June 2003 and promulgated his determination on 25 June 2003. The fresh claim was made on 27 October 2003. You will find the beginning of that fresh claim at page 72 of the bundle. My Lord, the reports that accompanied that fresh claim, the first of which being the UNHCR document, were only published in July 2003.
6. I refer your attention to page 125 of the bundle. Contained within that document, at paragraph 96 of the article, the UNHCR says that:

"There are some 3,500 Sikh and Hindu families in Afghanistan, mainly living in Kabul, Ghazni, Kandahar, Helmand and Nangahar provinces. Until 1992, they had not suffered from discrimination and could exercise their religion freely in urban centres where they predominantly lived. During the civil war and the Taliban rule, many of their temples were destroyed or used as military bases. The community still suffers from the consequences of a more rigorous and less tolerant application of Islamic values by the State and the various factions in power during the last 14 years. As a result, the community still faces various forms of intimidation in public places and children cannot attend earlier existing Sikh/Hindu schools. Some of the Sikh and Hindu returning families from India have claimed that they have not been able to recover their property."

7. My Lord, the representations go on.
8. MR JUSTICE LINDSAY: That falls pretty far short of anything really significant, does it not: various forms of intimidation in public places?
9. MR WOOLRIDGE: My Lord, the representations go on. If I may take you to page 40, after the Secretary of State's response, dated 17 November 2003, on 18 November 2003 those instructing me made further representations, which begin on page 2 of the bundle. I will take you first to page 40. It is an open letter from Human Rights Watch to President Karzai. The relevant portion is on page 41 at the third paragraph, where it says:

"In Kabul, some political organisers have reported intimidation by troops working with Shura-e Nazar, the political and military faction that is led by several members of your cabinet. In addition, last week a grenade was thrown into a Sikh temple in Kabul.

A prominent leader for the Sikh community in Kabul recently received anonymous threats on the telephone, telling him not to favour a secular government when he represents the community at the constitutional Loya Jirga."

10. MR JUSTICE LINDSAY: Mr Kumar is not a Sikh, is he.
11. MR WOOLRIDGE: The outline is that the same plight is suffered by the Sikh and Hindu communities collectively, and this information could not have been in the possession of the claimant either at his appeal or even when application for leave to appeal was made to the IAT. If it is the Secretary of State's contention, as illustrated in paragraph 4 of their response on 17 November, that if fresh information is forwarded regarding the risk in Afghanistan then it is implied that then a decision will be taken with regards to the fresh claim.
12. It then must follow that if the information was not available, but only became available after fresh representations were made for a fresh claim, then it is up to the Secretary of State to honour that fresh claim with a response that gives leave to appeal.
13. MR JUSTICE LINDSAY: It has got to be material of relevance and weight, has it not?
14. MR WOOLRIDGE: My Lord if the material is outlining the risk.
15. MR JUSTICE LINDSAY: Moreover showing that the situation is worse than it was when the adjudicator considered it.
16. MR WOOLRIDGE: My Lord, what is relevant is that the information outlines a particular risk to the Sikh and Hindu community in Afghanistan. If that is what is illustrated and it was not available to the adjudicator at the time of the appeal then it is relevant and ought to be considered in the fresh claim because what it represents is not what the adjudicator says, in that he says that the situation in Afghanistan has improved for Sikhs and Hindus, but that the situation in Afghanistan is just as bad as it always was or, if not, has gotten worse. If that postdates the adjudicator's determination then it gives rise to the label of new information, which supports a fresh claim.
17. Also in those representations is the report at page 43 of the bundle under the subheading "Neither safe nor stable." It says that Afghanistan is neither safe nor stable.
18. MR JUSTICE LINDSAY: Who is responsible for this? I do not know quite what I am looking at.
19. MR WOOLRIDGE: It comes under Medecins Sans Frontieres, at the top of the page. The subparagraph "Neither safe nor stable" is at the bottom of the page, the second to last paragraph.

"Afghanistan is neither safe nor stable. There is a growing insecurity that is profoundly affecting Afghans and those trying to assist them. Armed clashes, whether between rival warlords or between Coalition forces and the remnants of the Taliban, are becoming more frequent. The UN-mandated International Security Assistance Force (ISAF) does not venture out of Kabul, and even there has come under attack."

20. So if the forces are coming under attack in Kabul, the contention that Kabul itself is safe and we can return people to Kabul when the security forces are coming under attack cannot be right, because the issue of return is safe and viable return. If the information that is published postdates the determination and particularly highlights the instability and insecurity, even in Kabul, then it must be arguable that the return of Mr Kumar to Afghanistan would neither be safe nor viable.
21. The Secretary of State ought to consider this as a fresh claim based on new information that was not available at the time of the hearing. My Lord, there being the very narrow point, if I can assist you no further, those are my submissions.
22. MR JUSTICE LINDSAY: MR JUSTICE LINDSAY: Mr Kellar.
23. MR KELLAR: My Lord, I have a case to hand up. I apologise to my learned friend. I did not realise that he was representing the claimant, so I will hand him a copy now.
24. It is only a short point on the law in relation to fresh claims. (Same handed) You will see that that is a relevant and terse summary of the law in relation to fresh claims particularly in the context of fresh claims in the human rights context, which is included at paragraphs 11 to 15 under part 3, the law. Could I just ask you to read those paragraphs to yourself. (After a pause)
25. My Lord, I hope that that sets the legal context, as it were. My Lord, in the light of that, in my submission, the first stage is to look at the way the case was put and determined originally, and that can be found at page 82 of the claimant's bundle.
26. My Lord, just some brief observations on going through that determination, in paragraph 3 on the second page, the second to last sentence, you will note that the complaint is that he is being ill treated because he is a Hindu, and Hindus are a minority group in Afghanistan.
27. At paragraph 6, bottom line, he said that he left Afghanistan on 10 March 2002, does not fear particular Muslims but Muslims in general, and it is persecution by Muslims that is being complained about. At paragraph 8 is the Secretary of State's position. He sets out various improvements in the general situation in Afghanistan.
28. At paragraph 10, the Secretary of State accepts that the humanitarian situation in Afghanistan is poor, but the Transitional Administration is trying to address this, and he is satisfied that in Kabul, to which the Appellant would be returned, the security situation is stable and there is a sufficiency of the basic requirements to sustain life.
29. So there we have the two positions as set out in the original adjudication.
30. Then in the submissions for the respondent the same point is made in the last sentence of paragraph 15, the respondent submitting that the security situation has generally improved and that the view of UNHCR is that it is safe to return failed asylum seekers to Afghanistan. So the clear issue before the adjudicator was whether the situation had improved sufficiently and it was safe to return the claimant to Afghanistan in the post-Taliban era.
31. Turning to the findings of fact and credibility, at paragraph 22, if I could ask you to read paragraphs 22 to 24 to yourself. In fact paragraphs 24 and 25 deal with the general credibility of the claimant's claim, which is rejected. Paragraphs 21 to 26 can be summarised by saying first of all that I find in relation to the objective evidence on the current and improving situation in Afghanistan that it is now safe to return the claimant there, but in any event I find the central tenets of the claimant's claim incredible on a number of counts.
32. My Lord, then having looked at the way in which the case was put, we then turn over the page to page 88 to the way in which the IAT deals with it. It is the page immediately following the adjudication.
33. MR JUSTICE LINDSAY: In fact, simply because I had marked it myself, I am looking at the version that begins at page 198.
34. MR KELLAR: Page 88 is the IAT's decision, or it should be.
35. MR WOOLRIDGE: My Lord, if it assists, I have it at page 194 in the old bundle.
36. MR JUSTICE LINDSAY: I have 198 now. Thank you.
37. MR KELLAR: My Lord, I ask you to read that to yourself. The same point is being made and the same response given. Then the next point of analysis, if I could put it that way, is to turn to the way in which the "fresh claim" is put. The appropriate place to look for that is, I think, page 72 and following, which is the claimant's solicitor's letter dated 27 October 2003.
38. My Lord, the contents of this letter are commented on in full by the Secretary of State's subsequent letter. Rather than going backwards and forwards, if I can make general observations about the letter first and then turn to the way in which the Secretary of State deals with it, my Lord, you can see that on page 73 and following, the appellant's solicitors put the "fresh claim" under a number of heads in relation to different Articles, first of all, Article 2 on page 73 and then Article 3 on page 74.
39. It is clear, although I did not take you to the specific point in the adjudicator's decision, that the human rights claims were in any event dismissed by the adjudicator, at paragraph 28 of the decision. He says:

"I find therefore that the Appellant has not established the standard of proof required that he would have a well-founded fear of persecution on account of his religious beliefs were he to be returned to Afghanistan or that there would be any breach of rights under the ECHR."

40. So the point is that Articles 2 and 3, in my submission, have already been determined. In relation to Article 2 and 3, it seems there is a range of apparent evidence in support referred to, but in my submission it is plain just looking at the evidence as it appears on the page there that it is in many cases either irrelevant, insignificant or simply too general to be of any real assistance to the claimant.
41. Just looking at a few examples, (A) "Special Rapporteur" is about the incapacity of the judiciary to deal with housing rights and land and property disputes. (B) is an example of an excessively general point. It is talking about human rights violations occurring in Afghanistan as a whole. Of course, the appellant's complaint is very specific in relation to being oppressed by Muslims.
42. Then there are examples of irrelevant points at paragraph (G), relevant to oppression of the Sikh community, which are of no apparent relevance. (I) is an article apparently about the rights of women and children, particularly young girls. It is, I think, at this stage excessive to go through each and every one of the points, but again (S) and (T), (S) is about troops shot in an Afghan school and (T) is about a grenade attack on an NGO vehicle.
43. This is really an attempt to throw in everything but the kitchen sink that is probably prejudicial about Afghanistan in reports, and to try and suggest that that somehow makes this particular claimant's case much better. In my submission, it is too general and too unspecific, and in many cases too irrelevant to make any difference.
44. Then we find Article 5. Once we have finished going through all the various articles, Article 5 is mentioned, the right to liberty and security. Again there is no specific evidence referred to in relation to that. It has already been adjudicated on because the human rights claim had been thrown out. In any event, you will have noted from the adjudicator's report that he does an analysis of the CIPU report, so he has already taken into account the background evidence.
45. Then we find Article 8. The simple point about that, my Lord, is that it was not part of the original claim. It falls within the category of something which could have been put at an earlier opportunity. A claim could have been raised, and was not, and it is too late to raise it at this stage now: the principles that you saw from the case of Ratnam, that I handed up to you.
46. Again briefly in relation to Articles 9 and 14, the very same points arise. Article 9 is again a rehash of the point about the suppression by Muslims, which was also a suppression of the right to practise religion, which was essentially again part of his original claim that has just had put a different heading on it and called a different claim. It has already been adjudicated on in relation to the background evidence.
47. My Lord, having made the general observation just going through the letter while it is before us, that brings us to the detailed reply by the Secretary of State, which is at page M in the claimant's bundle. There is some lettering which precedes the numbering.
48. As a matter of fact, there are two letters, which I think are in identical terms, one on 17 November and one on 21 November. The one I am showing you is, I think, the later letter, but there are two letters essentially in identical terms rejecting the claim for the same reason, I think I would have to say.
49. MR WOOLRIDGE: My Lord, to clarify, the letter that my friend refers to at M is the identical letter referred to dated the 17th. The letter at M is undated. I do not think it was a new letter but another copy of the same letter, because there was no response to the further representations that were made on 18 November.
50. MR KELLAR: The only reason I say that is because, in your index, L to Q is given as being 21 November.
51. MR WOOLRIDGE: No. That is the letter on the following page, at L, not the one at M.
52. MR KELLAR: It is L to Q. I do not think it is because they are the reasons relied on. They are the reasons that were sent to the claimant's solicitor, so I do not think there are any other reasons. So that is what we are analysing in this case, whatever the date of it.
53. Then my Lord, you can see from paragraph 10, having set out in the first paragraphs, paragraphs 1 to 9 the background and the relevant tests, the analysis of the various heads of "fresh claim" is at paragraphs 10 and following.
54. My Lord, I think rather than taking you through every single point, it might be convenient if you have not already had the opportunity to do so just to read from paragraph 10 to 19 because that deals, in my submission, in quite some detail with each of the heads of claim and dismisses them for legitimate reasons in accordance with the relevant tests. (After a pause)
55. My Lord, in my submission, that, as it were, stands on its own two feet. You will note, I hope, in passing that in relation to the Article 8 claim, that was not simply on the basis that it was not originally put before the adjudicator, but, if it were entertained, it would be plainly without foundation because the claimant is not complaining about being removed from immediate family, only from people he has met while within the country.
56. In any event, any interference would be legitimate and proportionate, on the usual test. That is, as it were, an alternative basis upon which I submit that the Article 8 point is dismissed. My Lord, I think that letter sets out the position as fully as it can. My Lord, unless I can assist you any further, those are my submissions.
57. MR JUSTICE LINDSAY: Thank you. Mr Woolridge.
58. MR WOOLRIDGE: My Lord, I take as the starting point the adjudicator's determination at paragraph 22 on page 201 of the bundle. The adjudicator says in the second sentence:

"I accept that there are still isolated difficulties for Sikhs and Hindus in Afghanistan but it seems to me that the weight of the objective evidence is in favour of a presumption that the situation is much improved."

59. The adjudicator was then going by the objective evidence that was available to him on 6 June. The basis of the fresh claim is evidence that was not available to the adjudicator on 6 June. That is the evidence that was published in July, in September, in October, as highlighted in the fresh claim.
60. For my friend to show how efficiently the adjudicator dealt with the information that was before him takes us no further because for the basis of the fresh claim, the acid test must be not whether or not the representations are the same but whether or not the evidence that supports those representations was available at the time of the appeal, and whether or not it was significant.
61. It is my submission that whether or not the representations are the same, if the evidence is new then there is a fresh claim and there is a basis for that fresh claim.
62. MR JUSTICE LINDSAY: It cannot be as wide as that. It cannot be "any evidence".
63. MR WOOLRIDGE: Not any evidence but evidence that is relevant to the claim itself, which in my submission is what was put forward by those instructing when they made out the basis for the fresh claim.
64. My Lord, I have brought along with me the notice of hearing in another case, the case of Jasbir Singh Madan, a case where those instructing had instructed me to appeal on behalf of Mr Madan. The IAT has sent the case of Jasbir Singh Madan down for hearing on 24 June. It was adjourned in November.
65. They have sent it down for 24 June before a full legal bench with directions that both sides be allowed to adduce expert evidence on the particular plight of Sikhs and Hindus in Afghanistan. If the IAT in its wisdom has given leave for this particular case to be argued before a full legal bench on the particular issue of whether or not there is a continued and even further aggravated risk to Sikhs and Hindus in Afghanistan, then it must follow that the instant case ought to be argued in the same fashion, because it is the same risk that is faced by Mr Kumar if he is returned to Afghanistan.
66. The objective materials put forward to the IAT is the exact same bundle, because there is fresh evidence that supports the assertions that there is a further risk of ill treatment, harm, and even possibly death on account of one being of the Sikh or Hindu religion. The fact that the adjudicator dismissed previously the human rights claims under Articles 2 and 3 takes us no further. It is the fresh evidence that supports the fresh claim that is relevant to this application.
67. My Lord, I just leave you with the point that the distinction must be raised and considered between representations and evidence, and whilst my friend is correct that if representations are the same, not supported by fresh evidence then they cannot give rise to a fresh claim. But if those recommendations are accompanied by evidence that postdates the adjudicator's decision then it is arguable that a fresh claim can be made out and ought to be considered, and, if the Secretary of State chooses to refuse the claim then it must give rise to a right of appeal.
68. If I can assist you no further, my Lord, those are my submissions.
69. MR JUSTICE LINDSAY: Thank you very much.