Scottish Court of Session Decisions

Khan v. Secretary State Home Department [2003] ScotCS 81 (21 March 2003)

OUTER HOUSE, COURT OF SESSION
P407/02	OPINION OF LORD KINGARTH in Petition of WARIS KHAN Petitioner; against THE SECRETARY OF STATE FOR THE HOME DEPARTMENT Respondent:   ________________

 

 

Petitioner: Party

Respondent: Lindsay; H. Macdiarmid, Solicitor to the Advocate General

21 March 2003

1. The petitioner is a citizen of Afghanistan. He entered the United Kingdom on or about 9 January 2001. He applied for asylum. By decision dated 29 January 2001 the respondent refused the petitioner's application. The petitioner appealed against that decision. On or about 17 December 2001 a special adjudicator, following a hearing in Glasgow, refused the petitioner's appeal. It is common ground that the petitioner has no further rights of appeal. In this petition he seeks reduction of the special adjudicator's determination.
2. The central question before the special adjudicator (and the respondent before him) was whether the petitioner was a refugee within the meaning of Article 1(1)(A) of the United Nations Convention relating to the Status of Refugees 1951 (as amended); in particular whether the petitioner owing to "well founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable, or owing to such fear, is unwilling to avail himself of the protection of that country". A further question before the adjudicator was whether his removal to Afghanistan would be in breach of the petitioner's rights under Articles 2 and 3 of the 1950 Convention for the Protection of Human Rights and Fundamental Freedoms ("The Human Rights Convention").
3. The essential basis of the petitioner's claim before the special adjudicator was that (a) prior to his entry to the United Kingdom, certain things had happened to him which led him to being fearful of his continued safety if he remained in Afghanistan and (b) that in the light of that, and the continuing political situation in that country, he had a well founded fear of the relevant kind. In particular the main thrust of the petitioner's claim was that he had lived all his life in the area of the village of Bander. He had two brothers. They were taken away by members of the then ruling Taleban regime around eight years ago and the petitioner had not seen them since. The petitioner worked on his family's farm as a labourer. Following the disappearance of his brothers, the petitioner and his mother moved to Jalalabad, where they stayed with the petitioner's uncle and worked in his shop. On or about December 2000, the petitioner was travelling on a bus which was stopped by Taleban soldiers. They asked the petitioner and others to get off the bus because they did not have beards. The soldiers asked if he had prayed that day, but refused to believe the petitioner when he said that he had done so. They made him pray again and thereafter beat him with sticks. The petitioner's back was injured and he required hospital treatment. About ten days later the petitioner was again on a bus which was stopped by Taleban soldiers, who demanded to know where he lived. The next day soldiers came to his uncle's shop and said that he was to join them in fighting against Masood. The petitioner objected to the killing of his own people for religious reasons. He knew that if he refused to join the Taleban forces he would be killed. The soldiers stated that they would return for him the following day. The petitioner became afraid for his own safety. He fled from his uncle's house and, with the assistance of agents, from Afghanistan.
4. In refusing the petitioner's appeal the special adjudicator determined (a) that for a number of reasons he did not believe the petitioner's account of what had happened to him prior to his entry to the United Kingdom, (b) that in any event, having regard to the current situation in Afghanistan, it could not be said that he had any well founded fear of persecution of the relevant kind and (c) that for similar reasons it could not be said that his removal to Afghanistan would be in breach of Articles 2 and 3 of the Human Rights Convention. The essential parts of his decision were contained within paragraphs 19 to 31, paragraph 33 and in paragraphs 35 and 36 of his Determination. These paragraphs were in the following terms:

"19. The appellant was interviewed on 10 January, 2001 having arrived in the United Kingdom on 9 January, 2001. His interview was recorded in writing.

20. At interview the Appellant was asked if he was fit and well and happy to be interviewed in Pashtu. He confirmed that he was.

21. The appellant declared at the conclusion of the interview that he had been informed of the purpose of the interview, and that he understood the questions put. He confirmed that he was aware that this was his opportunity to explain why he wished to claim asylum.

22. The Appellant now gives a completely different explanation of the interview and claims that his date of birth was recorded wrongly since he now had a birth certificate showing his date of birth to be 20 January 1974 and not 1 January 1965 which he allegedly told the interviewing officer.

23. The Appellant produced in evidence a birth certificate in English. That birth certificate indicated his date of birth to be 20 January 1974. The birth certificate was only partially filled out. Various parts of the birth certificate which ought to have been filled out have not been filled out. The birth certificate was not signed. A number of stamps were affixed to the birth certificate which were difficult to decipher. I was not prepared to place any weight on the birth certificate.

24. The Appellant produced a Taskerat. He claimed that this showed his Afghani nationality. The translation of the Taskerat did not give the Appellant's date of birth and age but had the words "seventeen years old as in 1991". It indicated that he was married. The Appellant in evidence indicated that he was not married. The Respondent called into question the authenticity of this document. It was stapled together. It was difficult to assess its probative value. It missed out various pieces of information with regard to the Appellant which on the face of it, it should have contained. Where changes of address should have been recorded no change was recorded.

25. The Appellant in his asylum interview indicated that he had problems with the Taleban. He claimed that he was involved in one incident only. That incident happened when he was removed from a bus and told to pray again. When the Appellant claimed to have prayed only half an hour before he was taken from the bus and struck by the one of the Taleban soldiers. They told him that he did not even have a beard. The Appellant claimed to be struck by a stick on his back.

26. At question 13 of his interview the Appellant was asked if he had been harassed on any other occasion and indicated that he had not. However, in his evidence he claimed another, more serious incident where the Taleban told him that he would require to fight for them and that they would come and get him the next day. It was at that point, according to the Appellant that he decided that he would leave. He claims he would be executed if he were caught after refusing to fight for the Taleban.

27. The Appellant in his asylum interview claimed that he had been living in Pakistan for most of his life. He claimed that he had only returned to Afghanistan for fifteen days. At question 40 of his interview he confirmed that he had spent most of his life in Pakistan.

28. According to the Appellant at interview one of his main problems was the fact that the house in which he was living in Pakistan belonged to other persons and they wanted the house back. In his evidence before me the Appellant denied that. The Appellant claimed in his evidence that he had been feeling tired and unwell during the course of the interview. He claimed that his interview had been misinterpreted. He denied that he had ever said that he had lived in Pakistan. He claimed that he told the interpreter that he had lived in Afghanistan. Something had gone wrong. The Appellant could not explain why he had not mentioned the second incident during the course of his interview. He stated that he answered what he was asked. He also indicated in his evidence to me that he was not sure that he was being interviewed at the time. He was not sure what to say and what not to say.

29. The Appellant claimed that his interview was not read back to him. He never asked what he was signing. He just kept signing pages. He claimed not to understand what was going on at the time. He claimed to have complained to the interpreter during the course of the interview.

30. I did not believe the Appellant in any of the core elements of his claim. I could see nothing in his original interview to indicate that he was confused, or did not understand what was going on. If it had been a matter of simple misinterpretation that might be understandable in the circumstances. However, in this case the Appellant's version of events has changed dramatically from his interview to his subsequent statement and his evidence before me. I consider that the Appellant was lying in what he told me. I did not accept what he said. In particular, I did not accept that he has spent most of his life in Afghanistan. He was perfectly clear that he had spent most of his life in Pakistan and that he had only visited Afghanistan for a period of about fifteen days. He gave an explanation as to why he had to leave because the house which he was living in was being repossessed. His story regarding the Taleban I did not accept. Although such incidents may well occur, or have occurred in the past in Afghanistan, the Appellant's other evidence was to unbelievable that I was not prepared to accept his version of events with regard to what happened when he was stopped by the Taleban. In particular, the fact that he embellished his story by inventing a further incident made me sceptical regarding the first and I was not prepared to accept that it had taken place. I consider that the Appellant invented the second occasion to bolster his credibility. I was not prepared to accept either version.

31. The documents which the Appellant used to support his claim I was not prepared to accept either for the reasons which I have indicated above.

...

33. The Appellant claims that he fears persecution by the state. On the facts as described above, I find that the Appellant has not established that he has any subjectively genuine, or objectively well founded, fear of persecution by the state or its agents. I did not believe the Appellant in any of the core elements of his claim. I considered that the story which he propounded was a fabrication. His later version of events was so diametrically opposed to what he said at his interview that I did not believe him. In my opinion he had no credibility whatsoever. I took the view that the Appellant had lived in Pakistan for a substantial number of years although he may originally have come from Afghanistan. In my view he had no well founded fear of persecution whatsoever. I could see no reason why he could not return to where he had lived for the past thirty years. Indeed, as matters currently stand in Afghanistan I do not consider that the Appellant has any well founded fear of persecution since those whom he allegedly fears are now no longer in power.

...

35. The Appellant's Representative has submitted that the Appellant's rights under Articles 2 and 3 of the 1950 Convention are engaged. I have examined the arguments put forward in support of this submission but, in the light of the facts as established, have found no substance in them. Miss McGill submitted that removal to Afghanistan at the current time would breach his human rights. In my view the Appellant doesn't have any well founded fear of persecution but even if he did have those whom he feared have now been removed and he would not have any fear of death, torture or inhuman or degrading treatment or punishment.

36. I find therefore that if the Appellant is now returned to his country of nationality, there is not a real risk that he will suffer a breach of his protected rights under Article 2 or 3."

5. Before me the petitioner, who had been refused legal aid, appeared on his own behalf. He had the assistance of an interpreter Mohammed Naveen Asif, whose services had, as I understood it, been arranged by the court. The appellant confirmed that having had the chance to speak with Mr Asif he was entirely satisfied with him as interpreter. He further explained that with help he had been able fully to understand what the special adjudicator had said in his determination. He made it clear that he wished to advance the arguments set out in his Petition. He submitted, in particular, that when he arrived in the United Kingdom he immediately applied for asylum. He was interviewed by immigration authorities. At the time of the interview, he was tired and feeling unwell. The interview was conducted in Pushtu through an interpreter. The interpreter spoke Pushtu with a Pakistan dialect. The petitioner did not fully understand the interpreter. There was confusion between the petitioner and the interpreter and a number of his answers were incorrectly translated. The petitioner tried to raise this problem but was ignored. The interview was not read back to the petitioner and he was told to sign the interview sheets without understanding what he was signing or why. The adjudicator had dismissed the petitioner's claims about the problems with the interview, stating that he "could see nothing in his original interview to indicate that he was confused, or did not understand what was going on". To reach this conclusion in light of the petitioner's allegation about the interview was irrational and unreasonable. The adjudicator required to consider the petitioner's appeal with utmost scrutiny. By dismissing the criticisms of the interview, the adjudicator had failed to consider the petitioner's application with the utmost scrutiny. He had erred in law. He had failed to give adequate and cogent reasoning for his conclusions. He was not reasonably entitled in effect to discount the evidence presented in the birth certificate and the Taskerat. The petitioner had asked for the first of these documents to be in English, and it was stamped and apparently signed at the end. In the latter document it was not usual to give the date of birth, and insofar as it indicated, wrongly, that he was married, the petitioner had been married but his wife had died. In all the circumstances the adjudicator had been wrong to reach the view that the petitioner's account fell to be disbelieved. He had lived all his life in Afghanistan save for four months when he lived in Pakistan when he was four years old. Further the special adjudicator was not reasonably entitled to find that there was no basis for the petitioner fearing for his safety if he was returned. Afghanistan was still a country dangerous to many people. There were still many Taleban in that country. It could not be said that they were not a threat.
6. Counsel for the respondent submitted that the petition should be refused. Credibility was a matter of fact for the special adjudicator. In a petition such as this for judicial review findings on credibility could only be challenged if they were shown to be Wednesbury unreasonable. It was for the petitioner to demonstrate that no reasonable adjudicator could have come to the findings he did. It was not for the court to assess the matter of new. It was accepted that insofar as the petitioner had given an explanation for any discrepancies between the written record of the interview and his evidence before the adjudicator, the adjudicator was bound to consider that explanation. In particular in a matter such as this it was for the adjudicator to be fully alert to potential cultural and linguistic difficulties. He was not bound, however, to accept any such explanation but if minded not to accept it (as he was entitled to do if there was a rational basis for that) he was bound to give adequate reasons for so doing. In this case he had complied with all duties incumbent upon him. He had plainly understood and considered the explanation offered by the petitioner, as paragraphs 28 and 29 showed. Having regard to the full terms of the interview it could not be said that he was not reasonably entitled to reject the explanation, or that his rejection was not reasonably explained. He was reasonably entitled to reach the view that there was "nothing in his original interview to indicate that he was confused, or did not understand what was going on". In particular he was entitled to have regard to the fact that on the face of the record of the interview the appellant had been asked if he was fit and well and happy to be interviewed and had confirmed that he was; that he had declared at the conclusion of the interview that he had been informed of the purpose of the interview, and that he understood the questions put. He was further entitled to recognise that in general throughout the interview the answers appeared to meet the questions, and to have consistency one with the other. More importantly, perhaps, the adjudicator was reasonably entitled to take the view (as he did at paragraph 30) that there were significant differences, between what had been recorded in the interview record and the petitioner's evidence before him, which could not readily be explained by any misunderstanding. Both at interview, and apparently in evidence, before the special adjudicator, the petitioner had given a detailed account of what had happened to him on the first occasion when he had been taken off the bus by the Taleban. The detail of that account at the interview, and its apparent consistency with the later evidence, was not suggestive of any misunderstanding at the interview. Despite apparently being asked in the interview an open question as to whether he had personally been harassed by the Taleban (question number 3), the later and perhaps more serious claimed harassment by the Taleban was not mentioned. Further, by two specific questions (questions 12 and 13) he had been asked whether there were any other incidents of harassment by the Taleban. Not only did he say that there were not, but he appeared to explain why that did not matter. In addition it was clear from a number of answers that he gave an apparently consistent, and in certain respects anecdotal, account of having lived much, if not most, of his life in Pakistan. Reference in particular was made to answers 1, 2, 17, 27 and 40 of the record. The incident with the Taleban happened, it was said, while he was travelling from Pakistan. This was quite different from the claim that the petitioner had only lived in Pakistan for four months when he was four years old and could not in the circumstances reasonably be explained by any misunderstanding. Further it could not be said that the special adjudicator - specially appointed to hear asylum appeals and with the benefit of his own training experience - was not reasonably entitled to reach the views he did in relation to the documents produced as a birth certificate and Taskerat. The information before him did not include a claim that the petitioner was a widower. Overall, the special adjudicator had given clear reasons for the decision he reached. It could not be said no reasonable adjudicator could have reached that decision on the material before him. In any event, it could not be said that the adjudicator was not reasonably entitled to reach the view that, in circumstances where the Taleban were no longer in power, the appellant had no well founded fear of persecution or that in these circumstances, removal to Afghanistan would not be in breach of his human rights.
7. Giving the matter the most careful consideration I can, it seems to me to be clear that the respondent's submissions are to be preferred. It is not for me to decide matters as of new or indeed as if I was sitting as an appeal court. It was not at all times obvious to me that the petitioner fully appreciated this. That is understandable. Nevertheless, in this petition for judicial review, he requires to persuade me that the special adjudicator went wrong as a matter of law. For the reasons advanced on behalf of the respondent - which I have set out at some length above - I am not satisfied that it can be said that the special adjudicator did not take proper account of the petitioner's submissions as to the problems he said he had had at his interview, or that on the information before him as a whole (including those submissions) he could be said to have reached a decision as to the petitioner's credibility which no reasonable adjudicator could have reached or that his reasons for so doing were unclear. In any event, I am not satisfied that it can be said that the adjudicator was not reasonably entitled further to conclude that, since those said to be feared by the appellant - the Taleban - were no longer in power in Afghanistan, the petitioner could not be said to have a well founded fear of persecution of the relevant type or that his removal to that country would not be in breach of his human rights. In these circumstances the petition falls, as a matter of law, to be dismissed.