30 27 28 (Risk - PDPA Member) Afghanistan CG  UKIAT 06500
Date of hearing: 21 & 25 June 2002
Date Determination notified: 13 February 2003
Index to this Determination
|a.||Introduction and brief background||1-2|
|b.||The evidence and cross-examination of Appellant 30||3-10|
|c.||The evidence and cross-examination of Mr Sapand||11|
|d.||The evidence and cross-examination of Appellant 27 (the wife of Appellant 30)||12-15|
|e||The evidence and cross-examination of Appellant 28||16-19|
|f.||The evidence and cross-examination of the expert witness, Mr Peter Marsden||20-44|
|g.||Relevant country of origin information presented to us by the parties||45-50|
|h.||The submissions on behalf of the three Appellants||51-57|
|i.||The submissions on behalf of the Respondent||58-70|
|j.||The issues before us||71-73|
a. Introduction and Brief Background
b. The Evidence and Cross-Examination of Appellant 30
c. The Evidence of Mr Sapand
d. The Evidence of Appellant 27
e. The Evidence of Appellant 28
f. The Evidence of Mr Peter Marsden
"It is reasonable for [Appellant 30] to fear that he might be targeted because of his and his family's connections with the former Soviet-backed Government of Muhammed Najibullah. Although the new Afghan interim administration has been in power since 22nd December 2001, on the basis of the Bonn Agreement of 6th December 2001, it is not in a position to provide protection to the population beyond the confines of Kabul and, even in Kabul, it has not been able to provide sufficient security to protect the population from arbitrary action. The regime includes former Mujahadeen who were engaged in armed conflict with the Soviet occupying forces and the Soviet-backed Government from 1978 to 1992. One particular group of these, a party known as Jamiat-i-Islami, which represents the Tajik ethnic group, now has control of the defence and interior ministries and interior services. Although efforts have been made to establish a national army, most of the forces maintaining order in Kabul are from this group of former Mujahadeen and there have been a number of incidents which indicate that the regime does not have effective control of these forces. Those with scores to settle would therefore feel free to act with impunity. There is, therefore, a significant risk that those linked to Jamiat-i-Islami, other Mujahadeen groups or Taliban will target [Appellant 30] and such targeting will result in the use of violence."
"By the time the Taliban had fled the Afghan city in November, this ancient city, slumped in a once fertile valley surrounded by mountains, was a bombed-out corpse. Now that wreck is teeming with energy and hope. In six months, Kabul has come alive, rushing headlong to embrace the 21st century.
Since January, more than 1 million Afghans, buoyed with an optimism denied them since the Soviet invasion 23 years ago, have returned to reclaim their birthright. More than 1,500 families arrive in Kabul each day.
With them, come the aid agencies, the NGOs, the United Nations teams and their gleaming while four wheeled drives, hundreds of journalists, and foreign businessmen bullish enough about Afghanistan's future to set up shop here, trading in anything from tea to bathrooms …
Thousands of men have shed their traditional dress, the Shalwar Kamiz, for Western slacks, open-necked shirts and imitation Italian loafers: thousands of women are out in pretty dresses and headscarves, mingling with the sheep, new Indian Tata buses and bicycles."
It goes on to state that restaurant,s shut for years, are now re-opening, with one even selling beer. A decent bottle of wine or Russian vodka can be obtained from under the counters, along with many Western foods.
g. Relevant Country of Origin Information
"As UNHCR does not yet have a public domain paper on the above issue, the following advice is drawn from our internal document, namely Preliminary Position Paper, considerations relating to the return of Afghan nationals, who are currently outside their country of origin, in countries of asylum not in the immediate region, February 2002.
We take the view that, notwithstanding the positive changes and the efforts of the international community, there remain individuals or groups of Afghans, who could face serious problems, including physical danger, were they to return at this time. Current information indicates that those who might be at risk of serious violence, harassment or discrimination include persons at risk of persecution on political grounds by groups now in control of their area or origin of persons originating and returning to areas where they constitute an ethnic minority. Similarly, those who have sympathised with, or are perceived to have been associated with, the Taliban regime which came to power in Kabul in 1996, may be also at risk. Another risk category may be persons associated with, or are perceived to have been associated with, the Communist pre-Mujahadeen regime which was overthrown in 1992 and those who campaigned for a secular state.
The above mentioned categories are not exhaustive. The situation in Afghanistan is nothing if not volatile, the UNHCR has no intention categorically to rule out any person or group of persons being considered for refugee status. The key principle is that each case must be given full and fair consideration on its own merits.
Please note that given the complex, fluid and still fragile situation in Afghanistan, UNHCR takes the view that there should be no enforced returns to Afghanistan at the present time. It is our understanding that the Home Office holds the same view.
As regards the basis of the advice offered above, you will be aware that the UNHCR's mandate is to work with States to ensure that refugees receive the international protection they need. Under Article 35 of the 1951 Convention relating to the protection of refugees, UNHCR is auto-tasked, again in co-operation with States, to supervise the implication of the provisions to the 1951 Convention. In pursuance of these functions over the course of the last five decades, UNHCR has, among other things, maintained an extensive field presence that gives it a first-hand view of the circumstances that cause refugees to flee. UNHCR's positions on Afghanistan and other situations are therefore grounded in its familiarity with the conditions on the ground as well as its expertise and experience in matters relating to the international protection of refugees."
"We can confirm that our comments regarding the groups of Afghans referred to in the above mentioned bulletin are compatible with the risk categories mentioned in our 14th June letter. The risk of persecution of particular groups upon their return to Afghanistan is not limited to high-ranking members of the former Communist regime, Ismailis and Shi-ite clergymen.
Both documents are consistent in reflecting UNHCR's view that there continue to be individuals and groups who may be at risk if repatriated to Afghanistan. Both documents make mention of examples of such individuals and groups. UNHCR maintain that the examples are indicative only, and there are persons not mentioned in the UNHCR documents who may be at risk."
The Bonn Agreement
"Real Time Evaluation of UNHCR's Response to Afghanistan Emergency"
United Nations Press Release dated 6th June 2002
The Times Newspaper Article dated 13th June 2002 "Afghanistan War-Lords Give Peace a Chance"
The Times Newspaper Article dated 14th June 2002 "Afghan Capital Embraces Hope and Mr Bean"
The Guardian Unlimited Report dated 14th June 2002 "Democracy Born Again in Kabul"
BBC News Report dated 15th June 2002 "Loya Girga Diary : Day 5"
Afghan News Network Report dated 19th June 2002 "New Look Kaizi Cabinet Wins Approval from Loya Girga"
BBC News Report dated 20th June 2002 "Turkey takes on Afghan Peace Keeping"
a A copy of the Associated Press article dated 23rd June 2002 entitled "Ex-Afghan Official Questions Cabinet"; and
b A copy of a BBC News article of 24th June 2002.
He submitted that these provided evidence of the difficulties that emerged in relation to Yunis Qanooni's appointment in the position as Education Minister in the transitional Government. The second article confirmed that he has taken on the role of National Security Advisor. The Associated Press report states that Qanooni had resigned from the job as Interior Minister, one of the most powerful Government posts, at the start of the Loya Girga. The Interior post had been allocated to a Pashtun and not to Qanooni, who was an ethnic Tajik, in an effort to bring ethnic balance to the new line-up. The report goes on to state that Qanooni had not decided whether he would take up the appointment to the position as the Education Minister and Presidential National Security Advisor. He was stated to have questioned the legitimacy of the Cabinet appointment and the article states:
"Throughout the Loya Girga, there were grumblings that the 1650 delegates were being excluded from the real decision making by war-lords and other power blocs. However, Qanooni's comments were the first public criticism from an influential figure."
"10. UNHCR have advised that serious problems could continue to be faced by some individuals or groups if they are returned to Afghanistan at the current time. In particular, this could be on political grounds depending on the group in control of their area or origin or on ethnic grounds for persons originating from and returning to an area where they constitute an ethnic minority. In addition, those who were associated with or are perceived to have been associated with, either former Taliban or pre-1992 Communist Regimes might face serious problems on return."
h. The Appellants' Submissions
i. The Respondent's Submissions
j. The Issues
a. From an objective and subjective assessment of the accepted facts in relation to these Appellants, do they either individually or collectively have a well-founded fear of persecution on return to Kabul in Afghanistan? If so,
b. Is that risk of persecution for reasons of one or more of the five Refugee Convention reasons?
"… owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a social group or political opinion, is outside the country of his nationality and is unable or unwilling owing to such fear, to avail himself of the protection of that country …"
a) He was a senior cadre in the PDPA for a lengthy period of time (approximately 1997-1991). While not at ministerial level in the Najibullah regime the evidence establishes that he was one step immediately below that.
b) While his role was largely an administrative one for a lengthy period it is clear and accepted by us that he also had a senior political advisory role with the ministerial level administrators, such as Dr Zeary, to whom he reported. We agree that in the context of the PDPA very senior administrative positions must be considered as having been highly political in their nature.
c) From approximately 1989 to 1991 the appellant fought in defence of Kabul for the Najibullah regime against the Mujahadeen. While he managed to keep a low profile during the time of the Mujahadeen and Taliban regimes, he was at a level of a real risk during all of that time.
d) He, and the other two appellants, are Pashtun (Saif sub-tribe) and there are some risks associated with higher profile members of the Pashtun from radical elements of the Jamiat-i-Islami and other Islamic fundamentalists groups as has been evidenced by the assassination of the former tourist minister and, even after this appeal was heard, another notabe Pashtun, the Vice President, Abdul Qadir.
e) Set against the ability of the appellant to keep a low profile during the Mujahadeen and Taliban regimes, we must accept the fact that if he was returned at this time he would have an elevated and more noticeable profile because there is a reasonable likelihood that it would known that he had been on the hijacked plane. This factor, on its own has a real chance of causing understandable interest to many in Afghanistan, particularly given the appellant's relatively senior or high level position in the former PDPA government.
f) The above interest must be coupled with the fact that he worked for Ariana Airlines as a Ticketing Manager. We consider that it is reasonable to conclude that this may cause further interest and raise speculation or suspicion that he had some connection with the hijacking. (This of course has not been accepted by the UK authorities). This suspicion would lead to a real risk of difficulties with remnants of the Taliban regime who may still be operative. While it may be inappropriate to assume that this is still an important factor, Mr Marsden did not consider it to be the case. We have formed the view, after seeing and hearing him in a lengthy hearing, that the appellant appears as a mature educated man who gives the air of being a professional member of the Afghan elite. This may distinguish him from the profiles of many others on the hijacked airplane who, we are sure would attract less interest.
g) The delay of this appellant in returning to his country, despite the fall of the Taliban and the substantial changes in the regime, might also cause resentment and prejudice from fundamentalist Islamic groups. It could give the impression that he was not a supporter of the present regime, that he has pro-western ideas and philosophies and is anti-Islamic.
h) The appellant's role in Afghani affairs in London and his clear association with very senior leadership in the PDPA while in the United Kingdom may also be another contributing factor to those seeing him as being pro-western, secular or anti-Islamic.
a) The appellant successfully maintained a low profile during the period of the Mujahadeen and Taliban regimes.
b) He had employment, albeit virtually non existent at times, when the Ariana Airlines would not fly, during that time.
c) He was involved in two minor incidents only with the Mujahadeen regime. It is possible that these could be argued to be more accidental in their nature rather than direct targeting of the appellant.
d) While the appellant is a Pashtun it of course must be recognised that the Pashtun are the largest ethnic group within Afghanistan and clearly this appellant, nor the other two, could be considered to be at risk simply because of their Pashtun ethnicity.
e) The level of risk at which Mr Marsden would have placed this appellant he considered was "very high". We consider is based on many speculative assumptions and to be excessive when balanced against all of the evidence that has been presented before us.
A R Mackey