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Gafar, Re Application for Judicial Review [2005] ScotCS CSOH_83 (24 June 2005)

OUTER HOUSE, COURT OF SESSION

[2005] CSOH 83

P1367/04

OPINION OF LORD BRODIE

in the Petition of

ASIFA GAFAR

Petitioner:

against

Judicial Review of a Decision by the Immigration Appeals Tribunal to Refuse Leave to Appeal

________________

Petitioner: Ross; Drummond Miller, W.S.

Respondent: Lindsay; Office of the Solicitor to the Advocate General

24 June 2005

Introduction
[1] The petitioner is an Afghan national. She was born on 1 January 1962. She has four children. She and her family are Shia Muslims. The petitioner lived in Kandahar, Afghanistan, until March 2001 when she fled the country, together with her three younger children. On 29 March 2003 she arrived in the United Kingdom. She immediately claimed asylum. The claim was refused on 21 April 2003. The petitioner appealed the decision that she was not entitled to asylum, relying on the provisions of both section 65 and section 69 of the Immigration and Asylum Act 1999. The appeal was heard before an adjudicator at Glasgow on 19 May 2003. The Adjudicator's determination was dated 28 May 2003 and promulgated on 4 June 2003. The Adjudicator refused the appeal, although he recommended the petitioner to the Secretary of State as a candidate for humanitarian protection and discretionary leave to remain in the United Kingdom. The petitioner sought permission to appeal the Adjudicator's Determination to the Immigration Appeal Tribunal. Permission was refused by the Tribunal on 24 July 2003.

[2] The petitioner's application for judicial review of the Determination of the Immigration Appeal Tribunal came before me for a first hearing on 17 June 2005. The petitioner was represented by Miss Ross. The respondent to the petition, the Secretary of State for the Home Department, was represented by Mr Lindsay.

[3] In her petition the petitioner seeks reduction of the Determination of the Immigration Appeal Tribunal of 24 July 2003. However, Mr Lindsay suggested and Miss Ross agreed that, because of the effect of the Asylum and Immigration (Treatment of Claimants etc.) Act 2004 which institutes a new Asylum and Immigration Tribunal, it would be appropriate, were I to find that the Determination of 24 July 2003 was flawed and therefore unlawful, as the petitioner contended it was, it would be appropriate that I grant decree of reduction of both the Determination of the Immigration Appeal Tribunal and the Determination of the Adjudicator. That would clear the way for the petitioner to present a fresh appeal to the new unitary body.

[4] Miss Ross advised that the petitioner had recently made an application for humanitarian protection or discretionary leave to remain but she explained that that application was an entirely separate matter from anything that arose in the present petition.

Submissions of parties

Submissions for the petitioner
[5] It was Miss Ross's submission that the Determination by the Adjudicator was flawed in three respects. First, he had failed to have regard to all the documents before him. Specifically, he had given inadequate consideration to the petitioner's status as a single female head of household. He had relied too heavily on the Country Information Policy Unit ("CIPU") report of October 2002. He had relied on some parts of that report while apparently excluding consideration of others. Secondly, the Adjudicator had misdirected himself as to the appropriate threshold at which treatment should be considered to contravene Article 3 of the European Convention on Human Rights. Thirdly, the Adjudicator had erred in failing to give adequate reasons for his decision. Specifically, he had failed to explain his findings in relation to the circumstances of the death of the petitioner's brother-in-law. He had made no clear finding as to credibility. That was unreasonable. All these matters were adequately raised in the petitioner's Grounds of Appeal which had been before the Immigration Appeal Tribunal but, esto that was not so, they were obvious points with good prospects of success and should have been recognised as such by the Tribunal. Miss Ross accepted that it might be suggested that the importance of the petitioner's status as a single female head of household had not been clearly focused in the Grounds of Appeal. It was nevertheless her submission that this should have been obviously apparent to the Tribunal.

[6] As far as the Determination of the Immigration Appeal Tribunal was concerned, it was Miss Ross's submission that its reasons were inadequate; it had not properly considered the grounds of appeal which were before it; and it had acted unreasonably and in error of law.

[7] Having stated the propositions that she intended to advance, Miss Ross turned to the factual circumstances of the case which she submitted were of particular importance. The petitioner was a national of Afghanistan. She was a woman. She was 43 years of age. She had four children. She had lived in Kandahar, in the south of Afghanistan. She was a member of the minority Shia Muslim community. Her husband had been arrested by the Taliban in late 1998 or early 1999. At that time the Taliban were in power in Afghanistan. In February 2001 members of the Taliban returned to the petitioner's home. They arrested the petitioner's eldest son and took him away. Following the kidnapping of her son, the petitioner was persuaded by her husband's brother that it was not safe for her to stay. She therefore took steps to leave Afghanistan and come to the United Kingdom. As was notorious and as appeared from the CIPU report of October 2002, the history of Afghanistan between 1992 and 2001 has been tragic. In October 2001, the United States of America launched military action in Afghanistan and as a result the Taliban Government was overthrown. Late in 2001 there was a short period of relative optimism, particularly in relation to the status of women. This early optimism has proved not to have been well-founded, as is apparent from the CIPU reports issued in October 2003, April 2004, October 2004 and April 2005. They demonstrate a worsening picture of the position of women in Afghan society. It was apparent that the Taliban has not been effectively replaced. It remains influential. There is very significant lawlessness. Miss Ross emphasised that in referring to the more recent CIPU reports she was not making an argument based on the availability of new evidence. She accepted that the Adjudicator could only proceed on the material then before him but she nevertheless wished to put the CIPU report of October 2002 into its context. With the benefit of hindsight it could be seen to reflect a high point of optimism in relation to someone in the position of the petitioner: a woman and a presumed widow (she not having seen her husband since his arrest). The petitioner's particular status was important. She was at risk of ill-treatment from non-state actors in circumstances where adequate state protection was not available in her home country. Accordingly, she fell to be regarded as at real risk of contravention of her rights under Article 3 of the European Convention: Kudla v Poland (2002) 35 EHRR 138 at 221; A v Secretary of State for the Home Department [2003] EWCA Civ 175; R v Secretary of State for the Home Department ex parte Bagdanavicius [2005] UKHL 38; and Cicek v Turkey, case 25704/94, European Court of Human Rights, 27 February 2005, unreported. Miss Ross accepted that much depended on the facts of the individual case. She also accepted that the facts were primarily a matter for the Adjudicator. However, it was her submission that the Adjudicator had failed to have regard to the petitioner's status. He had misdirected himself.

[8] Miss Ross turned to the terms of the Adjudicator's Determination. In paragraph 38 he stated that the Taliban no longer represented a threat. Why therefore mention it? In paragraphs 41 and 42 the Adjudicator made reference to the situation in Kabul, whereas the petitioner lived in Kandahar. If the Adjudicator had in mind the possibility of internal flight he was obliged to say so in terms. What appeared in paragraph 43: that a break down in law and order as in parts of Afghanistan and the poor humanitarian situation do not either together, or individually, give rise to a well-founded fear of persecution for Convention reasons was less a reason than a statement of fact. The reference to Afghanistan hardly took matters further. The bare reference to claims for asylum based on the breakdown in law and order and the poor humanitarian situation falling to be refused by the Home Office was difficult to understand. The statement, in paragraph 45, that the threshold in respect of Article 3 was a high one had to be read in the context of what the Adjudicator had stated in paragraphs 18 and 22 but it was not clear whether the Adjudicator had disbelieved the petitioner in relation to what she had said about the risk to herself and her family. The Adjudicator did not say in what respect the relevant threshold had not been crossed. A further aspect of what Miss Ross described as a muddle was what appeared in paragraph 46. There, the Adjudicator acknowledged that the petitioner was a person in a particularly vulnerable position as the female head of a household with three children. Other than in this paragraph, there was no suggestion in the Determination that the Adjudicator had looked at the petitioner's status as a female in Afghan society. It may have been that the Adjudicator had had Article 3 in mind when stating what appeared in paragraph 46 but it was by no means clear. The reader of his Determination should not be left in doubt as to whether the Adjudicator had considered the petitioner's status when determining the Article 3 risk.

[9] Miss Ross submitted that whereas the Adjudicator had relied exclusively on the CIPU report for his conclusion that the Taliban no longer presented risk, he had relied on that report selectively. A number of paragraphs in the report were much less optimistic in the picture that they painted. Miss Ross referred to paragraphs 4.58, 5.22 to 5.23, 5.30, 5.33 and 6.78 to 6.79 as offering a contrast. Miss Ross explained that she drew attention to these paragraphs because they pointed towards a failure by the Adjudicator which was consistent with a failure properly to analyse everything that had been put before him by the petitioner. When looking at the evidence, he had had regard to some things but not to others. Miss Ross reminded me that in referring to the October 2002 report, she was considering the position at its best. The October 2003 and April 2005 CIPU reports indicated that the position had worsened insofar as relating to the treatment of women. Returning women faced serious problems. This was confirmed by the terms of the Amnesty International report of May 2005.

[10] It was Miss Ross's submission that the Adjudicator had failed to give adequate reasons. Looking at paragraph 40 of the Determination one could not say whether or not the Adjudicator had made an adverse finding as to the petitioner's credibility. If he was making an adverse finding it was incumbent upon him to do so in clear terms.

[11] Miss Ross summarised her criticisms of the Adjudicator's Determination by stating that it was flawed in that it had not considered all the evidence which had been led before the Adjudicator. In particular, the Adjudicator had not had regard to the particular risks faced by a woman. His assessment of the CIPU report of October 2002 was not balanced. The Determination by the Adjudicator lacked clarity. There were references to the situation in Kabul whereas the petitioner came from Kandahar. The Adjudicator had treated the petitioner simply as a Shia Muslim and not as a Shia Muslim who was also a woman. Altogether, the Determination was flawed.

[12] Miss Ross then turned to consider the reasons for the decision appearing in the Determination of the Immigration Appeal Tribunal, No 6/3 of process. Paragraph 1 might be apt in relation to the first ground of appeal but it was not correct if it was intended to refer to all grounds of appeal. Paragraph 2 was no more than a factual statement. The assertion in paragraph 3 that there is no longer a risk of ill-treatment from the Taliban was not accurate if one had regard to the full terms of the CIPU report. Paragraph 4 made reference to the Adjudicator being entitled not to be satisfied that the petitioner was at risk as a result of anything that may have happened to her husband's brother but this was only part of what she had put forward in support of her appeal. Paragraph 5 which related to the discretion of the Secretary of State in relation to humanitarian protection and discretionary leave was neither here nor there. Paragraph 6 which stated that there were not arguable prospects of success was unreasonable, having regard to the terms of the Grounds of Appeal and the other material before the Immigration Appeal Tribunal.

Submissions for the respondent
[13] Mr Lindsay, on behalf of the respondent, accepted that the contentions which had been put forward by Miss Ross had been adequately raised either in the Grounds of Appeal or were sufficiently obvious that the Immigration Appeal Tribunal should have considered them in determining whether to grant permission to appeal. He was content to argue the case under reference to the Adjudicator's Determination. He did not, however, accept that the petitioner's argument was sound. It was his submission that the petition should be dismissed.

[14] Mr Lindsay emphasised that the way in which the petitioner's claim and appeal had been formulated predicated the way in which the Adjudicator had dealt with it. The petitioner's contention was that she was at risk from the Taliban because she was Shia Muslim. That was apparent from consideration of her witness statement, No 6/5 of process, the witness statement of her son, Ifthir Gafar, No 6/6 of process, and the skeleton argument that had been before the Adjudicator, No 6/7 of process, as well as the Determination of the Adjudicator. The contention of the petitioner before the Adjudicator had not been that she was at risk because she was a woman. Rather, it had been that she was fearful of the Taliban because she was a member of the Shia sect. The Adjudicator was dependent on the information that was put before him and the argument that was made to him. Mr Lindsay acknowledged that as appeared from paragraph 46 of the Determination, the Adjudicator had recognised the particularly vulnerable position of the petitioner as a female head of a household with three children. It did not follow that the Adjudicator was obliged to approach the appeal on the basis that these were the factors founded on by the petitioner. Had it occurred to the Adjudicator that it might be said that the petitioner's status as a female head of household put her at real risk of such ill-treatment as would amount to a breach of Article 3 in circumstances where the State offered no protection, fairness would have required that he invite further submissions on that point. It was Mr Lindsay's position that, in the course of an eloquent submission by Miss Ross, the original claim of fear of the Taliban because of the petitioner's status as a Shia, had metamorphosed into a claim based on the general lawlessness in Afghanistan and the petitioner's status as a woman. Mr Lindsay recognised that the Court would be anxious to avoid injustice if, particularly having regard to information which has emerged since the date of the Adjudicator's Determination, it appeared that there was a persuasive argument available to the petitioner. However, he drew my attention to Rule 353 of the Immigration Rules, HC 395, which allowed an applicant to make a fresh claim if it was based on circumstances which were sufficiently different from the material that had originally been considered.

[15] Mr Lindsay emphasised that the central issue in the appeal to the Adjudicator had been the danger presented by the Taliban, a non-state actor. It was entirely understandable that the Adjudicator, founding on the Home Office Operational Guidance Note, made the finding he did at paragraph 38 to the effect that the Taliban are no longer a force which could represent a threat to a person's safety. The formulation of paragraph 43 of the Determination was similarly to be understood by reference to the terms of the Guidance Note and the central issue raised by the petitioner herself. In R v Secretary of State for the Home Department ex parte Bagdanavicius the House of Lords had held that in a claim based on apprehended ill-treatment by non-state actors, in addition to establishing a real threat, it was necessary to establish that the state was unable to provide protection. However, in the present case it was his submission that as the Adjudicator had made a finding that the Taliban no longer presented a real threat, the question of the availability of state protection simply did not arise. It was therefore unnecessary for the Adjudicator to go on to consider the issue of the absence of a reasonable level of protection in the home country.

[16] Mr Lindsay turned to consider the particular paragraphs in the Determination. Paragraph 37 reflected the fact that the Secretary of State in his Refusal Letter had not accepted that the appellant was of Afghanian nationality. As appeared from paragraph 25 of the Determination, the Home Office Presenting Officer at the hearing before the Adjudicator had seemed to have been unable to make useful submissions and the Adjudicator had made the positive finding that the petitioner and her children were indeed Afghan nationals. Paragraph 38 addressed the precise issue which was before the Adjudicator and reflected the terms of Guidance Note. Paragraph 40 was not to be regarded as an adverse finding of credibility. Rather, the Adjudicator was commenting on the vague nature of the evidence. The references to Kabul in paragraphs 41 and 42 were to be understood by what the petitioner put in issue in her witness statement. The reference to the breakdown law and order and the poor humanitarian situation in Afghanistan as not being relevant for the purposes of a claim under reference to the Refugee Convention, which appears in paragraph 43, is an accurate statement because discrimination is of the essence in a claim based on the Convention: Adnan v Secretary of State for the Home Department [1999] 1 AC 293 at 302. The terms of paragraph 45 are accurate because the same threshold applies both for human rights and for Refugee Convention claims. In paragraph 46 the adjudicator is making what is usually referred to as recommendation. This is not unheard of and in recommending the Secretary of State to consider humanitarian protection and discretionary leave, the Adjudicator cannot be regarded as Wednesbury unreasonable because he had, at the same time, refused the petitioner's appeal.

[17] It was Mr Lindsay's submission that the petitioner had not demonstrated that the Adjudicator had made an error or acted unreasonably. Similarly, the Immigration Appeal Tribunal could not be said to have erred. The petition therefore fell to be dismissed.

The petitioner's submissions in reply
[18] Miss Ross briefly responded to Mr Lindsay in a second speech. In relation to what had been before the Adjudicator, it was her submission that there was sufficient in the witness statement and, in particular, the petitioner's reference to there being no-one to protect her, to have suggested to the Adjudicator that reliance was being placed on the petitioner's status as a woman. Mr Lindsay had emphasised that the petitioner had founded on the fact that she was a Shia Muslim but it was to be remembered that she was a Shia Muslim who was also a woman. Paragraph 46 demonstrated that the Adjudicator had noticed "the single woman point". While it might be that the petitioner could make a fresh application, she risked being faced with the response that what she was founding upon was not truly a new point. Miss Ross accepted what had been said by Mr Lindsay under reference to the decision of the House of Lords in Bagdanavicius but she drew attention to the information in the October 2002 CIPU report to the effect that there was no functioning legal system in Afghanistan. In conclusion, she accepted that the Taliban were no longer in power but that was not an end to the matter. As was apparent from the CIPU report, the attitudes associated with the Taliban were still influential in Afghanistan. It was incumbent upon the Adjudicator to have had regard to everything that was contained in the CIPU report. It might be the case that had the petitioner been a man fear of the Taliban would not have provided a sufficient basis for an appeal to succeed, but the petitioner was a woman and that was a matter which had been before the Adjudicator from the beginning.

Discussion and decision
[19] In my opinion, it is Mr Lindsay's submission that must be preferred. The petitioner's criticisms of the Adjudicator's Determination were critically dependent upon the contentions put forward by Miss Ross having previously been put to the Adjudicator on behalf of the petitioner, and the evidence to which she drew attention having been relied on before him. I am not satisfied that that was so. In a persuasive argument, Miss Ross placed emphasis on the petitioner's status as a woman, presumed to be a widow, without male protection and obliged to act as head of her family of four children, in a society which remains influenced by the ideas associated with the Taliban, where the State is unable to provide effect protection to vulnerable people such as herself. She drew attention to the fact that the petitioner comes from Kandahar where the risk of ill-treatment may be regarded as more acute than in Kabul. Miss Ross frankly conceded that what I would paraphrase as the "female head of household argument" may not have been focused in the Grounds of Appeal. I agree. It is true that paragraph 2 of the Grounds refers to the petitioner's particularly vulnerable position and the fact that the situation outside Kabul is not stable which has the result that the petitioner and her family cannot return to Kandahar. These are factors which were relied on by Miss Ross in her submissions but I do not find in paragraph 2 or any of the other paragraphs of the Grounds of Appeal an indication that the thrust of the petitioner's contentions was that she was a woman who, as a woman who was a head of household unprotected by adult male relatives, faced a real risk of ill-treatment amounting to contravention of her Article 3 rights. The same observation can be made about the petitioner's witness statement, No 6/5 of process, her son's witness statement, No 6/6 of process, the skeleton argument prepared on her behalf, No 6/7 of process, and the summary of the submissions made by the petitioner's representative which appears in paragraphs 30 to 37 of the Adjudicator's Determination. What all these documents point to, rather, is that the emphasis was on the petitioner's position as a member of the minority Shia Muslim religion whose family had suffered persecution under the Taliban. That that should have been the emphasis is understandable, given the terms of the Refugee Convention which underpinned the petitioner's section 69 appeal. Miss Ross's concession that the female head of household argument might not have been well focused, at least in the Grounds of Appeal, was immediately qualified by the assertion that it was nevertheless obvious and therefore should have been considered by the Adjudicator. I disagree. I doubt whether the petitioner's status as a female head of household had escaped the notice of the Adjudicator. As appears from paragraph 27 of the Adjudicator's Determination, the Home Office Presenting Officer made reference to it in the course of her submissions and in paragraph 46 of the Determination the Adjudicator points to these aspects of the petitioner's status as a basis for concluding that there might be compelling compassionate or humanitarian reasons why she should not be returned to Afghanistan. I would accept that, looking to his Determination, the Adjudicator did not consider the female head of household argument, as it was developed before me by Miss Ross. I would not accept that that was error on his part because, for perhaps entirely good reasons, this was not an argument that was put to him. There is no doubt but that an immigration decision maker must be astute to avoid a breach by the United Kingdom of its treaty obligations and, to the extent that that is different, breach of the human rights of those seeking asylum. It does not follow that an Adjudicator should take it upon himself to pursue every line of argument and enquire into every aspect of the evidence with a view to finding a basis upon which an appeal before him might succeed. It is for the appellant to make out his or her claim. It must be for the appellant to articulate what that claim is and how it is to be presented. Fairness to the appellant, as well as to the respondent, requires that the determination is made upon the basis of what is put before the Adjudicator for decision and not what the Adjudicator considers might have been put before him for his decision.

[20] Miss Ross presented her criticisms of the Adjudicator under three separate heads: (1) failure to have regard to all the material before him; (2) misdirection as to the threshold for Article 3 in breach in cases of apprehended ill-treatment by an non-state actor; and (3) failure to give adequate reasons. Each of these heads concentrates on a particular way in which it may be said that the Adjudicator's Determination was unlawful, but I see them to be linked in that they all depend upon the proposition that the female head of household argument was before the Adjudicator. As I am satisfied that it was not, I do not find any aspect of Miss Ross's criticism to be made out. The petition must accordingly be dismissed. However, as the parties recognised, that is not conclusive of the question as to whether the petitioner should remain in the United Kingdom. As I have already indicated, Mr Lindsay drew my attention to the provision for fresh claims which is made by rule 353 of the Immigration Rules. Rule 353 is in these terms:

"Where a human rights or asylum claim has been refused and 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 that has been previously been considered. The submissions will only be significantly different if the content:

(i) had not already been considered; and

(ii) taken together with the previously considered material, created a realistic prospect of success, notwithstanding its rejection...."

Now, Mr Lindsay made it clear that he could not commit the respondent on this matter, but from the perspective of counsel instructed by the respondent in relation to this application for judicial review, it appeared to him that a claim by the petitioner advancing the female head of household argument would satisfy the threshold requirements for a fresh claim in terms of rule 353, should the petitioner's application for judicial review be dismissed on the ground that the female head of household argument had not been before the Adjudicator. I have refused this application for judicial review and dismissed the petition upon the basis put forward by Mr Lindsay. It would appear to follow that it would be open to the petitioner to make a fresh claim in terms of rule 353. Moreover, the Adjudicator found the circumstances of the petitioner to be such that she merited consideration on humanitarian or compassionate grounds. It may be that the Secretary of State will take a similar view.

[21] I reserve all questions of expenses.