Scottish Court of Session Decisions

[1] The appellant, who is a citizen of Pakistan, has appealed against the decision of the Immigration Appeal Tribunal, which was notified to him on 27 July 1999, that his appeal against the determination of the special adjudicator should be dismissed. In her determination she dismissed his appeal against the decision of the respondent to direct his removal from the United Kingdom and to refuse him asylum, which was notified to the appellant by letter dated 26 March 1998.

[2] The appellant did not give evidence before the special adjudicator or the Immigration Appeal Tribunal. However, the Tribunal was invited by his legal representative to treat the answers given by him at his asylum interview in January 1998 as providing the basis of his claim.

[3] In his interview he said that in July 1989 he had joined a party which is currently known as the S.S.P., which is a radical Sunni supporting Islamicisation. He took part in a large demonstration in favour of Muslim law on 2 September 1991 in Kharian City Choke, Jeetu Road. A lot of firing took place and five people were killed. He said that about 40,000-50,000 people were at the demonstration, and that about ten buses came from Lahore. Charges of murder were brought against him and his brother. They ran away to Peshawar. After two and a half months the police took away his wife and children from their home and questioned them about his whereabouts. The police said that he had to go to a police station. He did not do so, but his youngest brother went. They then released his wife and children. The police made a case against his brother, who was taken to court. He was imprisoned for 29 years. Because his brother was imprisoned for 29 years, and because he did not attend, the police had the right to shoot him on sight. He had been detained a couple of times before 1991. These were for a week in August 1990 and four days at the beginning of 1991. The appellant said that he had become the general secretary for his party for the City of Kharian in August 1989. He sat in the office, organised demonstrations, recruited new members, discussed with the leaders what was to be done, and distributed books and magazines to the people. He stayed underground in Pakistan from the time of the demonstration until he left the country in December 1996. He travelled on his own passport which he had obtained in 1992, paying an agent to get it for him. He left the country by way of Karachi. He had no difficulty because one of the members of his party was in charge of airport security and knew that he was leaving. He flew to Holland and sought asylum there. It appeared that this application was refused. He came to the United Kingdom in January 1998 on a false Dutch passport. He applied for asylum in the United Kingdom after being apprehended as an illegal immigrant.

[4] In their decision the Tribunal stated that, after considering all the evidence, they concluded that the appellant was a member of a radical Sunni party, and that he participated in a number of activities on its behalf from 1989 to 1991. They also stated that they were prepared to accept, on the appropriate standard of proof, that these activities included attending a large demonstration in the late summer of 1991, and that as a result of this demonstration people were killed and his brother was tried and sentenced for murder. They also accepted that at that time the appellant was concerned about his own implication in this crime and that he travelled to Peshawar to escape the attention of the police.

[5] In presenting the appellant's appeal Mr. Sutherland concentrated on two grounds. The first related to the treatment of the appellant by the police if he were to be returned to Pakistan and arrested. The Tribunal stated that they agreed with the special adjudicator on this aspect of the case. She had not believed that the appellant's fear with regard to detention and ill-treatment by the police whilst awaiting trial could be satisfied even on the lower standard of proof. They had read all the documentary evidence on this matter and it was clear, as she had said, that there was evidence in some cases of ill-treatment by the police. They continued:

[6] Mr. Sutherland said that appellant's answers had implied that he had not been responsible for the murders. However, he had been picked on by the police. This was a strong indication of a real likelihood of persecution. The Tribunal had before them a description of human rights abuses by police and security forces, such as extra-judicial killings, and the use of arbitrary arrest and detention. Political opponents of the Government being harassed and arrested. Torture was practised, less commonly in prisons than in police stations. For these complaints Mr. Davidson referred to Country Assessment relating to Pakistan in 1997 by the Immigration and Nationality Directorate of the Home Office, the Pakistan Country report on Human Rights Practices for 1997 by the U.S. Department of State, a report on Human Rights in Pakistan by Amnesty International in June 1997, and the report of the Special Rapporteur to the Commission on Human Rights in the Economic and Social Council of the United Nations in 1996. The Tribunal had not given adequate and proper reasons for their conclusion. Reference was made to Singh v. Secretary of State for the Home Department 200 S.L.T. 243.

[7] In considering this ground of appeal it is important to bear in mind that the onus of proof was on the appellant to establish "a reasonable degree of likelihood" of persecution (R. v. Secretary of State for the Home Department ex parte Sivakumaran [1988] AC 958, Lord Keith of Kinkel at page 994). The information which was before the Tribunal consisted of the information which was provided by the appellant at the interview, together with the written materials to which we have already referred. As to the first, there was no indication given by the appellant of the nature of what he feared if he were returned to Pakistan. He had the opportunity to express his fear by giving evidence before the special adjudicator or the Tribunal, where he had the benefit of being legally represented. On any view there was nothing in the statements which he made at the interview to indicate that he was fearful of ill-treatment during any period before or after his trial. We note that he was not in police custody following the demonstration, and he made no complaint of having been ill-treated on the two previous occasions when he was in police custody. There was no suggestion that his brother had been ill treated. As regards the written materials which were before the Tribunal, while they demonstrate that at the material time there were human rights abuses practised in prisons and police stations in Pakistan, they do not suggest that there was a reasonable likelihood of the appellant being persecuted. They do not provide any link to persons in the circumstances of the appellant. There was nothing in his conduct in Pakistan from which it could be inferred that it was reasonably likely that he would be the target of persecution in this respect. There was insufficient evidence to show that he was in fear of persecution through ill treatment, let alone a fear which was well founded.

[8] The other ground of appeal related to the passage in which the Tribunal stated:

[9] Mr. Sutherland submitted that the Tribunal had adopted an unduly simplistic approach. They had presumed that a person who was in fear of prosecution could not also be in fear of persecution. They had accordingly misdirected themselves and so erred in law. Further, and in any event, the Tribunal ought to have concluded that the prosecution which, it was accepted, the appellant feared, gave rise in his case to a well-founded fear of being persecuted for a Convention reason. It was not enough to say that the appellant was sought in connection with a criminal charge. What was significant was that he had a responsible position in a political party. He had attended a demonstration where a number of people were killed. He said at his interview that the persons who were killed were of his own party. It was inexplicable that he was accused of killing them. This should be attributed to a political background. His statements at the interview implied that he feared that the police had made up a case against him. He did not accept responsibility for the deaths. It was important to consider the causal connection between his fear of the police and the reasons why the police were looking for him. The Tribunal had failed to apply themselves properly to the question of persecution. Mr. Davidson accepted that the appellant's answers at his interview had not made his fear of persecution as clear as it should have been. The fact that he did not give evidence should not be held against him. There could be a variety of reasons why he did not do so.

[10] We do not accept that the Tribunal proceeded on the basis that if the appellant was in fear of being prosecuted it followed necessarily that he was not in fear of persecution. It is plain, in our view, that their view that he was not in fear of persecution was based on their assessment of the evidence before them. We are also not satisfied that the Tribunal ought to have concluded that there was a well-founded fear of persecution for a Convention reason. As Mr. Thomson for the respondent pointed out, there is no question of the appellant claiming that the killing of the five people was a political act. Mr. Thomson went on to submit that, if it was claimed that the choice of the appellant as an alleged perpetrator was politically motivated, his claim would be a matter for the court before whom the appellant was tried. In that connection he pointed out that the appellant had said that a lot of people had been accused in respect of the killings. Mr. Thomson also pointed out that in the written materials before the Tribunal there was nothing to the effect that the followers of the appellant's party were subject to persecution by representatives of the State.

[11] We do not consider that this ground is well-founded. We note that at his interview the appellant stated that the persons who were killed belonged to his own party. The fact that the appellant was being sought on a charge of having murdered members of his own party might suggest that this was politically motivated. However, we note that the Tribunal did not include among their findings that they accepted that the persons who were killed were of the same party as the appellant. We infer that they were not satisfied as to the reliability of this part of the appellant's account. In any event it has to be borne in mind that no complaint was made that the appellant would not receive a fair trial in Pakistan. He would be able to found on that fact, if such was the case, in his own defence.

[12] In these circumstances we consider that the appellant has not established error on the part of the Tribunal. His appeal is accordingly refused.