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
		21st November 2005

1. MR JUSTICE COLLINS: The claimant in this case is a young man from Afghanistan; he arrived in this country seeking asylum in April 2002. His application was refused but in accordance with the Policy then in being, he was granted exceptional leave to remain until 31st December 2003; that was because he was under 18 and it was the practice (I think it still is the practice) of the Secretary of State not to make substantive decisions in relation to those who are under 18, but to allow them to remain here until they become 18.
2. Following his 18th birthday, a decision was made on 14th May 2004 to refuse to grant further leave and to refuse to vary the leave. He appealed against that decision, and the appeal was heard by an adjudicator in August 2004. Put briefly, his claim was that he was Harzara and a Shiite Muslim. His father had been a Brigadier in the Ministry of the Interior dealing with passports under the Communist regime. Once the Mujahideen took over, he kept his post because of his experience but when the Taliban gained power, he left the Ministry. However, he was pressurised by the Taliban to return and was obliged to work at a low salary.
3. There was discrimination against Harzaras and he suffered, to an extent, from that. When the Taliban were overthrown in November 2001, the claimant's father was arrested and detained for a period of some months but whilst he was detained, he was killed and the claimant said he was threatened with death if he was located. Because of those threats, he decided to leave Afghanistan with the assistance of his mother who paid an agent some $12,000. He was afraid that he would be killed were he to return.
4. The adjudicator did not believe him. She gives reasons which are entirely adequate for reaching the conclusion that he was telling a pack of lies, that his father had not been employed as he said, or killed in the way that he said and that there was no reason why he should be at risk were he to be returned to Afghanistan. She went on to say that, despite those findings, she had considered the background information and the CIPU report, they indicated that there was no risk to Harzaras due to their ethnicity if they were returned to Kabul and, in the circumstances, there was no reason why he should be at risk were he to be so returned.
5. Following the rejection of his appeal, the claimant, through advisers, put forward claims for the matter to be reconsidered. The one which is the issue in this claim was based upon a newspaper report: the report is in a publication called Wahdat-e Meli. That report is dated December 2004, after the hearing before the adjudicator. The report states in translation as follows, so far as material:

"Due to a great deal of complaints by our noble compatriots and the esteemed residents of the city of Kabul, Colonel Hussain Ali, who was working as an employee of the Ministry of Interior during the government of Dr Najibullah, the government of Mr Rabbani, and the government of Taliban. During his service for the governments at the time, he did his best to suppress and destroy the innocent people of the area wrecking the lives of our noble and innocent compatriots. His son, Abrahim Rahimi, is also assisting him by all means in the suppression and destruction of our innocent compatriots. So the Colonel was arrested and prosecuted for his actions. Our dear and noble compatriots are being informed that if they are aware of the whereabouts of his son, Abrahim and other members of his family, they have to inform the nearest police authorities so that appropriate measures could be taken for their arrest and Abrahim could also be prosecuted for his actions."

It has to be mentioned that the photographs of the father and son are published at the top of this notice.

6. This report was put by those representing the claimant, to an expert, Dr Antonio Giustozzi. He saw the original of the newspaper and expressed the opinion that it could well be genuine. He indicated that the newspaper was the organ of a party whose English name is Unity of the Islamic people of Afghanistan, led by a gentleman called Mohammed Mohaqqeq. It is a very extreme party in the sense that it is adamantly opposed to everything that the Taliban had done and therefore, according to the expert, was more likely to keep a close look on any development concerning collaborationist Harzaras, against whom Mohaqqeq's faction fought bitterly until 2001.
7. The publication of an article relating to a relatively old case would give rise to some questions, Dr Guistozzi indicates, but there was a huge judicial backlog in Afghanistan and therefore it was not, by any means, impossible that this matter should have been raised at a later stage.
8. The report and the article were put with other material, which there is no need for me to go into, before the Secretary of State and on 26th July he indicated that he was not prepared to accept that it amounted to a fresh claim and so there was no further right of appeal and the claimant would be, in due course, removed. The reasons why he did not accept it as amounting to a fresh claim were given in a letter; he relied upon the fact that all he had seen was a copy, and not the original. That point has been addressed and that is not of itself, it is accepted, a good ground for rejecting it.
9. It is accepted and indeed it should have been accepted because Dr Guistozzi had said in his report that that was the case, that he had seen the original. There was also comment made as to whether Dr Guistozzi's expertise enabled him to establish the authenticity of the document: of course he did not establish the authenticity of the document, nor did he purport to do so. All he said was that it was in his view perfectly reasonable to assume that it may well be a genuine document, and he rejected or rather he cast doubt upon the suggestions that were raised to say that it was not.
10. The refusal went on to refer to the adjudicator's findings and the general adverse credibility, and went on:

"... the authenticity of any documents submitted will therefore be questioned, given the adjudicator's findings on your client's credibility. However, it is noted that the news article calls for your client to be handed to the security authorities so that he can be brought before the law... considered that even if this document were found to be genuine, your client would face prosecution in Afghanistan, as opposed to persecution. It is not therefore accepted that you had put forward any credible evidence to suggest that your client's situation is an exceptional one which could lead to a reasonable degree of likelihood of persecution or to a real risk of treatment contrary to Article 3 of the European Convention on Human rights."

11. The distinction between prosecution and persecution in Afghanistan is a somewhat indistinct one and there is clear material based upon the latest Home Office Report that suggests that if, indeed, he were to be targeted by such as the party concerned, he might well find himself at risk of persecution, ill-treatment which crosses the threshold of Article 3 and death, whether or not the call was merely to hand him over to the authorities so that he could be brought before the law. The whole point of Afghanistan is that in certain parts and in certain contexts there is not really any authority which represents the law.
12. It seems to me that if this were regarded as a genuine article, that is to say the newspaper report, it would be difficult to say that there was not material which could be relied on to show that there was a reasonable prospect that would establish he was at risk of ill-treatment which crossed the relevant threshold. The test, though, is to be found in Rule 353 of the OAC 395, which reads:

"When a human rights or asylum claim has been refused in 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 which has been previously been considered. The submissions will only be significantly different if the content;

1) Had not already been considered;

2) Taken together with the previously considered material created a realistic prospect of success, notwithstanding its rejection."

The realistic prospect of success test is a low one. It really amounts to little more than there is a reasonable chance that the claim might succeed.

13. The question that is raised here is the extent to which the Secretary of State is entitled to decide for himself the issue of fact; in this case, the genuineness of the newspaper article. It is clear that there is significant material upon which the Secretary of State can rely on to suggest it is not genuine. It came into existence fortuitously, as far as the claimant is concerned, after he had lost his appeals. It purported to support the claim that he had made.
14. There was no particularly good reason why it should have come into existence when it did, as opposed to earlier, because his father had been killed and presumably, therefore, if this was genuine, the individuals concerned were looking out for him well over two years earlier. Furthermore, it is difficult to follow why the authors or rather why those responsible for this newspaper should not have been able to be contacted to confirm that it was genuine, but Dr Guistozzi has said that he made efforts to contact them but was unsuccessful; he got no reply. Nothing has been done since to obtain or to make any further enquiries, as far as one can tell. Dr Guistozzi made his enquiries back in June; we are now in November.
15. Having said that, it is accepted that it is not intrinsically incredible. It is possible that it could be genuine. The adverse credibility findings were indeed based upon material which was appropriate and which it was open to the adjudicator to hold against the claimant. On the other hand, if this newspaper article is genuine, it throws into great doubt the correctness of those adverse credibility findings. Hence it is crucial to whether there is, indeed, a prospect of success in any claim.
16. There is some slight doubt as to the correct test to be applied in circumstances where the Secretary of State has to decide, or rather the decision maker on behalf of the Secretary of State has to decide if a fresh claim is made. In the latest edition of the book which is relied on in this field, Macdonald's Immigration Law and Practice, the authors say this in paragraph 12.170(i):

"It is for the Secretary of State to decide if a fresh claim has been made, subject to Wednesbury Review. Although some authorities suggest that where evidence of a relevant and substantial change in circumstances or new evidence is advanced which could not reasonably have been advanced earlier, the Secretary of State is obliged to entertain the new claim whatever the reasons for rejecting the previous one, unless the new evidence is not credible or is not capable of producing a different outcome."

That is based upon the decision of Sedley J in R v Secretary of State ex-parte Habibi [1997] 391, coupled with the approval of that decision by the Court of Appeal in Secretary of State for the Home Department v Beybeyi reported in the same volume of the Immigration Appeal Reports at page 491.

17. Mr Patel submits that that test which was under the old Rule 346 has been, to an extent, superseded by 353, in as much as 353 suggests a somewhat different approach. What 353 says is that the issue is whether the material creates a realistic prospect of success and that being so, it must be for the Secretary of State properly to decide whether the evidence is, in his view, evidence which should be believed. It is only if his view is an irrational view that a fresh claim can be entertained.
18. It seems to me that that is to put it too high against an applicant. The test set out in Habibi and supported by Beybeyi certainly has not been in terms overruled, as far as I can tell from the authorities and from the comments that have been made. I think it would be difficult to justify an approach which enabled the Secretary of State to find a matter of fact against a new claim which otherwise would succeed because the material had not already been considered; and there was good reason, as it happens in this case, for that, because it did not exist until after the relevant decision of the adjudicator.
19. Of course, if it is intrinsically incredible, or if when one looks at the whole of the case, it is possible to say that no person could reasonably believe this evidence, it should be rejected. If it is, on the face of it, credible and if, despite the feeling that it might be disbelieved, it is not possible to say that it could not reasonably be believed, then, as it seems to me, the decision ought to be based upon that state of affairs. The Secretary of State would be wrong to say 'I don't believe it and therefore I am not going to regard this as a fresh claim'.
20. In those circumstances, as it seems to me, this claim is entitled to succeed. That means, of course, no more than that the claimant will be given a fresh right of appeal, if he wishes to exercise it, and it may well be that that appeal will not succeed. But further enquiries can no doubt then be made on both sides into the authenticity of this newspaper report. The Secretary of State after all is just as capable, one would have thought, of finding out from the publishers of this document whether it is indeed genuine, and equally no doubt the claimant, for his part, will be able to make further enquiries.
21. Of course there is also the question that if his family were all being targeted, as the report suggests, what has happened to his mother, what has happened to his uncle and so on? There is no suggestion, as far as I can see, that they have they have been hounded in Afghanistan. Again, those are matters which certainly cast doubt upon the authenticity of this document. As I say, I do not feel it is possible to say within the test I think is the appropriate one that it ought to have been rejected in the way that it was.
22. In those circumstances and for those reasons, this claim succeeds.
23. What about costs? You have an obligation to ask for them, do you not?
24. MISS JEGARAJAH: Yes.
25. MR JUSTICE COLLINS: And I think you have an obligation to pay them, do you not Mr Patel?
26. MR PATEL: In the circumstances, yes, my Lord.
27. MR JUSTICE COLLINS: I do not think you can resist that.
28. MR PATEL: No.
29. MISS JEGARAJAH: Much obliged.
30. MR JUSTICE COLLINS: To be subjected to public assessment, if not agreed.